Gallagher v. Cleveland Browns Football Co.

[This opinion has been published in Ohio Official Reports at 

74 Ohio St.3d 427

.]




     GALLAGHER ET AL., APPELLANTS, v. CLEVELAND BROWNS FOOTBALL
                             COMPANY ET AL., APPELLEES.
     [Cite as Gallagher v. Cleveland Browns Football Co., 

1996-Ohio-320

.]
Torts— Participants and spectators at sporting event are barred from bringing
        actions for injuries that arise out of the normal conduct of the game unless
        the conduct amounts to an intentional tort or reckless misconduct.
                                  __________________
A defendant who wishes to rely on the defense of primary assumption of risk must
           raise it before or during trial. Failure to raise primary assumption of risk
           before or during trial precludes the defendant from raising the defense
           for the first time in a motion for judgment notwithstanding the verdict.
                                  __________________
   (No. 94-835—Submitted September 13, 1995—Decided February 7, 1996.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 63311.
                                  __________________
        {¶ 1} Plaintiff-appellant Michael Gallagher, a sportscaster employed by
WJET-TV in Erie, Pennsylvania, was assigned by the station to cover a professional
football game between the Houston Oilers and Cleveland Browns at Cleveland
Municipal Stadium on December 18, 1988. Appellant was operating a video
camera on the sideline of the field late in the first half when the Oilers had the ball
at the Browns’ nineteen-yard line. The Oilers were moving toward the Browns’
goal line, at the end of the field commonly known as “the Dawg Pound.”
        {¶ 2} Anticipating that the Oilers would attempt to score by throwing a pass
into the end zone, appellant positioned himself and his video camera off the field
of play, near the corner of the end zone. At that end of the field, the bleachers are
close to the back of the end zone and a slope separates the playing field from the
                             SUPREME COURT OF OHIO




spectators. It had snowed the night before the game, and although the snow had
been removed from the field, the hill and the area between the hill and the end zone
were still snow-covered. A line around the field to mark where media personnel
should stand was covered by snow and so was not visible. After being reminded
by a member of the stadium’s security force that he was subject to a policy requiring
all media personnel to kneel in this area to keep from obstructing spectators’ views
of the game, appellant knelt and prepared to capture the play on his video camera.
       {¶ 3} The Oilers then attempted a pass into the corner of the end zone in
front of where appellant was positioned. The pass was overthrown and came
directly at appellant. An Oilers receiver and a Browns defender collided with
appellant as they went for the ball. Appellant suffered extensive injuries to his jaw,
neck and mouth.
       {¶ 4} Appellant filed a complaint in the Cuyahoga County Common Pleas
Court, naming as defendants the Cleveland Browns Football Company, Inc., the
Cleveland Browns, Inc., the Cleveland Stadium Corporation (collectively referred
to as appellees or as “the Browns”), and Andy Frain Services, Inc. (“Andy Frain”),
a company hired to provide security at the stadium. The complaint was later
amended to add appellant Gallagher’s medical insurer, Northbrook Property and
Casualty Insurance Company, as a plaintiff.
       {¶ 5} In his complaint, appellant alleged that defendants required him to
crouch or kneel in an unprotected area of the sidelines of the field, thereby making
it difficult for him to avoid the oncoming players, and so causing his injuries.
Appellant also alleged that defendants were negligent in failing to provide him with
a safe place from which to film the game. In their answers, along with other
defenses, all defendants asserted generally as affirmative defenses that appellant
was contributorily negligent and that appellant assumed the risk of his injuries.
Specifically, the Browns answered that “plaintiff Michael Gallagher assumed any
risk of injury” without further elaboration.




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                                January Term, 1996




       {¶ 6} The case proceeded to be tried before a jury. At the close of evidence,
the Browns and Andy Frain each moved for a directed verdict. The Browns
premised their motion on the grounds that appellant was a licensee when he was
injured, and that the Browns had not breached the duty of care owed to a licensee.
Defendant Andy Frain’s motion argued that Andy Frain owed no duty to Gallagher,
and also that no evidence had been introduced to establish that the security guard
who reminded appellant to kneel was Andy Frain’s employee rather than one of the
Browns’ own employees. The trial court denied the Browns’ motion, but granted
a directed verdict for Andy Frain based on the failure of the evidence to support a
finding that one of Andy Frain’s employees was involved.
       {¶ 7} The trial court instructed the jury on the duty of care owed to invitees,
licensees and trespassers, and on the standards applicable to determining if a breach
of duty occurred. The court also instructed that implied (secondary) assumption of
risk could reduce appellant’s recovery if the jury decided that appellees were
negligent. Appellees did not request an instruction on primary assumption of risk,
and none was given.
       {¶ 8} The jury returned a verdict in appellant’s favor for $800,000, and also
in favor of appellant’s insurer for $106,000. The jury determined that appellant
was thirty-five percent responsible for his own injuries due to contributory
negligence/implied assumption of risk. Under comparative fault principles, the
recoveries were reduced accordingly.
       {¶ 9} After the trial court entered judgment on the verdict, appellees moved
for judgment notwithstanding the verdict, or in the alternative for a new trial. At
this point, for the first time, appellees urged that they owed no duty to appellant, so
that any judgment against them was barred by the doctrine of primary assumption
of risk. The trial court denied the motion.
       {¶ 10} The sole assignment of error on appeal was that the trial court had
erred in denying appellees’ motion for judgment notwithstanding the verdict. The




