[Cite as Sanders v. Frank, 2015-Ohio-3644.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
HEATHER SANDERS, et al., : OPINION
Plaintiff-Appellant, : CASE NO. 2014-T-0074 - vs - :
JOSEPH D. FRANK, :
Defendant-Appellee. :
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2012 CV 02689.
Judgment: Affirmed.
Michael A. Ognibene, 204 Monroe Street, Warren, OH 44483 (For Plaintiff-Appellant).
Robert F. Burkey, Burkey, Burkey & Scher Co., L.P.A., 200 Chestnut Avenue, N.E., Warren, OH 44483 (For Defendant-Appellee).
DIANE V. GRENDELL, J.
{¶1} Plaintiff-appellant, Heather Sanders, appeals the judgment of the Trumbull
County Court of Common Pleas in favor of defendant-appellee, Joseph D. Frank, and
dismissing the Complaint with prejudice. The issues before this court are whether the
doctrines of contributory negligence and/or assumption of the risk are applicable where
a defendant negligently violates a statutory duty to not allow animals to run at large;
whether the rescue doctrine precludes the application of assumption of the risk where a
plaintiff voluntarily assists in the capture of horses running at large; whether, under these circumstances, the trial court erred by applying the doctrine of assumption of the
risk; and whether, under these circumstances, the trial court’s conclusion that
contributory negligence and/or assumption of the risk prevented recovery by the plaintiff
is against the manifest weight of the evidence. For the following reasons, we affirm the
decision of the court below.
{¶2} On November 30, 2012, Heather and Shawn Sanders filed a Complaint
against Joseph Frank in the Trumbull County Court of Common Pleas. The Complaint
alleged that Frank “negligently allowed three horses owned or kept by him to run at
large upon the public road/highway and upon unenclosed land, creating a risk of harm
to the public,” and that Heather, “attempt[ing] to secure one of the horses * * *,
sustained personal injuries.”
{¶3} On March 27, 2014, the case (liability only) was tried before a magistrate.
{¶4} On May 9, 2014, a Magistrate’s Decision: Findings of Fact and
Conclusions of Law was issued. In relevant part, the magistrate found as follows:
On July 22, 2011, Heather Sanders sustained an injury while
attempting to rescue/restrain a horse named “Kush” that had
escaped from Joseph Frank’s fenced enclosure. Sanders
voluntarily offered her assistance to corral the animal as she had
done on other occasions when Frank’s horses escaped.
***
Initially, the Court finds Frank was in violation of R.C. 951.02 since
Kush was a horse who escaped an enclosure and ventured over
2 roads onto the property of another. This equates to “running at
large” as prohibited by the statute.
The court finds Sanders volunteered to assist in the rescue and
return of Kush to his enclosure. In addition, the Court finds
Sanders knowingly acted with full awareness of the dangers,
unpredictability and natural propensities of horses. Therefore, the
Court finds implied assumption of the risk applies to Sanders.
Although this is not a complete bar to recovery, the Court finds the
inherent risks borne without thought by Sanders outweigh the
negligence of Frank in allowing the horse to escape its enclosure.
The Court considered the totality of the circumstances. This was
not the first time Kush had escaped from the enclosure. Likewise,
this was not the first time Sanders had assisted in his return to the
barn. However, at the time of the rescue and corresponding injury,
the animal was not on the roadway presenting an imminent threat.
Rather, it had already crossed the road and found itself in a field on
the other side owned neither by Sanders or Frank. Sanders was
not acting to prevent any property damage to her own real estate.
The Court finds Sanders assisted with a genuine sincerity in
protecting the horse and others from any potential harm. However,
3 the Court finds Sanders was also well aware of the dangers
associated with corralling a horse under these circumstances.
Therefore, the Court finds Frank breached his duty of care in
allowing his horse to escape the enclosure. In addition, the Court
finds the injury of Sanders was a direct and proximate result of this
breach of duty. However, the Court must also find that under the
doctrine of implied assumption of the risk/contributory negligence,
Sanders was more than fifty-percent responsible for the injuries she
sustained as she was certainly aware of the risk in rescuing the
horse and proceeded in spite of those risks.
{¶5} On May 21, 2014, Sanders filed Objections to the Magistrate’s Decision,
to which Frank filed a Memorandum in Opposition on July 18, 2014.
{¶6} On August 14, 2014, the trial court issued a Judgment Entry, overruling
Sanders’ Objections and adopting the Magistrate’s Decision.
{¶7} On August 27, 2014, Sanders filed her Notice of Appeal. On appeal, she
raises the following assignments of error:
{¶8} “[1.] The trial court committed prejudicial error by applying comparative
negligence/assumption of the risk against plaintiff-appellant in favor of defendant-
appellee, contrary to R.C. 951.10(A), which provides that negligent horse owners are
responsible for all damages caused by their unconfined horses.”
