[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Linert v. Foutz, Slip Opinion No. 2016-Ohio-8445.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2016-OHIO-8445

LINERT ET AL., APPELLEES, v. FOUTZ; FORD MOTOR COMPANY, APPELLANT. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Linert v. Foutz, Slip Opinion No. 2016-Ohio-8445.] 

R.C. 2307.76—Trial court properly refused to instruct jury on manufacturer’s 

postmarket duty to warn consumer. 

(No. 2014-1940—Submitted January 5, 2016—Decided December 29, 2016.) 

APPEAL from the Court of Appeals for Mahoning County, 

No. 11 MA 00189, 2014-Ohio-4431. 

_____________________ 

 O’CONNOR, C.J.

{¶ 1} In this appeal, appellees, Ross and Brenda Linert, contend that 

appellant, Ford Motor Company, is responsible for the severe injuries Ross 

sustained in a motor-vehicle accident caused when an intoxicated driver, Adrien 

Foutz, struck Ross’s 2005 Crown Victoria Police Interceptor (“CVPI”) from 

behind, triggering a fuel-fed fire. 
SUPREME COURT OF OHIO

2

{¶ 2} We address the Linerts’ claim that the trial court should have 

instructed the jury on R.C. 2307.76(A)(2), Ohio’s statute governing manufacturers’ 

postmarket duty to warn consumers of risks associated with a product that are not 

discovered until after the product has been sold. 

{¶ 3} We hold that the trial court properly refused to provide an instruction 

on the postmarket duty to warn, and accordingly, we reverse the appellate court’s 

judgment. 

RELEVANT BACKGROUND

The accident giving rise to the Linerts’ claims

{¶ 4} On November 11, 2007, Ross Linert, a veteran police officer with the 

Austintown Township Police, was on patrol in a department-issued 2005 CVPI 

manufactured by Ford. Ross was traveling at approximately 35 miles per hour, the 

posted speed limit, when he was struck from behind by a car driven by Foutz. 

Foutz, whose blood-alcohol level was more than three times the legal limit in Ohio, 

was in a 4,000 pound Cadillac Deville traveling at speeds estimated at 90 to 110 

miles per hour—three times the posted speed limit. 

{¶ 5} Ross alleged that upon collision, the CVPI’s fuel-sender unit1

separated from the fuel tank, creating a hole in the fuel tank that released fuel and 

ignited, spreading fire from the rear of the vehicle into the passenger compartment. 

Ross was able to escape, but sustained severe, painful burns to nearly a third of his 

body, including his face, head, arms, and legs. He is now disabled. 

The Linerts’ claims 

{¶ 6} Ross initially filed a claim for relief in negligence against only Foutz.2

 

In an amended complaint, Ross and Brenda Linert subsequently added product-

 

1

 A fuel-sender unit, or fuel-delivery module, sends fuel from the fuel tank to the engine and 

indicates to the driver how much fuel is in the tank. 

2

 Foutz asserted that Ford’s flawed product caused Ross’s severe injuries. The Linerts ultimately 

dismissed with prejudice their claims against Foust on the day trial began. 
January Term, 2016 

3

liability and malice claims against Ford to the negligence action against Foutz. The 

Linerts’ failure-to-warn claim3 asserts that if Ford had warned customers of risks 

associated with the placement of the vehicle’s fuel tank and the lack of a firesuppression system, Ross would have survived his accident with minor injuries. 

Ford counters that the trial court properly refused to instruct the jury on R.C. 

2307.76(A)(2), Ohio’s statute governing manufacturers’ postmarket duty to warn 

consumers of risks associated with the product that are not discovered until after 

the product has been sold, because the statute does not require warnings on all 

known dangers. 

The Panther-platform design 

{¶ 7} Ford introduced the Panther-platform design in 1979 and used it for 

several large civilian and law-enforcement four-door sedan models, including the 

Mercury Grand Marquis, the Ford Crown Victoria, the Ford Crown Victoria Police 

Interceptor, and the Lincoln Town Car. Jablonski v. Ford Motor Co., 2011 IL 

110096, 955 N.E.2d 1138, ¶ 8. The design of these models presented a different 

fuel-tank configuration in which the tank was located aft of the axle, but between 

the two rear wheels, about 40 inches from the rear bumper and in front of the trunk. 

Id. at ¶ 9. By 1981, however, Ford began designing new passenger-car models with 

the fuel tank located forward of the axle. Id. A decade later, most new Ford models 

were being manufactured with fuel tanks forward of the axle. Id. 