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                              SUPREME COURT OF OHIO




Court of Appeals for Cuyahoga County, in a split decision, reversed the judgment
of the trial court and held for appellees on their primary assumption of risk
argument. The dissenting judge believed that appellees had waived the defense of
primary assumption of risk by failing to raise it until after the jury returned its
verdict, and would have affirmed appellant’s award.
        {¶ 11} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
                                __________________
        Nurenberg, Plevin, Heller & McCarthy Co., L.P.A., Joel Levin, Maurice L.
Heller and Kathleen J. St. John, for appellants.
        Isaac, Brant, Ledman & Teetor, Charles E. Brant, Donald L. Anspaugh and
David E. Ballard; Kitche, Deery & Barnhouse and Eugene B. Meador, for
appellees.
        Thomas H. Bainbridge, urging reversal for amicus curiae, Ohio Academy
of Trial Lawyers.
                                __________________
        ALICE ROBIE RESNICK, J.
        {¶ 12} The issue presented is whether a defendant who makes no attempt to
introduce primary assumption of risk as an issue before or during a trial, but instead
waits until after the jury returns a verdict in favor of the plaintiff, is precluded from
relying on primary assumption of risk as a complete defense in a motion for
judgment notwithstanding the verdict. For the reasons that follow, we determine
that appellees waived primary assumption of risk as a defense because they failed
to raise it in a timely manner.        By failing to take advantage of numerous
opportunities to inject the defense of primary assumption of risk into the trial before
the case went to the jury, appellees made the tactical determination to rely on the
semantically related but distinctly separate defense of implied (secondary)
assumption of risk. Having waived the defense of primary assumption of risk,




                                           4
                                        January Term, 1996




appellees were precluded from raising it in a motion for judgment notwithstanding
the verdict. We reverse the judgment of the court of appeals, and reinstate the
judgment of the trial court.1
         {¶ 13} To comprehend why appellees clearly waived primary assumption
of risk as a defense, it is necessary first to trace the development of two types of
assumption of risk recognized by this court’s opinion in Anderson v. Ceccardi
(1983), 

6 Ohio St.3d 110

, 6 OBR 170, 

451 N.E.2d 780

. Anderson held that the
General Assembly’s then-recent enactment of R.C. 2315.19 (the comparative
negligence statute) required that the defenses of implied assumption of risk and
contributory negligence be merged, so that a plaintiff who impliedly assumed the
risk of a particular action was no longer totally barred from recovery due to that
assumption.2 The court thus found that implied assumption of risk could limit a
plaintiff’s recovery in the same way that contributory negligence limited recovery
under R.C. 2315.19. In explaining its reasoning, the Anderson court cogently
observed:
         “Under the prior cases, the overlap in these doctrines [implied assumption
of risk and contributory negligence] 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



1. Appellant did not specifically argue that appellees waived the defense of primary assumption of
risk in his brief in opposition to defendants’ motion for judgment notwithstanding the verdict filed
in the trial court after the jury had returned its verdict. Appellant also did not specifically argue that
appellees waived the defense in his answer brief filed in the court of appeals. However, appellant
in both briefs strenuously urged that a “no duty” analysis was inapplicable, based on the facts of the
case and the way the assumption of risk issues developed before and at trial. Appellant repeatedly
stressed that this was an implied assumption of risk case. The record shows that the reason this was
an implied assumption of risk case is that appellees chose to try it as such a case, and so waived a
primary assumption of risk defense.

2. Current R.C. 2315.19 has been amended to reflect the holding of Anderson that implied
assumption of risk and contributory negligence merge for purposes of that statute. See Section 3(C),
Am.Sub.H.B. No. 1, 142 Ohio Laws, Part I, 1661, 1752.




                                                    5
                             SUPREME COURT OF OHIO




recovery. However, now, under R.C. 2315.19, 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.” 

