Anderson v. Ceccardi

• Citation: 6 Ohio St.3d 110,451 N.E.2d 780,6 OBR 170
• Decision Date: 03 August 1983
• Docket Number: No. 82-1268,82-1268
• Parties: , 6 O.B.R. 170 ANDERSON, Appellee and Cross-Appellant, v. CECCARDI, Appellant and Cross-Appellee.
• Court: United States State Supreme Court of Ohio

Page 110

6 Ohio St.3d 110

451 N.E.2d 780, 6 O.B.R. 170

ANDERSON, Appellee and Cross-Appellant, v. CECCARDI, Appellant and Cross-Appellee.

No. 82-1268.

Supreme Court of Ohio.

Aug. 3, 1983.

Syllabus by the Court

1. The defense of assumption of risk is merged with the defense of contributory negligence under R.C. 2315.19.

2. In an action for personal injuries to a tenant proximately caused by a violation of a landlord's statutory duty under R.C. 5321.04, the landlord is negligent per se. (Shroades v. Rental Homes, 68 Ohio St.2d 20, 427 N.E.2d 774 , followed.)

Plaintiff William J. Anderson, appellee and cross-appellant, and his family, rented a home in Toledo, Ohio from defendant Cary M. Ceccardi, appellant and cross-appellee.

Anderson testified at deposition that he had repeatedly told his landlord Ceccardi that the front steps to the home were in an unsafe condition and were in need of repair. Apparently, a hole had developed in the tread portion of the concrete steps, and Anderson placed a board over the hole, presumably to make the steps safer. Although the front steps to the home were unsafe, appellee still had a back and side entrance to the home which were in a safe condition.

On September 7, 1980, Anderson was using the front steps when the stringer or outside portion of the steps collapsed, causing appellee to fall and sustain substantial bodily injury.

In January 1981, Anderson filed an action in the Court of Common Pleas of Lucas County for the injuries he incurred in the fall. Appellee based his action in negligence, relying on the allegation that Ceccardi breached his statutory duty as a landlord under R.C. 5321.04, for failing to repair the front steps of which Anderson complained about beforehand. Ceccardi has denied that Anderson ever notified him about the defective steps.

Pursuant to Civ.R. 56, appellant Ceccardi filed a motion for summary judgment. Upon consideration of plaintiff's deposition, defendant's affidavit and the pleadings relative thereto, the trial court granted summary judgment in favor of the defendant-appellant. The court held that the defense of assumption of risk stands as an absolute bar to appellee's claims, as a matter of law, and that reasonable minds could only conclude that appellee voluntarily assumed the risk by traversing the steps in question.

Upon appeal, the grant of summary judgment was reversed. The appellate court held that the landlord's defense of assumption of risk does not bar plaintiff's recovery, and that there exists a factual question for jury determination with respect to the cause of the injury, and whether it was reasonably foreseeable by the landlord that the tenant would use the steps. The court of appeals further determined that the defenses of contributory negligence and assumption of risk do not merge under the recently enacted comparative negligence statute, R.C. 2315.19.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Gallon, Kalniz & Iorio Co., L.P.A., and David Zoll, Toledo, for appellee and cross-appellant.

Manahan, Pietrykowski & Bamman and Stephen F. Ahern, Toledo, for appellant and cross-appellee.

SWEENEY, Justice.

I

On cross-appeal, Anderson argues that the doctrine of implied assumption of risk should be merged with contributory negligence for the purposes of apportionment of fault under R.C. 2315.19, the comparative negligence statute. ¹ It is the cross-appellant's contention that since the comparative negligence statute is silent with respect to assumption of risk, and that since implied assumption of risk is indistinguishable from contributory negligence, the doctrine of assumption of risk should be recognized as a phase of contributory negligence under R.C. 2315.19.

In response, cross-appellee Ceccardi contends that Ohio has always distinguished the doctrine of assumption of risk from contributory negligence. Furthermore, the cross-appellee asserts that the defense of assumption of risk remains as a total bar to recovery in an action in negligence despite the enactment of the Ohio comparative negligence statute.

In prior cases, this court has described the defense of assumption of risk as follows: " ' * * * (1) consent or acquiescence in (2) an appreciated or known (3) risk * * *. The practicalities of proof require that the defense of assumption of the risk also be applicable where the risk is so obvious that plaintiff must have known and appreciated it.' " Benjamin v. Deffet Rentals (1981), 66 Ohio St.2d 86, 89, 419 N.E.2d 883 ; Wever v. Hicks (1967), 11 Ohio St.2d 230, 234, 228 N.E.2d 315 . See, also, Briere v. Lathrop Co. (1970), 22 Ohio St.2d 166, 258 N.E.2d 597 .