{¶ 8} There have been many claims of defects associated with Pantherplatform vehicles in litigation around the country for many years. See, e.g., Nolte 

 

3 Crashworthiness claims, sometimes framed as “second collision” or “injury enhancement” claims, 

arise when a defect in a motor vehicle allegedly enhances or increases the injuries sustained by a 

driver or passenger in the vehicle. See Gable v. Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, 

816 N.E.2d 1049, ¶ 24-27; see also Lally v. Volkswagen Aktiengesellschaft, 45 Mass.App.Ct. 317, 

328-329, 698 N.E.2d 28, 38 (Mass.App.1998) (describing plaintiffs’ burden of proof for injuries 

sustained in crashworthiness cases); Larsen v. Gen. Motors Corp., 391 F.2d 495 (8th Cir.1968) (first 

reported case recognizing crashworthiness doctrine). 
SUPREME COURT OF OHIO

4

v. Ford Motor Co., 458 S.W.3d 368 (Mo.Ct.App.2014) (negligence and designdefect claims alleging improper placement of fuel tank in CVPI that was struck by 

motorist, causing a fire that killed a state trooper and severely injured another 

person, who were both occupants of a CVPI); Annelli v. Ford Motor Co., 

Conn.Super.Ct. No. 4001345, 2007 WL 3087959 (Oct.4, 2007) (certifying class of 

consumers alleging design defects in the placement of fuel tanks in CVPI and other 

Panther-platform vehicles); In re Ford Motor Co. Crown Victoria Police 

Interceptor Prods. Liab. Litigation, 259 F.Supp.2d 1366 (J.P.M.L.2003) (ordering 

that three cases brought by citizens against Ford for defective design and placement 

of the fuel tank in the CVPI be included in a multidistrict action in which 

municipalities were the original plaintiffs); see also Perry & McGroder, Crash-andBurn Cruisers that Kill, Trial (Nov.2003) 52 (describing claims arising from fires 

in CVPIs). The Linerts’ case presents a similar claim. 

Evidence at trial 

{¶ 9} The Linerts’ evidence at trial supported the theory that Ford’s design 

of the CVPI was defective because of the placement of the fuel tank in the vehicle. 

To establish that claim, they presented the testimony of Mark Arndt, an engineer 

and defective-design expert who studies fuel-system failures in motor vehicles, 

including the CVPI, and postcrash fires in particular types of motor vehicles. 

{¶ 10} Arndt testified that the preferred placement of a gas tank in a vehicle 

is forward of the axle in the “midship” location because there, the tank would be 

less likely to be crushed or punctured during a collision. And he testified that Ford 

could have placed the CVPI’s gas tank forward of the axle. 

{¶ 11} Arndt also opined that the CVPI’s fuel tank was “extremely 

vulnerable” to punctures from items in the trunk of a police cruiser and testified 

that Ford had developed a “trunk pack” because of the number of “failures” in 

crashes in which items in police cruisers, e.g., jacks, crowbars, axes, and guns, had 

punctured the CVPI’s trunk wall and then the fuel tank. The packs contained layers 
January Term, 2016 

5

of plastic and Kevlar, a tough material used in bulletproof vests, to prevent items 

in the trunk from penetrating the trunk wall. And he described the pack as 

promoting “loading the trunk in a way that did not align objects in the trunk so that 

they would go through the tank.” 

{¶ 12} But more relevant for purposes here is Arndt’s testimony that there 

had been 34 other accidents in which a Panther-platform vehicle was involved in a 

rear-impact collision and sustained damage to its fuel-containment system, 

resulting in a fire and burn injury or death to a vehicle’s occupant. Of those 34 

prior incidents, Arndt indicated that six involved the dislodgement of the fuelsender unit. 

{¶ 13} Linert used this evidence to establish that Ford had had notice of the 

alleged defects with the design, placement, and manufacturing of the fuel system 

in the CVPI and that Ford could have used an alternative design for the placement 

of the fuel tank that “would have performed without leakage.” Notably, however, 

Ford secured several concessions during its cross-examination of Arndt. 

{¶ 14} Arndt conceded that there is a risk of postcollision fire for all 

vehicles, regardless of where the fuel tank is located, and that no fuel system is 

guaranteed to be leak-proof in a high-speed, rear-impact collision, no matter how 

“solid” the design of a fuel system or the placement of the fuel tank in the vehicle. 

Fuel-system ruptures, punctures, or compromises cannot be eliminated. He also 

admitted that the puncture of a fuel tank during an accident does not mean the 

vehicle is defective, conceding that the risk of a “rear-end postcollision fire for 

police vehicles is rare” and that fires in CVPIs caused by rear impact are the most 

severe impacts on the roadways. 

