Cremeans v. Willmar Henderson Manufacturing Co.

The first issue *147presented by this appeal is whether the defense of assumption of risk bars Cremeans from recovery on his products liability claim against Willmar based upon strict liability in tort. Cremeans will be barred from recovery on his claim if he voluntarily and unreasonably assumed a known risk posed by the defective1 product manufactured by Willmar. Onderko v. Richmond Mfg. Co. (1987), 31 Ohio St. 3d 296, 31 OBR 576, 511 N.E. 2d 388, syllabus.

The defense of assumption of risk is a product of laissez-faire economics and evolved in master and servant cases. See Williamson v. Smith (1971), 83 N.M. 336, 338, 491 P. 2d 1147, 1149. The doctrine was judicially developed in response to the great impulse of the common-law courts “* * * to insulate the employer as much as possible from bearing the ‘human overhead’ which is an inevitable part of the cost — to someone — of the doing of industrialized business. The general purpose behind this development in the common law seems to have been to give maximum freedom to expanding industry.” (Footnotes omitted.) Tiller v. Atlantic Coast Line RR. Co. (1943), 318 U.S. 54, 59.

At common law, an employer’s liability was shielded by defenses such as assumption of risk based upon an economic theory that there was complete mobility of labor, and that the supply of work was unlimited. Prosser & Keeton, Law of Torts (5 Ed. 1984) 568-569, Section 80. Therefore, a worker was viewed as an entirely free agent not compelled to enter into a particular employment relationship. Id. at 568. Thus, a person who entered into an employment relationship was deemed to accept all the usual and known risks of the chosen trade, thereby relieving the employer of any duty to protect the employee from the dangers of employment. Id.

In more recent years, the doctrine of assumption of risk has been sharply criticized in its application to claims based upon injuries sustained in the workplace. In Siragusa v. Swedish Hospital (1962), 60 Wash. 2d 310, 373 P. 2d 767, the Supreme Court of Washington made the following observation in abolishing assumption of risk as a defense for an employer whose actions result in injury to an employee:

“The policy reasons which gave rise to the doctrine of assumption of risk in the master-servant area * * * no longer suffice to support the harsh effects upon injured employees who seek redress for their employer’s negligence. Public opinion, reflected in workmen’s compensation legislation, has dictated a change in the underlying concepts of employer’s [sic] responsibility. In almost all areas of industrial activity, social insurance has replaced the common law rules of liability and defenses which grew out of the judicial inclination to foster a growing economy. No longer can it be said that a judicially-imposed doctrine of assumption of risk is necessary or desirable to protect expanding industry from being crippled by employers’ responsibility for tortious conduct toward their employees.

“To bar recovery when the employee is acting reasonably in exposing himself to a known and appreciated risk is to indulge in the unrealistic and rigid presumption that, *148in so exposing himself, the employee ‘assents’ to relieve his employer from his responsibility to furnish a safe place in which to work. Such a presumption has no basis in experience, and is not founded upon any current social policy. The existence of such a notion has been soundly rejected by the courts which have carefully analyzed the matter.” Id. at 318, 373 P. 2d at 773.

In Williamson, supra, the Supreme Court of New Mexico abolished assumption of risk as a defense in that state and made the following observations with regard to the application of the defense to claims involving injuries sustained in the employment relationship:

“The reasonableness of insulating business from human overhead, however valid it may have been during the moment of the industrial revolution, now runs directly counter to current social policy, as typified by the underlying theory of modern workmen’s compensation legislation, both general and specifically in regard to the safety of work areas. * * * Widespread availability and use of liability and workmen’s compensation insurance by employers have now met the need in any case.

“Finally, in the employer-employee frame of reference, the concept of assumption of risk is one hundred eighty degrees out of phase with our legal policy of requiring the employer to provide his employees with a reasonably safe place to work.

“For either some or all of these reasons, there is a movement in this country either to restrict this defense or eliminate it completely. * * *” (Citations omitted.) Id. at 339, 491 P. 2d at 1150.

Dean Prosser has recognized that the limitation of an employer’s responsibility at common law was judicially created upon the basis of old industrial conditions, and a social philosophy and attitude toward labor which are “long since outmoded.” Prosser & Keeton, supra, at 568. According to Prosser, the view that an employee assents to relieve his employer of liability based upon the theory that an employee is completely free to forgo the employment entirely disregards “[t]he economic compulsion which left * * * [the employee] no choice except starvation * * *.” Id. See, also, Prosser & Keeton, supra, at 490-498, Section 68.