4 {¶9} “[2.] The trial court committed prejudicial error in failing to apply the rescue
doctrine which would prevent assumption of the risk from barring plaintiff-appellant
Heather Sanders’ claim for injuries against the negligent horse owner.”
{¶10} “[3.] The trial court committed prejudicial error in finding that plaintiff-
appellant voluntarily assumed the risk when there was no other reasonable alternative
to alleviate risk of injury to the public.”
{¶11} “[4.] The trial court committed prejudicial error by ruling counter to the
manifest weight of the evidence, that plaintiff-appellant was more than fifty percent
responsible for injuries resulting from her successful efforts to capture defendant-
appellee’s loose horses.”
{¶12} In her first assignment of error, Sanders argues that application of
contributory negligence/assumption of the risk where liability is based on animals
allowed to “run at large” frustrates the legislative purpose of the statute. At the time of
her injury, “[t]he owner or keeper of an animal * * * who permits it to run at large * * *
[wa]s liable for all damages caused by such animal * * *.” Former R.C. 951.10.1
Sanders asserts that it was the legislature’s intent that violators be liable for “all
damages” without “exception for persons assisting to confine the animal.” Appellant’s
brief at 7. Sanders, in effect, argues that R.C. Chapter 951 is a strict liability statute.
{¶13} As a question of law, we review the issue de novo. State v. Pariag, 137
Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9 (the interpretation of statutes is a
question of law and, thus, reviewed de novo).
1. The statute has since been modified to read: “The owner or keeper of an animal * * * who negligently permits it to run at large * * * is liable for all damages resulting from injury, death, or loss to person or property caused by the animal * * *.” R.C. 951.10(A).
5 {¶14} Under a statute “interpreted as imposing strict liability,” that is “liability
without fault,” “the defendant will be deemed liable per se—that is, no defenses or
excuses * * * are applicable.” Sikora v. Wenzel, 88 Ohio St.3d 493, 495, 727 N.E.2d
1277 (2000). “Courts generally agree that violation of a statute will not preclude
defenses and excuses—i.e., strict liability—unless the statute clearly contemplates such
a result.” Id. at 496.
{¶15} There is no legal authority in Ohio for the proposition that R.C. Chapter
951 imposes strict liability on violators. The cases of which this court is aware hold
otherwise.
{¶16} The case of White v. Elias, 2012-Ohio-3814, 4 N.E.3d 391 (8th Dist.),
involved a substantially similar fact pattern. In that case, the defendant’s horses
escaped and were at large on the property of a third party. The plaintiff, “who was
familiar with the horses,” entered the property of the third party to assist in their capture
and was injured as a result thereof. Id. at ¶ 4-7.
{¶17} The court of appeals held that R.C. Chapter 951 did not impose strict
liability upon the owner or keeper of an animal that runs at large and injures a plaintiff
on private property owned by a third party. Id. at ¶ 16. “Neither the legislature nor the
Ohio Supreme Court has expressly made a violation of R.C. 951.02 one of strict liability
in cases of an animal’s presence on a third party’s private property.” Id. at ¶ 22.
{¶18} The court of appeals cited several cogent reasons to support its holding.
{¶19} The Ohio Supreme Court had previously interpreted R.C. 951.02 as
“creat[ing] a rebuttable presumption of negligence when an animal is at large and upon
a public thoroughfare.” Burnett v. Rice, 39 Ohio St.3d 44, 46, 529 N.E.2d 203 (1988).
6 The court noted that “the imposition of strict liability in the case sub judice would conflict
directly with the plain language of [former] R.C. 951.02 that ‘[t]he running at large of any
such animal * * * is prima-facie evidence that it is running at large in violation of this
section.’” Id.; Reed v. Molnar, 67 Ohio St.2d 76, 80, 423 N.E.2d 140 (1981) (“R.C.
951.02 * * * does not impose a requirement of an absolute and specific nature justifying
application of the doctrine of negligence per se”). The court of appeals in White held
that, “[a]lthough in this case the accident occurred on a third party’s private property, we
find the reasoning of the public thoroughfare cases persuasive.” White, 2012-Ohio-
3814, at ¶ 20.
{¶20} The court of appeals in White acknowledged that strict liability could
potentially apply in a case where liability was premised on trespass, rather than
negligence. As in the present case, however, “[t]he horse in [White] trespassed on [a
third party’s] property, not on land owned by the [plaintiff].” Id. at ¶ 24. Thus, liability in
both cases was premised on the defendants’ negligence. While Sanders, like the
plaintiff in White, “had permission to be on the * * * property, she was not the owner or
occupier of the land,” and “[t]herefore, she cannot recover on a theory of strict liability.”
Id.