{¶ 15} It was undisputed at trial that in October 2007, two years after the 

Austintown Police Department acquired Linert’s CVPI, Ford the “crimp 

improvement project” or “crimp tooling project” to increase, by one millimeter, the 
SUPREME COURT OF OHIO

6

amount of sheet metal that was folded over the fuel-sender retention ring.4 The 

project began after Jon Olson, a Ford design-analysis engineer, heard of “realworld” incidents regarding fuel-tank dislodgments and asked Ford’s manufacturing 

manufacturing-process team, including Ford fuel-tank-manufacturing-process 

engineer Steven Haskell, if the crimp could be improved. 

{¶ 16} Haskell and other Ford manufacturing-process engineers testified 

that the project began in January 2007 and that by October 2007, the crimp had 

been improved. At the same time, however, Haskell and other Ford witnesses made 

clear that Ford had met all its manufacturing specifications or standards for the fuel 

tank before and after the crimp-tooling project. They agreed, however, that the 

improvement made the fuel tank safer, more crashworthy, and more “robust.” And 

although Haskell acknowledged that the improved crimp could make the fuel tank 

more crashworthy in some accidents, he never quantified or qualified that 

possibility. Indeed, earlier in his testimony, Haskell had made clear that he was not 

“a crash expert” and could not testify as to how the fuel tank would perform “in a 

crash scenario.” Although Haskell opined that the crimps from the improvement 

project were a “little better,” the actual change in strength was difficult to measure. 

The verdict and appeals 

{¶ 17} After a two-week trial, the trial court instructed the jury on the claims 

of defective design, defective manufacturing, and failure to warn. The instructions 

given on the failure-to-warn claim related only to whether Ford had failed to warn 

at the time of marketing the CVPI. The trial court refused to instruct the jury on 

the issue whether Ford had had a duty to give a postmarketing warning of a risk 

associated with the CVPI. 

 

4

 In the CVPI, the fuel-sender unit is bolted to a retention ring that is crimped into place, with steel 

from the fuel tank, around a 118 millimeter (between four and five inches) hole in the upper front 

face of the fuel tank. 
January Term, 2016 

7

{¶ 18} The jury deliberated for approximately two hours before it returned 

a verdict in favor of Ford on all of the Linerts’ claims, finding that they had failed 

to prove by a preponderance of the evidence that Ford had improperly designed the 

CVPI with regard to the placement of the fuel tank, defectively manufactured the 

CVPI fuel tank, or failed to adequately warn Ross of the risks associated with the 

CVPI. The trial court entered judgment in favor of Ford. 

{¶ 19} The Linerts appealed, asserting 11 assignments of error. The 

appellate court rejected most of those claims but agreed with the Linerts’ assertion 

that the trial court had erred by not instructing the jury on the Linerts’ claim that 

Ford had had a duty to give consumers a postmarketing warning. In so doing, the 

appellate court focused on the Linerts’ contentions that an instruction on the 

postmarketing duty to warn was necessary so that the jury would not ignore Ford’s 

postsale knowledge of the risk of fire in the CVPI and that a reasonable 

manufacturer would have given a warning of that risk to consumers, including to 

the police community. 2014-Ohio-4431, 20 N.E.3d 1047, ¶ 23-24. 

{¶ 20} The appellate court then made clear its view of the nexus between 

the duty to warn and the risk posed by the product: 

Just because the jury found the CVPI was not defective in 

manufacture does not mean that [the Linerts’] failure to warn claim 

must fail. A failure to warn claim involves failure to warn of a 

“risk,” not a failure to warn of a “defect.” The two terms are not the 

same. A “manufacturing defect” is “an imperfection in a product 

that departs from its intended design even though all possible care 

was exercised in its assembly and marketing.” Black’s Law 

Dictionary 174 (Pocket Ed. 1996). A “risk,” however, is “a known 

danger to which a person assents, thus foreclosing recovery for 

injuries suffered.” Black’s Law Dictionary 554 (Pocket Ed. 1996). 
SUPREME COURT OF OHIO

8

In a strict products liability case for failure to warn, “the failure to 

warn of unreasonable dangers associated with the product 

constitutes the defect.” Sapp v. Stoney Ridge Truck Tire, 86 Ohio 

App.3d 85, 619 N.E.2d 1172 (6th Dist.1993). In this case then, 

Ford’s failure to warn of a known risk associated with the CVPI’s 

fuel tank could constitute a defect. Thus, a jury instruction on postmarketing failure to warn was warranted regardless of the jury’s 

finding on [the Linerts’] manufacturing defect [claim]. 

Id. at ¶ 25. 

{¶ 21} After then describing the evidence that the Linerts had presented 

about Ford’s crimp-improvement project, the appellate court concluded that 

because the Linerts had presented evidence to the jury that Ford knew of some 

incidents of sender-unit dislodgements, had looked into those incidents, and had 

successfully increased the amount of crimping and created “a stronger, more robust 

union of the sender unit to the fuel tank and a more crashworthy vehicle,” there was 

sufficient evidence to warrant a jury instruction on postmarketing failure-to-warn 

claim. Id. at ¶ 29. 

