Legal Memorandum: Defense of Assumption of the Risk in OH

Issue: In Ohio, when will a plaintiff be considered to have legally assumed the risk of injuries?

In Taylor v. Yale & Towne Mfg. Co., 36 Ohio App. 3d 62, 63, 520 N.E.2d 1375, 1376 (1987), the court stated in its syllabus that “[a] product liability action based upon strict liability for failure to provide an adequate warning must fail when the danger or potentiality of danger is generally known or recognized.” 

In determining whether a party has assumed the risk, the focus must be upon the “product to determine the risks assumed, not the conduct of the [plaintiff] in failing to use available safety equipment or of the harm that would ensue from its failure.”  Durnell v. Raymond Corp., No. 98AP-1577, 1999 Ohio App. LEXIS 5373, 4, 88 Ohio St. 3d 1448, 725 N.E.2d 287 (10th App. Dist. Nov. 16, 1999); appeal denied, 88 Ohio St. 3d 1448, 725 N.E.2d 287 (2000).  The defense of assumption of the risk requires the jury to consider and answer three different questions:

1) Did the plaintiff have full knowledge of the condition;

2) Was the condition one which was patently dangerous to the plaintiff; and

3) Did the plaintiff voluntarily expose herself to the hazard created?

Goodin v. Corry, 5 Ohio App. 3d 178, 450 N.E.2d 727, 728 (1982) (citing Briere v. Lathrop Co., 22 Ohio St. 2d 166, 174-75, 258 N.E.2d 597, — (1970)). 

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