{¶21} As there is no authority for the proposition that Frank is strictly liable for
damages resulting from his negligence, there is no impediment to the application of
contributory negligence and/or assumption of the risk.
{¶22} The first assignment of error is without merit.
7 {¶23} Under the second assignment of error, Sanders argues that the
application of the rescue doctrine precluded consideration of her comparative
negligence/assumption of the risk.
{¶24} With respect to the rescue doctrine, the Ohio Supreme Court has held that
“[i]t is not negligence per se for one to voluntarily risk his own safety or life in attempting
to rescue another from impending danger.” Pennsylvania Co. v. Langendorf, 48 Ohio
St. 316, 28 N.E. 172 (1891), paragraph one of the syllabus. “In an action to recover on
account of injuries sustained in an effort to save human life the conditions upon which
there may be a recovery are: That the person whose rescue is attempted must be in a
position of peril from the negligence of the defendant, and the rescue must not be
attempted under such circumstances, or in such a manner, as to constitute
recklessness.” Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Lynch, 69 Ohio St.
123, 68 N.E. 703 (1903), syllabus. The Langendorf and Lynch “cases establish the
doctrine that, while it is not negligence per se for one to voluntarily risk his own safety
and life in an effort to rescue another from impending danger, and that the question
whether a given course of conduct becomes contributory negligence is one of mixed law
and fact to be submitted to the jury, nevertheless, if one rashly and unnecessarily
exposes himself to danger, and a rescue is attempted under such circumstances, or in
such manner as to constitute recklessness, the presumption of contributory negligence
arises.” Buell v. New York Cent. Rd. Co., 114 Ohio St. 40, 50, 150 N.E. 422 (1926).
{¶25} Sanders maintains that her efforts to restrain Frank’s horses were
necessary to protect others from imminent harm. Sanders emphasizes that Frank’s
horses were going back and forth across the roadway and several witnesses testified
8 serious injury or death could result if a vehicle struck one of the horses. Sanders further
emphasizes that she was the person at the scene most qualified to restrain the horses
and that the police were unable to do so.
{¶26} The evidence before this court supports the lower court’s determination
that the rescue doctrine is inapplicable as there was no impending or imminent danger
to human life. The possibility of a motorist striking a horse is a real danger, but not
imminent. As noted by the magistrate, Kush was not on the roadway at the time of
Sanders’ injury. The possibility of collision was merely a possibility, not a present
danger. There was no testimony that any vehicle had passed by or almost struck one of
the horses. On the contrary, the likelihood of collision in the present case was lessened
by the presence of officers and a crowd of people at the scene, which would indicate to
any approaching motorist the need for caution. Ultimately, it was the officers’ duty, not
Sanders’, to restrain the horses. R.C. 951.11 (“[a] person finding an animal at large in
violation of section 951.02 of the Revised Code, may, and a law enforcement officer * *
* shall, take and confine that animal”).
{¶27} The second assignment of error is without merit.
{¶28} Under the third assignment of error, Sanders argues that she could not be
found to have voluntarily assumed the risk of injury since she was responding in a
reasonable manner to an emergency situation. Sanders cites the following from the
Restatement (Second) of Torts: “The plaintiff’s acceptance of risk is not voluntary if the
defendant’s tortious conduct has left him no reasonable alternative course of conduct in
order to * * * avert harm to himself or another.” Restatement of the Law 2d, Torts,
Section 496E(2)(a) (1965).
9 {¶29} Sanders’ argument fails for essentially the same reasons the rescue
doctrine was found inapplicable. The facts of the present case do not support the
conclusion that Sanders’ conduct was the only reasonable course of action to avert
harm to another. As noted above, there was no impending danger of harm to another,
only a potential danger, the risk of which was greatly mitigated by the facts that the
horse was not in a public roadway and that police officers were on the scene. Sanders’
decision to assist in restraining the horses was not compelled by an emergency
situation.
{¶30} The third assignment of error is without merit.
{¶31} In the fourth assignment of error, Sanders argues that the lower court’s
determination that she was more than fifty percent responsible for her injuries is against
the manifest weight of the evidence.
{¶32} “The contributory fault of a person does not bar the person as plaintiff from
recovering damages that have directly and proximately resulted from the tortious
conduct of one or more other persons, if the contributory fault of the plaintiff was not
greater than the combined tortious conduct of all other persons from whom the plaintiff
seeks recovery in this action and of all other persons from whom the plaintiff does not
seek recovery in this action.” R.C. 2315.33. “‘Contributory fault’ means contributory
negligence, other contributory tortious conduct, or, * * * express or implied assumption
of the risk.” R.C. 2307.011(B).
{¶33} When reviewing the weight of the evidence, the reviewing court “weighs
the evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost
10 its way and created such a manifest miscarriage of justice that the [judgment] must be
reversed and a new trial ordered.” (Citation omitted.) Eastley v. Volkman, 132 Ohio St.