{¶ 22} Notably, the appellate court also held that the trial court had erred in 

denying the Linerts the opportunity to present evidence that Ford had developed a 

fire-suppression system for the CVPI and had offered it to consumers after the sale 

of Ross’s CVPI to the Austintown Police Department. As the appellate court 

explained in its opinion, the Linerts attempted to introduce the deposition testimony 

of Richard Cupka Jr., the former leader of the CVPI Technical Task Force. Cupka 

testified that Ford designed and put in place a fire-suppression system on CVPIs 

and that Ford had started to design that system before Ross’s accident and it had 

become available after the accident. Id., 2014-Ohio-4431, 20 N.E.3d 1047, at 

¶ 85-86. 
January Term, 2016 

9

{¶ 23} The appellate court found that the Linerts wanted to introduce 

Cupka’s testimony for two purposes: to establish that the 2005 CVPI was 

defectively designed because it did not include a fire-suppression system and to 

demonstrate that Ford knew of the risk of fire in the CVPIs. Id. at ¶ 86. Although 

the appellate court recognized that the trial court had excluded Cupka’s testimony 

because the Linerts had not provided expert testimony to establish that if a firesuppression system would have been in Ross’s CVPI, it would have prevented the 

fire and his injuries, it held that the trial court erred in failing to consider that the 

Linerts also offered evidence of the fire-suppression system to meet their burden of 

establishing that Ford had notice of a potential fire risk in the CVPI. Id. at ¶ 89-92. 

{¶ 24} The court of appeals proceeded to hold that the trial court had abused 

its discretion by excluding evidence of the fire-suppression system, id. at ¶ 92, and 

it ordered a new trial on the Linerts’ postmarketing failure-to-warn claim. We 

accepted Ford’s discretionary appeal from that judgment on two propositions of 

law: 

A “risk” that triggers a post-marketing duty to warn under Ohio 

Revised Code 2307.76 is not merely any “known danger,” but must be a 

risk about which a reasonable manufacturer would warn in light of the 

likelihood and likely seriousness of harm. 

A product manufacturer’s implementation of a post-marketing 

product improvement does not trigger a post-marketing duty to warn. 

See 142 Ohio St.3d 1463, 2015-Ohio-1896, 30 N.E.3d 973. 

ANALYSIS 

{¶ 25} Although our analysis is focused only on the postmarket duty to 

warn, in order to understand that duty, it is necessary to review the statutory scheme 

that gives rise to it. 
SUPREME COURT OF OHIO

10 

{¶ 26} Unless the danger posed by a product is generally known and 

recognized by a consumer,5 Ohio imposes on manufacturers two related duties to 

warn: a duty to warn of dangers known to the manufacturer at the time of sale of 

the product and a duty to warn of dangers that were not obvious at the time of sale 

but became known to the manufacturer after the product was sold to a consumer. 

These duties are codified in R.C. 2307.76: 

(A) Subject to division[ ] (B) * * * of this section, a product 

is defective due to inadequate warning or instruction if either of the 

following applies: 

(1) It is defective due to inadequate warning or instruction at 

the time of marketing if, when it left the control of its manufacturer, 

both of the following applied: 

(a) The manufacturer knew or, in the exercise of reasonable 

care, should have known about a risk that is associated with the 

product and that allegedly caused harm for which the claimant seeks 

to recover compensatory damages; 

(b) The manufacturer failed to provide the warning or 

instruction that a manufacturer exercising reasonable care would 

have provided concerning that risk, in light of the likelihood that the 

product would cause harm of the type for which the claimant seeks 

 

5

 “As a general rule, a manufacturer does not have a duty to warn consumers of dangers inherent in 

the use of the manufacturer’s product if those dangers are generally known and recognized by the 

ordinary consumer.” Gawloski v. Miller Brewing Co., 96 Ohio App.3d 160, 163, 644 N.E.2d 731 

(9th Dist.1994), citing 2 Restatement of the Law 2d, Torts, Section 402A, at 352-353, Comments i 

and j (1965); Sapp v. Stoney Ridge Truck Tire, 86 Ohio App.3d 85, 98-99, 619 N.E.2d 1172 (1993). 

“In other words, a defendant’s statutory duty to warn is obviated when the dangerous condition 

causing injury to the plaintiff is open and obvious or commonly known.” Lykins v. Fun Spot 

Trampolines, 172 Ohio App.3d 226, 2007-Ohio-1800, 874 N.E.2d 811, ¶ 15. 
January Term, 2016 

11 

to recover compensatory damages and in light of the likely 

seriousness of that harm. 

