Zigler v. Avco Corp.

{¶ 38} I respectfully dissent.

{¶ 39} The majority writes that there are questions of fact as to whether appellant had any knowledge and appreciation of the danger represented by the corn picker. I disagree. When the machine clogged for the second or third time that morning, appellant made a calculated decision not to turn off the power and grabbed the stalks of corn in an attempt to dislodge them. To suggest that appellant did not appreciate the risk inherent in working on such a powerful machine without turning it off is unrealistic. As to his knowledge of the risk, appellant demonstrated in his deposition testimony a familiarity with the workings of the corn picker. Appellant had used the machine before and had seen his father use it. In the words of the majority, if a clog does not clear by stopping the forward motion of the machine, the operator is instructed to stop the PTO and remove debris by hand.

{¶ 40} The majority opinion fails to acknowledge established Ohio case law regarding assumption of risk. Assumption of risk arises when a plaintiff has full knowledge of a condition, the condition is patently dangerous, and the plaintiff voluntarily exposes himself to the hazard created. Briere v. Lathrop Co. (1970), 22 Ohio St. 2d 166, 174-175, 51 O.O.2d 232,258 N.E.2d 597, citing Masters v. New York Cent. RR. Co. (1947),147 Ohio St. 293, 34 Ohio Op. 223, 70 N.E.2d 898. Underlying the doctrine of assumption of risk, and directly applicable to the case before this court, is the notion that "some known risks are so inherent in certain activities or situations that they cannot be eliminated." Brewster v. Fowler (Oct. 13, 2000), Trumbull App. No. 99-T-0091, 2000 WL 1566528, citing Ferguson v. CincinnatiGas Elec. Co. (1990), 68 Ohio App. 3d 460, 462,590 N.E.2d 1332. In primary assumption of risk situations, "the risk is not created by the defendant's negligence, but by the nature of the activity * * *." Ferguson, supra. Appellant's expert witness, a professional engineer, testified at deposition that the corn picker "is inherently dangerous by function." Corn-picking machines by definition will always be dangerous, and operators will always be warned to turn off the power source before attempting to remove a clog. Appellant demonstrated an understanding of the danger involved in working on the machine when he stated in his deposition that when he had attempted to unclog the corn picker previously he turned off the power first. When it became clogged again, appellant either ignored or accepted the risk involved in tampering with the machine while the power was still on. I would find that appellant knew of the dangerous condition presented by the corn picker, that the machine is inherently dangerous, and that appellant voluntarily exposed himself to an obvious and known danger when he attempted to unclog the machine without turning off the power source. Appellee herein was entitled to judgment as a matter of law.

{¶ 41} The majority further concludes that regardless of the trial court's determination as to primary causation of the injuries, a question of fact exists as to whether an enhanced-injuries claim could be sustained. This conclusion fails to acknowledge relevant Ohio case law. In Leichtamer v. Am.Motors Corp. (1981), 67 Ohio St. 2d 456, 21 O.O.3d 285,424 N.E.2d 568, the Ohio Supreme Court held that an enhancement-by-design-defect claim lies in strict liability in tort. Further, the court has held that voluntary and unreasonable assumption of a known risk posed by a product constitutes an absolute bar to recovery in a products-liability action based upon strict liability in tort. Kitchens v. McKay (1987),38 Ohio App. 3d 165, 169, 528 N.E.2d 603, citing Leichtamer, supra. Based on the foregoing, any argument that appellant's pull-in type injury might have been minimized if the manufacturer had installed an emergency stop mechanism is irrelevant. Having found that appellant assumed the risk of his injuries, there was no reason for the trial court to consider the enhanced-injuries claim, since recovery based on such a theory would be barred.

{¶ 42} Accordingly, I would deny both assignments of error and would affirm the judgment of the trial court.