Many courts in recent years have moved away from the strict common-law application of the doctrine of assumption of risk in the employment context by realizing that an employee does not voluntarily or unreasonably assume the risks of employment simply by accepting employment or by performing required job duties. See, e.g., Johnson v. Clark Equip. Co. (1976), 274 Ore. 403, 414, 547 P. 2d 132, 140-141 (Working conditions and related circumstances have a strong influence on the decision to encounter a job-related danger. Fear of dismissal and the prospect of finding new employment could make a decision to encounter a known risk reasonable.); Suter v. San Angelo Foundry & Mach. Co. (1979), 81 N.J. 150, 167, 406 A. 2d 140, 148 (Employee has no meaningful choice but to encounter risks in his employment and, thus, cannot voluntarily assume the risk of injury.); Brown v. Quick Mix Co. (1969), 75 Wash. 2d 833, 836, 454 P. 2d 205, 208 (“It could never be said as a matter of law that a workman whose job requires him to expose himself to a danger, voluntarily and unreasonably encounters the same.”); Beacham v. Lee-Norse (C.A. 10, 1983), 714 F. 2d 1010, 1014-1015 (Worker did not voluntarily encounter a danger simply by perform*149ing his duties.); Rhoads v. Service Mach. Co. (E.D. Ark. 1971), 329 F. Supp. 367, 381 (“The ‘voluntariness’ with which a worker assigned to a dangerous machine in a factory ‘assumes the risk of injury’ from the machine is illusory.”); Kitchens v. Winter Co. Bldrs., Inc. (1982), 161 Ga. App. 701, 703, 289 S.E. 2d 807, 809 (“Any construction worker as a servant and employee has a certain amount of his freedom of choice restricted by the circumstances under which he works and . the coercion of seeking to remain employed.); and Scott v. Dreis & Krump Mfg. Co. (1975), 26 Ill. App. 3d 971, 990, 326 N.E. 2d 74, 87 (“In situations where the nature of plaintiff’s employment requires exposure to certain hazards, it would be a non sequitur of the policy considerations of strict tort liability to say that plaintiff has voluntarily and unreasonably assumed such hazards by the mere acceptance of his employment.”).

With the foregoing discussion in mind, we believe that the time has come for Ohio to realize that the days of laissez-faire economics are long gone, and that the industrial revolution is no longer with us. Today, an employee must either accept the dangers of his or her job or face the prospect of finding new employment in an economic setting where the supply of work has become increasingly limited. Ohio should now move into the Twentieth Century and join the ranks of the growing number of state and federal courts that have ruled on the question. The trend in this country set by the jurisdictions which have carefully analyzed the issue is that the defense of assumption of risk in the employment setting is no longer valid. See Comment, Employees’ Assumption of Risk: Real or Illusory Choice? (1984), 52 Tenn. L. Rev. 35. Accordingly, common sense dictates, and we so hold, that an employee does not voluntarily or unreasonably assume the risk of injury which occurs in the course of his or her employment when he or she must encounter that risk in the normal performance of his or her required job duties and responsibilities.2 We realize that our holding “abolishes” assumption of risk in the employment setting in the sense that the defense of assumption of risk is unavailable for certain claims arising from work-related injuries. To that extent, we are in complete agreementwith the conclusion of one commentator on this issue, and we can state it no better than she did in writing that:

“The decision to abolish assumption of risk in the employment setting is grounded in economic reality and a sense of humanity consistent with present social policy. Since assumption of risk is a judicial creation, the courts should take responsibility for removing the doctrine from areas in which it plays no useful or just function. The employment setting is one of these areas, and in the face of increasing numbers of work-related injuries, courts should eliminate the doctrine as an anachronism.” Comment, supra, at 65.

Furthermore, the abrogation of the defense of assumption of risk in the context of work-related injury claims is not a foreign concept in Ohio. In Pren-tiss v. Kirtz (1977), 54 Ohio App. 2d 56, 59, 8 O.O. 3d 59, 61, 374 N.E. 2d 429, 431, the court held that:

“Where a person, by reason of *150economic necessity, is compelled to work on a machine defectively designed which proximately causes him injury during such operation, his mere exposure to such dangerous place does not constitute contributory negligence or assumption of the risk on his part as a matter of law.”

The record in this case demonstrates that Cremeans encountered the risks associated with the use of the Willmar loader because he was required to do so in the normal performance of his job duties and responsibilities and that Cremeans was injured during the execution of such duties and responsibilities. Therefore, his assumption of the risk was neither voluntary nor unreasonable and, hence, applying Onderko, supra, Cre-means is not barred from recovery on his products liability claim based upon strict liability in tort. This is so regardless of the fact that it was Cre-means’s employer, and not Willmar, who required Cremeans to perform the particular job duty which resulted in the injury. Given the facts of this case, to wit, that Willmar knew that the loader it was selling to Sohio was not equipped with a necessary safety device and, in fact, demanded indemnity from Sohio before agreeing to make the sale, the issue is even clearer.