(2) It is defective due to inadequate post-marketing warning 

or instruction if, at a relevant time after it left the control of its 

manufacturer, both of the following applied: 

(a) The manufacturer knew or, in the exercise of reasonable 

care, should have known about a risk that is associated with the 

product and that allegedly caused harm for which the claimant seeks 

to recover compensatory damages; 

(b) The manufacturer failed to provide the post-marketing 

warning or instruction that a manufacturer exercising reasonable 

care would have provided concerning that risk, in light of the 

likelihood that the product would cause harm of the type for which 

the claimant seeks to recover compensatory damages and in light of 

the likely seriousness of that harm. 

(B) A product is not defective due to lack of warning or 

instruction or inadequate warning or instruction as a result of the 

failure of its manufacturer to warn or instruct about an open and 

obvious risk or a risk that is a matter of common knowledge. 

R.C. 2307.76(A) and (B). 

{¶ 27} To prove a “failure to warn” claim, a plaintiff must establish that a 

duty to warn against reasonably foreseeable risks exists, a breach of that duty 

occurred, and the plaintiff’s injuries were proximately caused by the breach. Miller 

v. ALZA Corp., 759 F.Supp.2d 929, 934 (S.D.Ohio 2010), citing Graham v. Am. 

Cyanamid Co., 350 F.3d 496, 514 (6th Cir.2003). 

{¶ 28} A manufacturer provides “inadequate warnings if it knew or 

reasonably should have known of the risk in the exercise of ordinary care and failed 
SUPREME COURT OF OHIO

12 

to take precautions that a reasonable person would take in presenting the product to 

the public.” Welch Sand & Gravel, Inc. v. O & K Trojan, Inc., 107 Ohio App.3d 

218, 226, 668 N.E.2d 529 (1st Dist.1995). But a manufacturer is not liable for 

failing to warn unless a plaintiff shows that the manufacturer failed to take the 

precautions that a reasonable person would take in presenting the product to the 

public. Crislip v. TCH Liquidating Co., 52 Ohio St.3d 251, 556 N.E.2d 1177 

(1990), paragraph two of the syllabus. See also Doane v. Givaudan Flavors Corp., 

184 Ohio App.3d 26, 2009-Ohio-4989, 919 N.E.2d 290, ¶ 21 (1st Dist.). 

{¶ 29} Although at least one of our appellate courts has suggested that the 

duty to warn at the time of marketing continues after the product is sold, Zager v. 

Johnson Controls, Inc., 2014-Ohio-3998, 18 N.E.3d 533, ¶ 36 (12th Dist.), we 

clarify that a claim for failing to warn after the product is sold is separate from a 

claim that a warning should have been given at the point of sale. 

{¶ 30} Undoubtedly, the two warnings are related. But properly 

understood, they represent two conceptually distinct warnings. 

{¶ 31} “A post-sale warning could not be given at the point of sale because 

a manufacturer would not have knowledge to give it.” Patton v. Hutchinson WilRich Mfg. Co., 253 Kan. 741, 754-755, 861 P.2d 1299 (1993). See also Cover v. 

Cohen, 61 N.Y.2d 261, 275, 473 N.Y.S.2d 378, 461 N.E.2d 864 (1984) (“Although 

a product [can] be reasonably safe when manufactured and sold and involve no then 

known risks of which warning need be given, risks thereafter revealed by user 

operation and brought to the attention of the manufacturer or vendor may impose 

upon one or both a duty to warn”). The postmarket duty to warn recognizes that 

“[e]ven when a product is not defective at the time of sale, a manufacturer may be 

subject to liability if it subsequently learns of dangers attendant to the use of the 

product or methods to avoid serious risks and fails reasonably to communicate that 

information to product users.” Henderson & Twerski, The Products Liability 

Restatement in the Courts: An Initial Assessment, 27 Wm.Mitchell L.Rev. 7, 28 
January Term, 2016 

13 

(2000). “Accordingly, courts apply the traditional failure to warn claim when a 

manufacturer or seller had knowledge of a defect at the time of sale and apply the 

postsale failure to warn claim when a manufacturer or seller learns of the defect 

after the time of sale.” Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 542 

(Tenn.2008), citing Schwartz, The Post–Sale Duty to Warn: Two Unfortunate 

Forks in the Road to a Reasonable Doctrine, 58 N.Y.U. L.Rev. 892, 893 (1983). 