3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. “In weighing the evidence, the court of
appeals must always be mindful of the presumption in favor of the finder of fact.” Id. at
¶ 21.
{¶34} Sanders’ position is that her degree of culpability “can only be judged by
the reasonableness of her decision to place herself at risk.” Appellant’s brief at 15. In
other words, the reasonableness of Sanders’ decision to assume the risk of injury must
be balanced against Frank’s negligent conduct in permitting his horses to run at large.
According to Sanders’ estimation of the parties’ conduct, “[t]he manifest weight of the
evidence does not support the trial court’s judgment that the civic minded, good
Samaritan’s culpability exceeds that of the serially negligent horse owner.” Appellant’s
brief at 16.
{¶35} Sanders is incorrect that the application of the contributory negligence
statute requires the weighing of the relative reasonableness of the parties’ conduct.
“Contributory fault” as used in the statute implicates the relative degree to which each
party’s conduct proximately caused the plaintiff’s injuries, rather than the comparative
reasonableness of their conduct.
{¶36} Sanders relies on the Ohio Supreme Court’s ruling that “the defense of
assumption of risk is merged with the defense of contributory negligence under R.C.
2315.19 [now R.C. 2315.33].” Anderson v. Ceccardi, 6 Ohio St.3d 110, 113, 451
N.E.2d 780 (1983). Sanders interprets this ruling to mean that the doctrine of
assumption of the risk only relieves a defendant of liability for his negligence to the
11 extent that the assumption of the risk constitutes contributory negligence, i.e., was
unreasonable. This is not a proper interpretation.
{¶37} The doctrines of implied or secondary assumption of the risk and
contributory negligence are distinct.
Where they have been distinguished, the traditional basis has been
that assumption of risk is a matter of knowledge of the danger and
intelligent acquiescence in it, while contributory negligence is a
matter of some fault or departure from the standard of conduct of
the reasonable man, however unaware, unwilling, or even
protesting the plaintiff may be. Obviously the two may coexist
when the plaintiff makes an unreasonable choice to incur the risk;
but either may exist without the other. The significant difference,
when there is one, is likely to be one between risks which were in
fact known to the plaintiff, and risks which he merely might have
discovered by the exercise of ordinary care.
(Citation omitted.) Wever v. Hicks, 11 Ohio St.2d 230, 233, 228 N.E.2d 315 (1967).
Under implied assumption of the risk, “defendant owes to plaintiff some duty, but it is
plaintiff’s acquiescence in or appreciation of a known risk that acts as a defense to
plaintiff’s action.” Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37, 518 N.E.2d
1226 (10th Dist.1987).
{¶38} Thus, implied assumption of the risk is based on the plaintiff’s knowledge
of a risk, while contributory negligence is based on the plaintiff’s breach of the duty of
care. This fundamental difference was not altered by the merger of the two defenses in
12 Anderson. Implied assumption of the risk remains a matter of the “plaintiff’s consent to
or acquiescence in an appreciated, known, or obvious risk to plaintiff’s safety.”
Trowbridge v. Franciscan Univ. of Steubenville, 7th Dist. Jefferson No. 12 JE 33, 2013-
Ohio-5770, ¶ 16; Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, 802 N.E.2d
1116, ¶ 11 (“secondary (or implied) assumption of the risk requires a showing that the
plaintiff has consented to or acquiesced in an appreciated or known risk”).
{¶39} What the Ohio Supreme Court did in Anderson was to merge the defenses
under the contributory negligence statute so that a plaintiff’s assumption of the risk as
well as contributory negligence could be considered in determining whether the
plaintiff’s fault in causing his or her injury exceeded that of the defendant (thus barring
recovery). In Anderson, the Supreme Court “found that implied assumption of risk could
limit a plaintiff’s recovery in the same way that contributory negligence limited recovery
under [the contributory negligence statute].” Gallagher v. Cleveland Browns Football
Co., 74 Ohio St.3d 427, 430, 659 N.E.2d 1232 (1996). When the General Assembly
amended the contributory negligence statute “to reflect the holding of Anderson that
implied assumption of risk and contributory negligence merge for purposes of that
statute,” it recognized that “contributory fault” could mean “contributory negligence * * *
or * * * implied assumption of the risk.” Id. at 430, fn. 2.
{¶40} Sanders’ argument is based on the distinction between reasonable and
unreasonable assumption of the risk. As noted by the Supreme Court in Wever, supra,
assumption of the risk coexists with or resembles contributory negligence when
unreasonable, but “either may exist without the other.” For purposes of determining the
13 parties’ relative fault, the distinction between a reasonable assumption of the risk and
an unreasonable assumption of the risk is of no legal importance.