6 Ohio St.3d at 113

, 6 OBR at 173, 

451 N.E.2d at 783

.
       {¶ 14} Although the Anderson court merged implied assumption of risk
with contributory negligence, the court found that two other types of assumption of
risk did not merge with contributory negligence—express (e.g., contractual)
assumption of risk and primary (“no duty”) assumption of risk.            Anderson’s
statement that primary assumption of risk does not merge with contributory
negligence is of critical importance to our discussion here because when a plaintiff
is found to have made a primary assumption of risk in a particular situation, that
plaintiff is totally barred from recovery, as a matter of law, just as he or she would
have been before Anderson. The net result of Anderson’s differentiation between
primary and implied assumption of risk is that now it is of utmost importance which
type of assumption of the risk is put forth as a defense. In fact, after Anderson,
these two defenses are so distinct that it is misleading that each continues to bear
the title “assumption of risk,” as if the two were interrelated concepts. Due to the
confusion occasioned by continuing usage of “assumption of risk,” many
commentators have advocated abolishment of the term.             “[T]he concept of
assuming the risk is purely duplicative of other more widely understood concepts,
such as scope of duty or contributory negligence. ***It adds nothing to modern law
except confusion.” 4 Harper, James & Gray, Law of Torts (2 Ed.1986) 259, Section
21.8. However, despite this confusion, Ohio continues to recognize the term and
its accompanying variations.
       {¶ 15} Primary assumption of risk is a defense of extraordinary strength.
Based on the distinction drawn in Anderson between implied assumption of risk




                                          6
                                January Term, 1996




and primary assumption of risk, and the doctrine that a plaintiff who primarily
assumes the risk of a particular action is barred from recovery as a matter of law, it
becomes readily apparent that primary assumption of risk differs conceptually from
the affirmative defenses that are typically interposed in a negligence case. An
affirmative defense in a negligence case typically is the equivalent of asserting that
even assuming that the plaintiff has made a prima facie case of negligence, the
plaintiff cannot recover. A primary assumption of risk defense is different because
a defendant who asserts this defense asserts that no duty whatsoever is owed to the
plaintiff. See Prosser & Keeton, Law of Torts (5 Ed.1984) 496-497, Section 68
(Primary assumption of risk “is really a principle of no duty, or no negligence, and
so denies the existence of any underlying cause of action.”). Because a successful
primary assumption of risk defense means that the duty element of negligence is
not established as a matter of law, the defense prevents the plaintiff from even
making a prima facie case.
       {¶ 16} Because of the great impact a ruling in favor of a defendant on
primary assumption of risk grounds carries, a trial court must proceed with caution
when contemplating whether primary assumption of risk completely bars a
plaintiff’s recovery. Indeed, in Cincinnati Base Ball Club Co. v. Eno (1925), 

112 Ohio St. 175

, 

147 N.E. 86

, the case cited in Anderson as support for the survival of
the concept of primary assumption of risk, the doctrine itself was inapplicable, as
plaintiff there was a spectator injured by a ball hit by a player who was practicing
very near the stands. The Eno court intimated in dicta that primary assumption of
risk would have applied if plaintiff had been struck by a ball hit into the stands
during the normal course of a game: “[I]t is common knowledge that in baseball
games hard balls are thrown and batted with great swiftness, that they are liable to
be thrown or batted outside the lines of the diamond, and that spectators in positions
which may be reached by such balls assume the risk thereof.” Eno, 

112 Ohio St. at 180-181

, 

147 N.E. at 87

. Eno demonstrates that only those risks directly associated




                                          7
                                  SUPREME COURT OF OHIO




with the activity in question are within the scope of primary assumption of risk, so
that no jury question would arise when an injury resulting from such a direct risk is
at issue, meaning that no duty was owed by the defendant to protect the plaintiff
from that specific risk. In many situations, as in Eno, there will be attendant
circumstances that raise questions of fact whether an injured party assumed the risk
in a particular situation. In that case, the doctrine of implied assumption of risk,
not primary assumption of risk, would be applicable.
         {¶ 17} Appellees in their answer raised a generic claim of assumption of
risk as an affirmative defense. From that alone, at that time in the litigation, it was
not clear whether they intended to rely on primary assumption of risk, or on implied
assumption of the risk, or possibly on both, as their theory of defense. By raising
assumption of risk in their answer, appellees met the minimal Civ.R. 8(C) pleading
requirement that “a party shall set forth affirmatively *** assumption of risk ***
and any other matter constituting an avoidance or affirmative defense.”3 (Emphasis