{¶ 32} In a postmarket duty to warn, the fact-finder’s focus must be on any 

evidence of a risk associated with the product of which the manufacturer acquires 

knowledge after the sale of the product. Thus, the appellate court improperly relied 

on the evidence of Ford’s fire-suppression kit and the trunk pack in finding that the 

jury should have been instructed on a postmarket duty to warn. Although the firesuppression kit for CVPIs that Ford designed was offered to law-enforcement 

consumers after the sale, the risk of fire from fuel-containment systems, including 

fuel-sender units, was well known to Ford prior to the sale. That evidence was 

relevant to the Linerts’ claim for failure to warn at the time of sale—a claim that 

the jury rejected—but it is not relevant to a postmarket duty to warn under R.C. 

2307.76(A)(2). 

{¶ 33} The Linerts’ claim fails for a second reason. 

{¶ 34} A determination whether a manufacturer acted reasonably in failing 

to give a warning to consumers after a product has been sold must include 

consideration of the likelihood of the risk of harm to consumers and the seriousness 

of the harm that the risk presents. Brown v. McDonald’s Corp., 101 Ohio App.3d 

294, 300, 655 N.E.2d 440 (9th Dist.1995). For purposes here, we accept that the 

seriousness of the harm was established at trial. But the likelihood of that risk 

certainly was not. 

{¶ 35} The Linerts’ burden was to establish that Ford had gained knowledge 

of the likelihood of a risk of harm after the sale of the CVPI to the Austintown 
SUPREME COURT OF OHIO

14 

Police Department that warranted Ford’s giving a warning to the Austintown Police 

Department and other consumers. There was a paucity of such evidence.6 

{¶ 36} Even in briefing and argument before this court, counsel for the 

Linerts failed to clearly articulate the facts and evidence that would give rise to such 

a duty. At best, we are presented with the contention, in the Linerts’ merit brief, 

that there were six incidents in which Panther-platform vehicles caught fire as a 

result of a fuel-sender-unit failure, and the Linerts’ counsel’s more specific 

suggestion at oral argument that all six incidents involved CVPIs.7

 But even if we 

accept the suggestion that all six incidents involved CVPIs that caught fire as a 

result of sender-unit failures caused by rear-end collisions, that evidence is devoid 

of a sufficient context from which a jury could determine whether Ford acted 

unreasonably by failing to warn consumers of the risk of fire from sender-unit 

failures in CVPIs, because we do not know the circumstances that gave rise to the 

sender-unit failure in the six cases on which the Linerts rely. 

{¶ 37} More importantly, the Linerts have not sufficiently addressed the 

likelihood element of R.C. 2307.76(A)(2), by placing those six incidents in context 

of the number of CVPIs that were in use at the time. For example, the jury had 

 

6 Whether the risk of harm is sufficiently great to justify the burden of providing a warning is an 

essential aspect of proving a postmarket-failure-to-warn case. See Lovick v. Wil-Rich, 588 N.W.2d 

688, 694 (Iowa 1999), citing Restatement of the Law 3d, Torts, Products Liability, Section 10 

(1997). We recognize that other courts have held that evidence of the reasonableness of giving a 

postsale duty to warn, or failing to do so, may include the consideration of the number of instances 

reported, the number of consumers affected and the feasibility of identifying and effectively 

communicating the warning to those consumers, the economic burden imposed on a manufacturer 

if the manufacturer must identify and contact current users of the product, the effectiveness of any 

such warning, the type of product involved and number of units of the product that were 

manufacturer or sold, and the steps, other than giving notice of the defect, to correct the problem. 

Lewis v. Ariens Co., 434 Mass. 643, 649, 751 N.E.2d 862 (2001); Patton, 253 Kan. at 761-763, 861 

P.2d 1299; Cover, 61 N.Y.2d at 276-277, 473 N.Y.S.2d 378, 461 N.E.2d 864; Lovick at 697. In 

light of the evidence in this case, or lack thereof, we need not consider those factors here. 7

 The Linerts’ counsel relies on Arndt’s trial exhibit, which summarizes his database of what he 

believes to be similar incidents and which the appellate court cited in its opinion. See 2014-Ohio4431, 20 N.E.3d 1047, at ¶ 74. Other than Ross’s incident, the exhibit suggests that no more than 

six incidents involving CVPIs occurred after Ross’s CVPI was manufactured. More notably, the 

exhibit does not describe the nature or circumstances of the incidents. 
January Term, 2016 

15 

heard evidence that the factory that produced the fuel tank in the CVPI at issue in 

this case produced more than 2,000,000 fuel tanks between 1998 and 2005. But 

the jury did not know how many CVPIs with those tanks were still in use when the 

other incidents took place. And although the jury was presented with an exhibit that 

indicated that in 2005 there were 250,000 CVPIs on the road, we are not aware of 

evidence that informed the jury how many CVPIs were in use at the time of Ross’s 

accident. 