Until today, Ohio law has consistently recognized a distinction between assumption of risk and contributory negligence. See, e.g., Masters v. New York Central RR. Co. (1947), 147 Ohio St. 293, 70 N.E.2d 898 ; Porter v. Toledo Terminal RR. Co. (1950), 152 Ohio St. 463, 90 N.E.2d 142 ; Morris v. Cleveland Hockey Club (1952), 157 Ohio St. 225, 105 N.E.2d 419 ; Centrello v. Basky (1955), 164 Ohio St. 41, 128 N.E.2d 80 ; Wever, supra; DeAmiches v. Popczun (1973), 35 Ohio St.2d 180, 299 N.E.2d 265 ; Benjamin, supra. In Wever, this court specifically rejected an argument "that the defense of assumption of the risk is not conceptually different from the defense of contributory negligence." Id. 11 Ohio St.2d at 232, 228 N.E.2d 315.

Although this court distinguished the defenses of assumption of risk and contributory negligence, it was also recognized in the above cases that in many instances the doctrines overlap and that both defenses may exist under the same facts. As first stated in Masters v. New York Central RR. Co., supra, 147 Ohio St. at 301, 70 N.E.2d 898:

"Incidentally, 'there are situations where the defenses of assumption of risk and contributory negligence will overlap. The plaintiff's conduct in accepting the risk may itself be unreasonable, because the danger is out of all proportion to the interest which he is seeking to advance * * *. In all such cases, both defenses are available to the defendant. * * * In working out the distinction, the courts have arrived at the conclusion that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, and that to the extent that this can be found recovery will be denied; while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be. * * * The two may coexist, or either may exist without the other. * * * ' " (Citations omitted.)

Under the prior cases, the overlap in these doctrines posed no problems because in practice it did not matter whether the plaintiff's conduct was denominated as assumption of risk or contributory negligence, since both stood as absolute bars to a plaintiff's recovery. However, now, under R.C. 2315.19, if a plaintiff's conduct constitutes both contributory negligence and assumption of risk, continued adherence to the differentiation of the doctrines can lead to the anomalous situation where a defendant can circumvent the comparative negligence statute entirely by asserting the assumption of risk defense alone. We do not believe that the General Assembly intended such a result in its enactment of R.C. 2315.19, and for this reason, we must revise our prior pronouncements on the doctrine of assumption of risk in view of this statute.

This court has recognized the need to reevaluate the application of the defense of assumption of risk in light of the comparative negligence statute, see Benjamin, supra, 66 Ohio St.2d at page 90, footnote 5, 419 N.E.2d 883; however, considerations of ripeness, among other things, prevented us from reaching the issue at that time. Now, with the issue squarely in front of us, we hold that the defense of assumption of risk is merged with the defense of contributory negligence under R.C. 2315.19. The conduct previously considered as assumption of risk by the plaintiff shall be considered by the trier of the fact under the phrase "contributory negligence of the person bringing the action" under R.C. 2315.19, and the negligence of all parties shall be apportioned by the court or jury pursuant to that statute.

Our holding in this respect is in accord with the well-reasoned approach in other jurisdictions which have merged assumption of risk and contributory negligence after adoption of a comparative negligence statute which was silent on the defense of assumption of risk. See McConville v. State Farm Mut. Auto. Ins. Co. (1962), 15 Wis.2d 374, 113 N.W.2d 14; Colson v. Rule (1962), 15 Wis.2d 387, 113 N.W.2d 21; Gilson v. Drees Bros. (1963), 19 Wis.2d 252, 120 N.W.2d 63; Springrose v. Willmore (1971), 292 Minn. 23, 192 N.W.2d 826; Lyons v. Redding Construction Co. (1973), 83 Wash.2d 86, 515 P.2d 821; Farley v. M M Cattle Co. (Tex.1975), 529 S.W.2d 751; Wilson v. Gordon (Me.1976), 354 A.2d 398; Wentz v. Deseth (N.D.1974), 221 N.W.2d 101; Brittain v. Booth (Wyo.1979), 601 P.2d 532; Sunday v. Stratton Corp. (1978), 136 Vt. 293, 390 A.2d 398; Green v. Sherburne Corp. (1979), 137 Vt. 310, 403 A.2d 278; Kopischke v. First Continental Corp. (Mont.1980), 610 P.2d 668.

In addition, two jurisdictions which judicially adopted comparative negligence, also judicially merged assumption of the risk with contributory negligence. Li v. Yellow Cab Co. (1975), 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226; Blackburn v. Dorta (Fla.1977), 348 So.2d 287.

The foregoing merger of assumption of risk with contributory negligence is not intended to merge that category of assumption of risk known as "express" assumption of risk. Express assumption of risk would arise where a person expressly contracts with another not to sue for any future injuries which may be caused by that person's negligence. This view is in accord with the decisions of other jurisdictions which have merged assumption of...