489 N.E.2d 1317 | Ohio Ct. App. | 1985
This appeal originated in the Court of Common Pleas of Montgomery County. Plaintiff Janice Phillabaum filed a negligence action against defendant Mark Kidd for injuries suffered as a result of a domestic dispute. The matter was tried to a jury, the latter rendering a verdict finding plaintiff sixty percent negligent and defendant forty percent negligent; defendant was thereby absolved of any liability under the comparative negligence statute, R.C.
Appellant assigns the following as error:
"1. Whether, in light of the Supreme Court decision ofAnderson v. Ceccardi [(1983),
"2. Whether, assuming the concept of assumption of the risk maintains some separate existence following Anderson, it was error for the trial court not to cast assumption of risk in terms of negligence principles."
A review of the trial court's jury instructions indicates that, in addition to the comparative negligence charge, the jury was also instructed on the affirmative defenses of assumption of the risk and contributory negligence. Appellant claims Anderson v.Ceccardi (1983),
R.C.
"* * * The conduct previously considered as assumption of [the] risk by the plaintiff shall be considered by the trier of the fact under the phrase `contributory negligence of the person bringing the action' under R.C.
In light of the above statement, we find it error to have instructed the jury on the affirmative defense of assumption of the risk. See Emmel v. Dayton Power Light Co. (Apr. 10, 1984), Miami App. No. 83-CA-9, unreported (under the circumstances, and in light of Anderson v. Ceccardi, instruction on assumption of risk error). We further conclude, however, upon a review of the entire record that the error was not prejudicial.
The facts indicate that defendant's ex-wife and daughter were residing with plaintiff (the ex-wife's mother). On a Friday evening in September 1982, defendant and his mother arrived at plaintiff's home. It was defendant's weekend to have his daughter. Defendant left his mother in the car, went to the house, picked up his daughter and proceeded back to his car. Pam Kidd, defendant's ex-wife, followed him to the car and an argument ensued. Plaintiff, inside the house lying on the couch, heard the argument and went outside to investigate. Plaintiff testified that she took the child by the shoulders and pulled her away from defendant. She further stated that she suggested the combatants resort to the judicial process to settle their differences. Defendant replied that plaintiff should mind her own business and further reminded her she was not a member of the bar. The events that followed are largely in dispute.
According to plaintiff, defendant jumped into his car and "peeled out of the parking lot." In the process, defendant's car fishtailed toward plaintiff, ran over her toes and propelled her into the air and out onto the street.
On the other hand, defendant claims that after exchanging words with plaintiff, he got into his car and began to leave the parking lot. He was unable to close his door as his ex-wife Pam and plaintiff were standing between him and his open door. Defendant testified that he was being struck by Pam as the car moved toward the street, but he did not actually see plaintiff hit him. As he reached the street and began to turn right, he noticed plaintiff was no longer next to his daughter. At this point, defendant began down the street. Pam put both feet in the car and held on to the car door with her hands. Some fifty to one-hundred feet down the street, defendant stopped and Pam ran back to assist her mother. *151
Both parties presented witnesses to corroborate their version of the facts: plaintiff presented her son and her daughter Pam; defendant called his mother. The only seemingly neutral witness, Chris Gentry, corroborated in part both defendant and plaintiff's case. Thus, the outcome of the case became a test of credibility.
We have carefully examined the trial court's instructions; and, in spite of the charge on assumption of the risk, we are of the opinion that the instructions as a whole fairly apprised the jury of the law. As we indicated above, the jury's verdict was largely a matter of whom they close to believe. It is unlikely that the jury instructions resulted in prejudicial error; accordingly, the judgment is hereby affirmed.
Judgment affirmed.
KERNS and WILSON, JJ., concur.