{¶41} In fact, the Supreme Court in Anderson merged the doctrines to avoid the
incongruous result that could occur when the assumption of the risk was reasonable:
“[T]here 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 * * *.” * * * 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 [the contributory
negligence statute], 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 [the
contributory negligence statute], and for this reason, we must revise
our prior pronouncements on the doctrine of assumption of risk in
view of this statute.
14 (Internal citation omitted.) Anderson, 6 Ohio St.3d at 113, 451 N.E.2d 780.
{¶42} The Supreme Court in Anderson recognized that, unless assumption of
the risk and contributory negligence merged for purposes of the statute, assumption of
the risk remained a complete bar to recovery when reasonable but, when it was
unreasonable and overlapped with contributory negligence, merely limited a plaintiff’s
potential recovery. By merging the doctrines the Supreme Court rendered the practical
distinction between reasonable and unreasonable assumption of the risk, which
Sanders seeks to exploit, meaningless.
{¶43} Thus, Sanders’ assertions of the reasonableness of her conduct miss the
mark. The relevant inquiry is to what degree did her assumption of the risk proximately
cause her injuries. Knopp v. Dayton Machine Tool, Co., 7th Dist. Columbiana No. 03
CO 60, 2004-Ohio-6817, ¶ 19 (“resolution of the issue of proximate cause in this case
involves the doctrine of implied assumption of risk”); Bumgardner v. Wal-Mart Stores,
Inc., 2d Dist. Miami No. 2002-CA-11, 2002-Ohio-6856, ¶ 17 (“implied assumption of risk
is considered to be an issue of causation, not of duty”).2
{¶44} To this end, we note that on July 22, 2011, Sanders was at her father’s
house when she noticed “cop cars,” “people,” and “horses” up the road. She knew from
prior incidents that the horses belonged to Frank. On this occasion, the horses never
2. The concurring writer insists that the reasonableness of Sanders’ conduct “is what should be compared to the defendant’s conduct in order to determine recovery.” Infra at ¶ 59. The concurring writer does not explain in what way Sanders’ conduct was unreasonable. Rather, the concurring writer states that the “magistrate appears to have assessed * * * whether appellant’s conduct in attempting to assist with securing the horse at-large was reasonable.” Infra at ¶ 60. In fact, the magistrate finds no fault at all with Sanders’ conduct. Her decision is wholly based on the finding that “Sanders knowingly acted with full awareness of the dangers, unpredictability and natural propensities of horses,” not the relative reasonableness or unreasonableness of her conduct. The concurring writer misses the point that, while “‘contributory fault’ includes express assumption of the risk,” the doctrine of assumption of the risk remains distinct from that of contributory negligence. Note the use of the disjunctive in R.C. 2307.011(B): “‘Contributory fault’ means contributory negligence, other contributory tortious conduct, or, * * * express or implied assumption of the risk.” (Emphasis added).
15 entered her father’s property. She grabbed some lead ropes that were kept ready for
such occasions and walked up the road to assist the officers. Sanders testified that she
was experienced with riding, grooming, and rounding up horses and familiar with
Frank’s horses in particular. She had previously restrained the lead mare (Kush) and
returned her to Frank’s property. In light of this testimony, the magistrate’s conclusion
that “Sanders was more than fifty-percent responsible for the injuries she sustained as
she was certainly aware of the risk in rescuing the horse and proceeded in spite of
those risks” is not against the manifest weight of the evidence.
{¶45} The fourth assignment of error is without merit.
{¶46} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas, finding in favor of Frank on Sanders’ claims, is affirmed. Costs to be
taxed against the appellant.
TIMOTHY P. CANNON, P.J., concurs in judgment only with a Concurring Opinion,
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part with a Dissenting Opinion.
________________________________________
TIMOTHY P. CANNON, P.J., concurring in judgment only.
{¶47} I concur in judgment only. I agree with the holding and analysis with
regard to the first two assignments of error. I also agree with the holding with regard to
the third and fourth assignments of error, but I disagree with a portion of the analysis
addressing the doctrine of assumption of the risk.
16 {¶48} The main focus of the majority’s analysis is the Ohio Supreme Court case
of Anderson v. Ceccardi, 6 Ohio St.3d 110 (1983). When that case was decided, the
Supreme Court recognized the merger of the defense of implied assumption of the risk
with contributory negligence based on the provisions of then-existing R.C. 2315.19. I
believe, however, it is important to note that version of the statute was repealed in 2003.
It has been replaced by R.C. 2315.33 and R.C. 2307.011.
