The question before us is whether the defense of assumption of risk is available to an “employer,” as defined in R. C. 4101.01(C),
By statutory definition, “frequenter” embraces business invitee, and “employer” is equivalent to an owner or occupier оf premises. Concededly, at the time of her injuries, appellant was on the premises of appellees as a frеquenter or business invitee and appellees were the owner and occupier, respectively, of those prеmises.
R. C. 4101.11 is no more than a codification of the common-law duty owed by the owner or occupier of premises tó business invitees to keep his premises in a reasonably safe condition and to give warnings of latent or concealed pеrils
The first paragraph of the syllabus of Plas, approving and following Davis, both of which were decided long after thе adoption of the predecessor of R. C. 4101.11, held:
“In an action by a contractor’s employee against a contractee for injuries resulting from the condition of the premises of the contractee . . . his assumption of the risks arising from thosе conditions constitute valid defenses.” In both Plas and Davis, the contractor’s employee fell squarely within the definition of a “frequenter” undеr R. C. 4101.01(E), but the actions were not based on R. C. 4101.11.
Three years before employees and employers were accordеd the benefits, as well as the detriments, of the Workmen’s Compensation Act (103 Ohio Laws 72), the General Assembly, by enacting what is now R. C. 4113.06
We hоld, therefore, that in the absence of a statute abrogating the common-law defense of assumption of risk, the defensе remains available in an action brought either at common law or under R. C. 4101.11.
Appellant’s second proposition of law states:
“Where one of the duties imposed upon . . . [aрpellant] . . . involves the daily purchase of groceries from a supermarket located directly across the streеt from the restaurant, appellant as a matter of law did not voluntarily assume a known risk by walking across the supermarket parking lot. ...” We disagree.
In Briere v. Lathrop Co. (1970),
We find, therefore, no error prejudicial to appellant.
Judgment affirmed.
Notes
R. C. 4101.01(C) reads:
“ ‘Employer’ means every person, firm, corporation, agent, manager, representative, or other person having control or custody of any employment, place of employment, or employee.”
R. C. 4101.01(E) reads:
“ ‘Frequenter’ means every person, other than an employee, who may go in or be in a place of employment under circumstances which render him other than a trespasser.”
R C. 4101.11 reads:
“Every employer shall furnish employmеnt Which is safe for the employees engaged therein, shall furnish a place of employment which shall be safe for the employees therein and for frequenters thеreof, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes, follow and obey оrders, and prescribe hours of labor reasonably adequate to render such employment and places of emрloyment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters.” (Emphasis supplied.)
R. C. 4113.06 reads, in part:
“When it appea/rs in an action described in Section 4113.03 of the Revised Code thаt the injury or death was caused in whole or in part by the neglect of the employer . . . the fact that such employee сontinued in said employment with knowledge of such negligent omission or want of care or such defective or unsafe condition is not a defense unless by the terms of his employment it was expressly made the duty of such employee to report such neglect or such defective or unsafe condition to the employer and the evidence discloses that such employеe failed so to report, and that the employer was not otherwise possessed of knowledge of such negligent, unsafe, or defective condition.” (Emphasis supplied.)
In Briere v. Lathrop Co. (1970),
However, we held that where an employee of an independent contractor is injured while working on the job of defendant contractor, and “conflicting evidence is presented regarding the danger . . . [involved], a jury question is presented as to whether plaintiff assumes the risk of injury. . . .”