{¶ 38} In other words, the Linerts arguably established that there was a risk 

of fire erupting from sender-unit dislodgements when a CVPI was struck from 

behind in a high-speed accident, but they did not provide sufficient evidence from 

which the jury could consider the likelihood of the risk. Thus, the trial court 

properly refused to instruct on a postmarketing duty to warn in this case because 

the jury would not have had an adequate basis to find that that duty had been 

breached. Jablonski v. Ford Motor Co., 2011 IL 110096, 955 N.E.2d 1138, ¶ 119. 

Accord Flaugher v. Cone Automatic Machine Co., 30 Ohio St.3d 60, 67, 507 

N.E.2d 331 (1987). At best, the jury would have been left to speculate, or to fling 

a “ ‘plank of hypothesis’ ” over “ ‘an abyss of uncertainty,’ ” Gradus v. Hanson 

Aviation, Inc., 158 Cal.App.3d 1038, 1056, 205 Cal.Rptr. 211 (1984), quoting Edith 

Wharton, The Descent of Man, Scribner’s (Mar.1904), 321, to conclude that the 

risk was sufficient to give rise to any duty on Ford to provide a postmarket warning 

to consumers. “But speculative risk does not equal known risk.” Mitchell v. 

Warren, 803 F.3d 223, 230 (6th Cir.2015). 

CONCLUSION 

{¶ 39} We reverse the judgment of the court of appeals, and we remand this 

cause to the trial court to reinstate its judgment in favor of appellant, Ford Motor 

Company. 

Judgment reversed 

and cause remanded. 
SUPREME COURT OF OHIO

16 

O’DONNELL, LANZINGER, KENNEDY, and FRENCH, JJ., concur. 

PFEIFER, J., dissents and would affirm the judgment of the court of appeals. 

O’NEILL, J., dissents, with an opinion. 

_________________ 

O’NEILL, J., dissenting.

{¶ 40} Respectfully, I dissent. 

{¶ 41} The law resolving this case is clear, and I would dismiss the matter 

as having been improvidently accepted. A trial court is “obligated to provide jury 

instructions that correctly and completely state the law” when those instructions are 

“warranted by the evidence presented in a case.” Cromer v. Children’s Hosp. Med. 

Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, 29 N.E.3d 921, ¶ 22. While we 

afford trial courts “broad discretion to decide how to fashion jury instructions,” we 

still require courts to “ ‘give the jury all instructions which are relevant and 

necessary for the jury to weigh the evidence and discharge its duty as the fact 

finder.’ ” State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 46, 

quoting State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two 

of the syllabus. 

{¶ 42} These rules of course presume that juries are the fact-finders. That 

is not the approach taken by the majority. The majority accepts only those facts 

found in the record that lead to a verdict in favor of the Ford Motor Company. 

{¶ 43} The record, which the majority says contains a “paucity of 

evidence,” actually demonstrates that there were 34 similar collisions causing burns 

or death of vehicle occupants. In six of these collisions, the fuel-sending unit 

detached as it did in Officer Linert’s accident. Those facts, standing alone, trigger 

the duty to warn after the sale. After this police car was sold and delivered, Ford 

had a plethora of information, but users did not. There was uncontroverted 

evidence of six nearly identical accidents. 
January Term, 2016 

17 

{¶ 44} Absent any additional evidence of similar accidents, the Supreme 

Court of Ohio now ratifies the trial court’s decision to take this vital weighing 

process away from the jury. Juries may make inferences from the evidence 

presented to them. Hurt v. Charles J, Rogers Transp. Co., 164 Ohio St. 329, 130 

N.E.2d 820 (1955), paragraph three of the syllabus. In this case, the jury heard that 

there had been roughly a quarter-million Crown Victoria Police Interceptors 

(“CVPIs”) on the road in the year Ross Linert’s CVPI was manufactured. The jury 

heard that before Linert’s injury, 34 similar rear-impact collisions involving similar 

vehicles had resulted in burn injuries or deaths. The jury heard that these accidents 

occurred across many model years of the Panther-platform class of vehicles but that 

the placement and design of the fuel tanks remained the same within this class from 

1979 until 2005. The jury heard that in six of these incidents, the fuel-sender unit 

dislodged, as it did in Linert’s accident. The jury also heard that just after delivery 

and before Linert’s accident, Ford spent several months on a project to strengthen 

the joint attaching the fuel sender to the fuel tank. This attempt to correct a known 

defect came after hearing about how the fuel system had performed in actual car 

accidents. This evidence is clearly enough to infer, one way or the other, about the 

likelihood of a risk inherent in the design of the CVPI fuel tank. That evidence 

triggers the jury’s inquiry whether the Ford Motor Company made a reasonable 

decision not to warn the consumers who had already bought their products. How 

could we hold otherwise? 