{¶49} R.C. 2315.33 now provides:
The contributory fault of a person does not bar the person as plaintiff from recovering damages that have directly and proximately resulted from the tortious conduct of one or more other persons, if the contributory fault of the plaintiff was not greater than the combined tortious conduct of all other persons from whom the plaintiff seeks recovery in this action and of all other persons from whom the plaintiff does not seek recovery in this action. The court shall diminish any compensatory damages recoverable by the plaintiff by an amount that is proportionately equal to the percentage of tortious conduct of the plaintiff as determined pursuant to section 2315.34 of the Revised Code.
{¶50} In addition, R.C. 2315.34 provides:
If contributory fault is asserted and established as an affirmative defense to a tort claim, the court in a nonjury action shall make findings of fact, and the jury in a jury action shall return a general verdict accompanied by answers to interrogatories, that shall specify the following:
(A) The total amount of the compensatory damages that would have been recoverable on that tort claim but for the tortious conduct of the plaintiff;
(B) The portion of the compensatory damages specified under division (A) of this section that represents economic loss;
(C) The portion of the compensatory damages specified under division (A) of this section that represents noneconomic loss;
17 (D) The percentage of tortious conduct attributable to all persons as determined pursuant to section 2307.23 of the Revised Code.
Finally, R.C. 2307.011 states: “(B) ‘Contributory fault’ means contributory negligence,
other contributory tortious conduct, or, except as provided with respect to product
liability claims in section 2307.711 of the Revised Code, express or implied assumption
of the risk.” (Emphasis added.) The inclusion of express assumption of the risk in this
definition affects much of the prior case law that addressed distinctions which are no
longer applicable. The statute does not provide for express assumption of the risk to
operate as a complete bar to recovery.
{¶51} Currently, the Ohio Jury Instructions (OJI) recognize and define three
types of assumption of the risk: (1) Express, as defined in OJI §403.09(1); (2) Implied,
as defined in OJI §403.09(2), and (3) Primary, as defined in OJI §403.09(3). In light of
R.C. 2307.011, which now directs that express assumption of the risk be included in the
determination of “contributory fault,” the comment at the beginning of OJI §403.09
appears misguided. It states: “The Committee believes that express assumption of risk
and primary assumption of risk are complete bars to recovery in any negligence action.”
This is in direct conflict with the definition of “contributory fault” found in R.C. 2307.011.
The interrogatories required by R.C. 2315.34 are set forth in OJI §403.01-07. The
commentary associated with those interrogatories also indicates that express
assumption of the risk is a bar to recovery.
{¶52} I believe there is confusion between some of the cases that continue to
follow and cite Anderson and the commentary to the jury instructions regarding express
assumption of the risk. The amendments to the statutory scheme effective in 2003
demonstrate the following: First, there is a pronouncement in R.C. 2315.33 that
18 “contributory fault of a person does not bar the person as plaintiff from recovering
damages * * *.” Also, the 2003 definition of “contributory fault” specifically includes
conduct that amounts to “express” assumption of the risk.
{¶53} In the 2005 amendment to this section, language was added that referred
to product liability claims. The provisions of R.C. 2307.711(B)(2) specify that in product
liability cases, both express and implied assumption of risk operate to bar recovery:
Subject to division (B)(3) of this section, if express or implied assumption of the risk is asserted as an affirmative defense to a product liability claim under sections 2307.71 to 2307.80 of the Revised Code and if it is determined that the claimant expressly or impliedly assumed a risk and that the express or implied assumption of the risk was a direct and proximate cause of harm for which the claimant seeks to recover damages, the express or implied assumption of the risk is a complete bar to the recovery of those damages.
{¶54} The Anderson Court merged the theories of comparative/contributory
negligence with implied assumption of the risk. However, it did note that express
assumption of the risk would still operate as a complete bar to recovery. This portion of
the decision has been superseded by operation of the new statute.
{¶55} With the foregoing in mind, one salient question stands out: whether the
definition of express assumption of the risk as set forth in the jury instructions also
defines express assumption of risk as used in R.C. 2307.011.
{¶56} The instruction for express assumption of the risk, as found in OJI
§403.09(1) states: “The defendant claims that the plaintiff expressly assumed the risk of
injury. The plaintiff expressly assumed the risk if he/she expressly agreed or contracted
with the defendant not to sue for any future injuries which might be caused by the
defendant’s negligence.” The instruction states that this definition is taken from
19 Anderson, which also stated that express assumption of the risk was a complete bar to
recovery. The statute, however, was amended after the decision in Anderson to include
express assumption of the risk as a part of the definition for “contributory fault” and
specifically does not bar recovery.
{¶57} The need for clarification here is apparent. If trial judges rely on the Ohio
Jury Instructions and tell juries that express assumption of the risk is a complete bar to
recovery, but the statute includes it for consideration in “contributory fault,” a jury could
be very misinformed. Whether the definition of express assumption of the risk as given
by the editors in OJI is what the legislature intended when that term was used in drafting
R.C. 2307.011 is certainly something that needs to be resolved.
