Opinion
Nos. 81-1574 and 81-1771
Decided August 11, 1982.
Negligence — Comparative negligence statute — R.C. 2315.19 — Prospective application only.
APPEAL from and CERTIFIED by the Court of Appeals for Medina County.
On the evening of August 22, 1978, Kenneth Straub and Robert Voss visited a mutual friend to listen to a band rehearse. At the conclusion of the rehearsal, the viewers mingled and began to leave. At this time, Straub sat on the hood of Voss' car. Voss ordered Straub off the hood. Straub got off the hood and sat on the trunk of Voss' car. At this point, the engine of Voss' car was started. Voss once again ordered Straub off his car. When Straub refused, Voss drove away, swerving the car from side to side. Straub fell off the car and suffered serious head injuries.
Chester Straub, Kenneth's father, initiated this action on behalf of his son and himself for the injuries Kenneth suffered in the fall. Voss raised the affirmative defense of contributory negligence and assumption of the risk. The case went to trial before a jury on September 16, 1980 in the Court of Common Pleas of Medina County.
As part of its charge to the jury, the trial court included instructions on contributory negligence and assumption of the risk to which Straub objected. Additionally, the court refused to give Straub a requested instruction on comparative negligence. The jury returned a verdict for Voss.
Straub appealed to the Court of Appeals for Medina County. Before that court Straub argued that the comparative negligence statute, R.C. 2315.19, is remedial and should be applied to cases tried after June 20, 1980, its effective date. Consequently, Straub argued that the trial court should have charged the jury on comparative rather than contributory negligence.
The Court of Appeals agreed with Straub that R.C. 2315.19 was applicable to this case and that the jury should have been instructed on comparative rather than contributory negligence. However, the court ruled that assumption of the risk continues to exist and is not merged into comparative negligence. Also, the court held that assumption of the risk presented a proper question for the jury. Accordingly, the Court of Appeals affirmed the judgment of the trial court.
This cause is now before the court pursuant to the allowance of a motion to certify the record in case No. 81-1574, and pursuant to the certification of conflict by the Court of Appeals in case No. 81-1771.
Mr. Don C. Iler and Mr. Stephen J. Brown, for Straub et al.
Buckingham, Doolittle Burroughs Co., L.P.A., Mr. Orville L. Reed, III, and Mr. Seth A. Jacobs, for Voss.
This cause raises two distinct issues. Case No. 81-1574 presents the question of whether the affirmative defense of implied assumption of the risk is merged into comparative negligence. Case No. 81-1771 was certified by the Court of Appeals to resolve a conflict with unreported cases in the Sixth, Eighth and Tenth Appellate Districts over the applicability of R.C. 2315.19 to causes accruing before its effective date, but tried subsequently. Because of our resolution to the second question, we consider only it.
In Viers v. Dunlap (1982), 1 Ohio St.3d 173, we were faced with precisely the same issue. There we held that R.C. 2315.19 does not apply to causes arising prior to its effective date. We stated in the syllabus:
"R.C. 2315.19 affects substantive rights and applies prospectively to causes of action arising after June 20, 1980, the effective date of the statute."
As Straub's cause of action arose nearly two years prior to June 20, 1980, R.C. 2315.19 does not apply. Since comparative negligence is inapplicable, we have no occasion to decide the other important issue presented: is implied assumption of the risk merged into comparative negligence. Due to the present posture of this cause, this question is not ripe, so its resolution must await another day and cause.
Based on the foregoing, the judgment of the Court of Appeals is affirmed, although we reach the result by a different route than did the Court of Appeals.
Judgment affirmed.
W. BROWN, LOCHER, HOLMES and KRUPANSKY, JJ., concur.
CELEBREZZE, C.J., SWEENEY and C. BROWN, JJ., dissent.
The instant appeal raises two issues. The first, and only one reached by the majority, is whether R.C. 2315.19, which establishes the principle of comparative negligence in Ohio, should apply to actions arising before, but tried after the effective date of that statute. The second issue, which the majority does not reach, is whether the adoption of the comparative negligence statute abrogated the defense of implied assumption of risk.
In Viers v. Dunlap (1982), 1 Ohio St.3d 173, dissenting opinion at 179, I concluded that the comparative negligence statute properly applies to cases such as this, tried after the effective date of R.C. 2315.19. Accordingly, I dissent from the majority holding that the principle of comparative negligence does not apply to the parties in this case.
Although declining to do so in this case, this court has previously recognized the need to reevaluate application of the defense of assumption of risk in light of the adoption of the comparative negligence statute. Benjamin v. Deffett Rentals (1981), 66 Ohio St.2d 86 [20 O.O.3d 7,] at 90 fn. 5. My analysis of the overlap between implied assumption of risk and contributory negligence convinces me that R.C. 2315.19 did abrogate the defense of implied assumption of risk, thereby permitting partial recovery even when assumption of risk is implied. This position accords with the large and growing number of enlightened jurisdictions which have judicially merged assumption of risk into the framework of negligence and contributory negligence following enactment of comparative negligence statutes by the respective state legislatures. See Farley v. M.M. Cattle Co. (Tex. 1975), 529 S.W.2d 751; Springrose v. Willmore (1971), 292 Minn. 23, 192 N.W.2d 826; Gilson v. Drees Brothers (1963) 19 Wis.2d 252, 120 N.W.2d 63; Brittain v. Booth (Wyo. 1979), 601 P.2d 532; Kopischke v. First Continental Corp. (Mont. 1980), 610 P.2d 668; Lyons v. Redding Constr. Co. (1973), 83 Wn.2d 86, 515 P.2d 821; Wilson v. Gordon (Me. 1976), 354 A.2d 398.
Finding the jury instruction to be incomplete and therefore prejudicial because it failed to consider the possibility of partial recovery, I would reverse the lower courts and remand the cause for a new trial.
CELEBREZZE, C.J., and SWEENEY, J., concur in the foregoing dissenting opinion.