{¶ 45} Remarkably, the majority also holds without citation to any authority 

from this court that information presented to the jury about Ford’s presale 

knowledge and conduct regarding design of fire-suppression and fuel-tankprotection systems was not relevant to the plaintiffs’ postsale-failure-to-warn 

claims and can be relevant only to presale claims. I could not disagree with the 

majority more vehemently about the relevance of this evidence, given the plain 

language of the statutes creating the two causes of action. Compare R.C. 
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18 

2307.76(A)(1)(a) with 2307.76(A)(2)(a) (identical language regarding knowledge 

of a risk in both provisions). But relying on mere logic about what could be relevant 

to which claim and why, the majority has decided a better meaning for R.C. 

2307.76(A)(2)(a)—or at least a meaning better liked. R.C. 2307.76(A)(2) requires 

knowledge of a risk associated with a product “at a relevant time after it left the 

control of its manufacturer.” I disagree with the majority’s view of R.C. 

2307.76(A)(2)(a) because agreeing would require me to countenance the judicial 

fiction that after selling these cars, Ford somehow “un-knew” whatever it knew 

before the sale. 

{¶ 46} What Ford did or did not do regarding the CVPI fuel tank before the 

sale of Linert’s cruiser is important background evidence that would give a jury 

some context about the Ford Motor Company’s developing understanding of the 

risks regarding its design before the sale, after the vehicle was delivered, and just 

before the fiery crash that injured Officer Linert. I do not attribute bad faith to Ford. 

Surely its actions indicate that it was commendably trying, in the interest of 

customer safety, to solve a known problem. It was entirely logical for the jury to 

have inferred from the evidence in this matter that Ford knew the risks inherent in 

its fuel-tank and fuel-sender-connection design before sale. It is entirely possible 

that the jury believed that the seriousness of harm did not become apparent enough 

to create a duty to warn until sometime after that sale and before Linert’s accident. 

And that is why the jury should have been instructed on the postmarket duty to 

warn. In the absence of such an instruction, the jury verdict in this case reflected 

blind obeisance to the trial court’s limited instruction and was rendered predictably 

in favor of Ford. 

{¶ 47} The plaintiffs may not have presented enough evidence to convince

the jury that Ford had a duty to warn after sale. I take no position on that. But we 

will never know what a properly charged jury would have done because the 

plaintiffs’ evidence was not sufficient to convince this court to order the trial court 
January Term, 2016 

19 

to explain the statutorily mandated postmarket duty to warn. Ultimately, citizens 

decide whether a manufacturer made a reasonable or an unreasonable postmarket 

decision about how risky a design might be. They weigh that solemn decision in 

light of the likelihood of harm and the seriousness of that harm as demonstrated by 

the evidence before them. 

{¶ 48} We, as justices of a court of law, should not be fact-finders here. The 

applicable legal standard is to “give the jury all instructions which are relevant and 

necessary for the jury to weigh the evidence and discharge its duty as the fact 

finder.” White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 46. The 

appellate court clearly applied this standard below: “[A]ppellants presented 

evidence on their post-marketing failure to warn claim.” 2014-Ohio-4431, 20 

N.E.3d 1047, ¶ 26. “This was adequate evidence to put appellants’ post-marketing 

failure to warn claim before the jury.” Id. at ¶ 29. Seeing that the law was properly 

applied below, and seeing that the majority merely disagrees with the court of 

appeals regarding the facts that may be found in the record, I would dismiss the 

case as having been improvidently accepted. 

{¶ 49} Respectfully, I dissent. 

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SL Chapman, L.L.C., Robert W. Schmieder II, and Robert J. Evola; and 

Green Haines Sgambati Co., L.P.A., and Richard A. Abrams, for appellees. 

 Thompson Hine, L.L.P., Elizabeth B. Wright, and Conor A. McLaughlin; 

and Squire Patton Boggs, L.L.P., Pierre H. Bergeron, and Larisa M. Vaysman, for 

appellant. 

 Tucker Ellis, L.L.P., John P. Palumbo, and Benjamin C. Sasse ́

, urging 

reversal for amicus curiae Product Liability Advisory Council, Inc. 

 Jones Day, Yvette McGee Brown, Chad A. Readler, and Kenneth M. Grose, 

urging reversal for amici curiae Chamber of Commerce of the United States of 

America, National Association of Manufacturers, National Federation of 
SUPREME COURT OF OHIO

20 

Independent Small Business Legal Center, Ohio Chamber of Commerce, and Ohio 

Manufacturers’ Association. 

Rourke & Blumenthal, L.L.P., Johnathan R. Stoudt, and Robert P. Miller, 

urging affirmance for amicus curiae Ohio Association for Justice. 

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