Willmar sold the loader to Cre-means’s employer without protective structures or a protective cage. The loader could not have been used by Cremeans in the performance of his job duties had the protective structures or cage been attached to the loader. Thus, Cremeans was put at risk either solely as a result of the product defect, or by the combination of the defect and the conduct of Cremeans’s employer, Sohio. In either event, the economic pressures associated with the reality of today’s workplace inevitably came to bear on Cremeans’s decision to encounter the risk. As such, we believe that it would be incongruous to conclude that the defense of assumption of risk should be available to Willmar and not to Cre-means’s employer when the decision to encounter the risk was equally involuntary regardless of who commissioned the employee to perform his or her job duty. Further, many of the cases and commentaries dealing with the issue of assumption of risk do not distinguish between employers and manufacturers with respect to the availability of the defense in the employment context. See, e.g., Johnson, supra; Suter, supra; Brown, supra; Scott, supra; Kitchens, supra; and Comment, supra; Note, Torts — Products Liability — The Open and Obvious Nature of a Design Defect Does Not Necessarily Preclude Manufacturer’s Liability (1971), 49 Tex. L. Rev. 591, 595; and Noel, Defective Products: Abnormal Use, Contributory Negligence, and Assumption of Risk (1972), 25 Van. L. Rev. 93,127 (“It would seem that when a manufacturer supplies a dangerous machine for use by employees, the workman injured because of the unsafe design is subject to comparable economic pressure and that his consent to use the dangerous machine, perhaps in order to retain his job, is likewise not free and voluntary.”).

Willmar suggests that Comment b to Section 496E of the Restatement of the Law 2d, Torts (1965), supports its position that Cremeans’s decision to encounter the risk associated with the use of the Willmar loader was voluntary.

We disagree. Section 496E provides:

“(1) A plaintiff does not assume a risk of harm unless he voluntarily accepts the risk.

“(2) The plaintiff’s acceptance of a risk is not voluntary if the *151defendant’s tortious conduct has left him no reasonable alternative course of conduct in order to

“(a) avert harm to himself or another, or

‘ ‘(b) exercise or protect a right or privilege of which the defendant has no right to deprive him.” Id. at 576.

Comment b to Section 496E provides in part:

“The plaintiff’s acceptance of the risk is to be regarded as voluntary even though he is acting under the compulsion of circumstances, not created by the tortious conduct of the defendant, which have left him no reasonable alternative. Where the defendant is under no independent duty to the plaintiff, and the plaintiff finds himself confronted by a choice of risks, or is driven by his own necessities to accept a danger, the situation is not to be charged against the defendant. * * *” (Emphasis added.) Id.

With regard to the first sentence in Comment b, we have determined that the compulsion of Cremeans’s circumstances was, to some degree, attributable to Willmar. Willmar provided Cremeans’s employer with a defective product which made it possible for Cremeans to encounter thé risk. With regard to the second sentence in Comment b, Willmar certainly had an independent duly to Cremeans not to place a dangerously defective product into the stream of commerce, thereby placing Cremeans at risk. Furthermore, in our judgment, Cremeans’s decision to encounter the risk posed by Willmar’s product was clearly “not voluntary” within the meaning of Section 496E(2).

The second issue presented by this appeal concerns the applicability of Ohio’s comparative negligence statute to Cremeans’s claim in negligence. (R.C. 2315.19.) Willmar contends that based upon the evidence in the record, reasonable minds could only conclude that the “* * * contributory negligence of * * * [Cremeans] in assuming the risk of his injury far exceeded the negligence, if any, of Willmar.”

In Anderson v. Ceccardi (1983), 6 Ohio St. 3d 110, 6 OBR 170, 451 N.E. 2d 780, paragraph one of the syllabus, we held that “[t]he defense of assumption of risk is merged with the defense of contributory negligence under R.C. 2315.19.”

Therefore, since the defense of assumption of risk is unavailable in the case at bar, so too is the defense with which it has been merged and, thus, R.C. 2315.19 is inapplicable to limit or bar Cremeans from recovery on his products liability claim based upon negligence.

Finally, Willmar raises the issue of proximate causation in its brief before this court suggesting that the proximate cause of Cremeans’s injury was Cremeans’s decision to encounter the risk and Sohio’s decision to use the product in the environment in which it was put to use. The trial court did not address the issue of proximate causation in granting Willmar’s motion for summary judgment, and the court of appeals did not address this issue in its opinion. Likewise, we will not address the issue but note, in passing, that the cause of Cremeans’s injury is a jury question.

The judgment of the court of appeals is affirmed and this cause is remanded for further proceedings consistent with this opinion.

Judgment affirmed and cause remanded.