{¶58} Additionally, I disagree with the majority opinion’s suggestion that the law
has distanced itself from the “reasonable man” standard in assessing relative fault. A
jury is told that negligence is the failure to use ordinary care. OJI §401.01(1). Ordinary
care is defined as “the care that a reasonably careful person would use under the same
or similar circumstances.” OJI §401.01(2). I believe appellant was properly arguing the
“reasonableness” of her conduct. The majority asserts that the Supreme Court has
“rendered the practical distinction between reasonable and unreasonable assumption of
the risk, which Sanders seeks to exploit, meaningless.” I disagree. I believe, in
assessing the relative “contributory fault” of the parties, whether the plaintiff acted
reasonably or unreasonably is relevant.
{¶59} If the trier of fact determined appellant’s conduct was unreasonable under
the circumstances, then such conduct would be factored into the jury’s determination of
the parties’ relative fault. The majority states the only question “is to what degree her
20 assumption of the risk proximately caused her injuries.” This, however, requires an
assessment of whether that risk was reasonable under the circumstances. The
confusion over this concept was addressed well by the Second District Court of Appeals
in Borchers v. Winzeler Excavating Co., 83 Ohio App.3d 268 (2d Dist.1992). There,
Judge Brogan suggested that the reasonableness of the assumption should be taken
into account: “In an almost Alice in Wonderland script, under implied assumption of risk,
plaintiffs who have acted reasonably in assuming a risk face a complete bar to recovery,
while plaintiffs who have acted unreasonably benefit from comparative-fault principles
and may recover substantial portions of their damages.” Id. at 274. As the majority
notes, the concepts of comparative negligence and assumption of the risk are distinct
concepts. However, regardless of which concept applies, the reasonableness or
unreasonableness of the conduct of the plaintiff is what should be compared to the
defendant’s conduct in order to determine recovery. This is particularly true in view of
the statute that now specifically states that “contributory fault” includes express
assumption of the risk.
{¶60} In this case, the magistrate appears to have assessed and made findings
of fact with respect to the negligence of appellee and whether appellant’s conduct in
attempting to assist with securing the horse at-large was reasonable. The factual
determination was made that appellant “was more than 50% responsible for the injuries
she sustained as she was certainly aware of the risk in rescuing the horse and
proceeded in spite of those risks.” In other words, appellant was barred from recovery
because her assumption of a known risk was unreasonable and contributed more than
50% to her injuries. There is competent, credible evidence to support that
21 determination. Therefore, I agree with the majority that the decision of the trial court
should be affirmed.
COLLEEN MARY O’TOOLE concurs in part and dissents in part with a Dissenting
Opinion.
{¶61} I concur with the writing judge regarding the first assignment of error.
However, as the rescue doctrine clearly applies in this matter, I dissent as to appellant’s
remaining assignments of error.
{¶62} Regarding appellant’s second assignment of error, this writer concludes
that, given the well-recognized danger that loose horses pose, the rescue doctrine
clearly applies in this matter. The rescue doctrine has been well-established in Ohio
law for over a century. See Pennsylvania Co. v. Langendorf, 48 Ohio St. 316 (1891),
paragraphs one through three of the syllabus. Under the rescue doctrine, “‘[o]ne who is
injured in an attempt to rescue a person in danger as a result of that person’s own
negligence may recover from that person under established principles of negligence
including proximate causation.’” Skiles v. Beckloff, 9th Dist. Lorain No. 93CA005550,
1993 Ohio App. LEXIS 3824, *2-3 (Aug. 4, 1993), quoting Reese v. Minor, 2 Ohio
App.3d 440 (1st Dist.1981), syllabus. See also Langendorf at paragraph three of the
syllabus (unless the rescuer unnecessarily exposes himself or herself to danger, “the
injury should be attributed to the party that negligently, or wrongfully, exposed to
danger, the person who required assistance.”).
22 {¶63} Additionally, the rescue doctrine serves public policy interests in promoting
rescues and recognizes that the rescue response is a natural and probable
consequence of the negligence which created the peril. Skiles, supra, at *4-5.
{¶64} In her decision, the magistrate refers to the Equine Immunity Statute (R.C.
2305.321) as evidence of the known dangers that horses present. Despite the
undisputed danger presented by horses running loose, the magistrate determined that,
at the exact time of the rescue, and injury to appellant, the horses did not present an
imminent danger of harm because they were no longer on the roadway: thus the rescue
doctrine did not apply. This finding is completely at odds with the magistrate’s own
description of how dangerous horses can be. The trial court’s finding is essentially: this
situation was so dangerous that appellant assumed the risk of injury—but it was not so
dangerous as to invoke the rescue doctrine.
{¶65} A trial court’s findings of fact must be given deference, and, as such, this
court will not disturb such determinations save an abuse of discretion. McPhillips v.
