Cremeans v. Willmar Henderson Manufacturing Co.

566 N.E.2d 1203, 57 Ohio St. 3d 145, 1991 Ohio LEXIS 244
CourtOhio Supreme Court
DecidedFebruary 6, 1991
DocketNo. 89-1797
StatusPublished
Cited by43 cases

This text of 566 N.E.2d 1203 (Cremeans v. Willmar Henderson Manufacturing Co.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cremeans v. Willmar Henderson Manufacturing Co., 566 N.E.2d 1203, 57 Ohio St. 3d 145, 1991 Ohio LEXIS 244 (Ohio 1991).

Opinions

Douglas, J.

The first issue [147]*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, [148]*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[149]*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.

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Cite This Page — Counsel Stack

Bluebook (online)
566 N.E.2d 1203, 57 Ohio St. 3d 145, 1991 Ohio LEXIS 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cremeans-v-willmar-henderson-manufacturing-co-ohio-1991.