United States Tennis Assn. Midwest, 11th Dist. Lake No. 2006-L-235, 2007-Ohio-3595,
¶28. The term “abuse of discretion” is one of art, connoting judgment exercised by a
court which neither comports with reason, nor the record. State v. Ferranto, 112 Ohio
St. 667, 676-678 (1925). An abuse of discretion may be found when the trial court
“applies the wrong legal standard, misapplies the correct legal standard, or relies on
clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-
Ohio-1720, ¶15 (8th Dist.)
{¶66} The decision of the trial court that these horses running loose did not
present an imminent threat/danger because they were not on the roadway does not
23 comport with reason or the record. Additionally, the writing judge notes that the risk of
danger was mitigated by the presence of police officers on the scene. The trial court
and writing judge ignore the fact that the horses presented an imminent danger to the
police officers who were trying to capture them: a danger not mitigated by the horses
being off the roadway.
{¶67} Additionally, both officers testified that they were incapable of handling this
situation and would not have been able to secure the horses without the help of
appellant. The officers testified that the horse, Kush, would buck, rear and run
whenever they approached him. They also testified that the other two horses would
follow Kush when he ran. We call the police to handle dangerous, emergency
situations. A situation that is beyond the ability of law enforcement to handle—without
the aid of a specialist—is not only dangerous by definition, it clearly invokes the rescue
doctrine.
{¶68} Had appellant not come to the aid of the officers, they would have to hope
the owner (who does not live where the horses are kept) would arrive soon, or be forced
to call in an expert horseman to secure the horses. How long would this have taken?
How many times would these horses have crossed the road—presenting an even
graver danger to the public—in the time it would take for the police to secure the
professional help needed?
{¶69} The writing judge states that appellant’s decision was not “compelled by
an emergency situation.” The mere fact that the horses were in a field near the
roadway and not in the roadway does not lessen the danger present in the situation.
How are loose horses, roaming in a field near a roadway significantly less dangerous
24 than a horse in the roadway? The magistrate, trial court and writing judge have
inappropriately taken an ongoing, continuing emergency situation and broken it down to
separate, discrete parts: imminent and non-imminent danger. The fact remains that the
entire time these horses were loose was, by definition, an emergency situation. To hold
otherwise ignores the inherent risk to the public that loose horses present. It also
ignores the clear warnings about horses contained in R.C. 2305.321.
{¶70} Additionally, by focusing on the alleged lack of danger the horses
presented, because they were not in the roadway, the trial court and the writing judge
have employed the incorrect standard by which to judge the actions of appellant. As the
Third District in Marks v. Wagner noted:
the violation of the duty of the defendant to the rescuer occurs at the moment when the duty to the person to be rescued is breached setting in motion the forces triggering the rescue attempt; i. e., the defendant’s actionable negligence occurs at that time. Though we know of no other Ohio cases which have previously treated the question, the issue of whether the proposed rescuer is thereafter contributorily negligent in attempting a rescue is determined, not by a consideration of the circumstance of the actual peril at that time of the person to be rescued, but by a consideration of the mental state of the rescuer, as to what he reasonably believed from the facts known to him the peril of the person to be rescued to be at that time. More simply stated, the circumstance to be considered is not the fact of peril but the reasonable belief of continued peril.
52 Ohio App.2d 320, 324 (1977).
{¶71} Even assuming, for the sake of argument, that the location of the horses in
the field presented no imminent danger, appellant reasonably believed that loose
horses presented an ongoing emergency situation that needed to be dealt with to insure
the safety of the public.
25 {¶72} The public policy implications of this decision are also concerning. There
was testimony that these horses had gotten loose previously (at least five or six times
prior to appellant’s injury) and that neighbors, including appellant, would help corral the
horses. After this decision it must be assumed that no neighbor will aid in the recovery
of loose horses anywhere in this appellate district. No rational person is going to
volunteer to help corral a runaway horse if they know that they might be responsible for
any injury they might suffer. The consequences of this decision are that in future
situations involving loose horses, police officers will have to spend significant time trying
to locate an expert to aid them. Experts, who, no doubt, will want to be indemnified for
any injuries they may suffer. How long will it take to obtain the services of such
experts? And how much damage might be done by these loose horses in the
meanwhile?
{¶73} The writing judge’s decision will lead to situations where loose horses will
run free for extended periods of time because no rational volunteer will aid in their
capture. Law enforcement will have to spend precious time and energy seeking expert
help while the horses continue to roam free. And the risk of harm to the public will be
increased.
{¶74} A decision that has the result of increasing the risk of harm to the public
does not comport with reason. A far better resolution is for the person whose
negligence created the dangerous situation to be held responsible for his actions.
{¶75} I respectfully concur in part and dissent in part.