3. An argument could be made that appellees waived a primary assumption of risk defense pursuant
to Civ.R. 8(C) by never specifically raising it in any pleading. Implied assumption of risk assumes
establishment of a prima facie case (including the duty element), and therefore is a traditional
affirmative defense. However, primary assumption of risk is technically not an affirmative defense,
as it directly attacks the duty element of a prima facie negligence case, rather than accepting the
allegations of the complaint as true. See 4 Harper, James & Gray, Law of Torts (2 Ed.1986) 256,
Section 21.7 (“[A]ssumption of risk in the primary sense does not, analytically, describe a defense
at all. It is simply a left-handed way of describing a lack of duty.”). Yet “it could be urged that a
defendant who would escape the general rule requiring due care should plead and prove facts that
bring him within an exception to it.” 

Id. at 258

, Section 21.7. Regardless of this ambiguity, we
must acknowledge that Civ.R. 8(C) simply requires a party to put forth “assumption of risk” as an
affirmative defense without taking into account the significant distinction between primary and
secondary assumption of risk engendered by Anderson’s statement that primary assumption of risk
does not merge with contributory negligence. Like the court of appeals majority, we therefore feel
compelled to find that appellees met their minimal Civ.R. 8(C) burden by generically raising
assumption of risk as an affirmative defense. Nevertheless, even assuming that the answer met the
minimal Civ.R. 8(C) requirement, primary assumption of risk could still be waived if appellees did
not timely inject it as an issue in the litigation.
           The entire seemingly circular preceding discussion illustrates just some of the confusion
associated with the term and concept of assumption of risk. It may be worthwhile to consider
amending Civ.R. 8(C) to deal with the ambiguities, in what perhaps could be the first step toward
eventual abolishment of the term. It is less confusing merely to say that a defendant owed no duty
to a plaintiff, rather than to say that a plaintiff primarily assumed the risk of injury. It is less




                                                 8
                                     January Term, 1996




added.) See Hoover v. Sumlin (1984), 

12 Ohio St.3d 1, 3-4

, 12 OBR 1, 3, 

465 N.E.2d 377, 379

. Thus, this case can be distinguished from the more common
waiver situation in which a defendant fails to raise a defense in the answer, also
fails to amend the answer pursuant to Civ.R. 15(A), and further cannot obtain
amendment to conform to the evidence under the “express or implied consent of
the parties” provision of Civ.R. 15(B) because the issue was not developed at trial,
i.e., when it was not tried by the express or implied consent of the parties. See State
ex rel. Evans v. Bainbridge Twp. Trustees (1983), 

5 Ohio St.3d 41

, 5 OBR 99, 

448 N.E.2d 1159

; Cooper v. Grace Baptist Church of Columbus, Ohio, Inc. (1992), 

81 Ohio App.3d 728, 735

, 

612 N.E.2d 357, 361

. However, even though it can be found
that appellees avoided a waiver by virtue of the generic statement in their answer
that plaintiff’s claim was barred by assumption of risk, appellees still had a
responsibility to specifically raise primary assumption of risk sometime before the
case went to the jury, and to put appellant and the court on notice through
supporting arguments that primary assumption of risk would be an issue in the
litigation.
         {¶ 18} Because primary assumption of risk, when applicable, prevents a
plaintiff from establishing the duty element of a negligence case and so entitles a
defendant to judgment as a matter of law, it is an issue especially amenable to
resolution pursuant to a motion for summary judgment. Yet appellees never moved
for summary judgment or attempted in any other way to call primary assumption
of risk to the trial court’s attention prior to trial. In most cases, when a defendant
potentially has a full and complete defense available that would defeat a plaintiff’s
prima facie negligence case, one would expect that defendant to raise that defense
as soon as possible in an attempt to prevail without going to trial. Although there
is no suggestion in Civ.R. 56 that a party who fails to make a motion for summary

confusing to say that a plaintiff was contributorily negligent, rather than to say that a plaintiff
impliedly assumed the risk of injury.




                                                9
                             SUPREME COURT OF OHIO




judgment on a particular issue waives the right to raise the issue, judicial economy
favors raising an issue on which the moving party claims entitlement to “judgment
as a matter of law,” Civ.R. 56(C), at the earliest practicable time. While appellees
therefore did not waive primary assumption of risk by the mere failure to raise it
through an argument that they owed no duty to plaintiff in a summary judgment
motion, that failure further supports our ultimate conclusion.
       {¶ 19} Besides our concerns with appellees’ failure to make a motion for
summary judgment on primary assumption of risk grounds, other developments at
trial make it obvious that implied assumption of risk was the defense appellees
chose to rely on, to the obvious exclusion of any primary assumption of risk
defense. A close examination of the record makes manifest that appellees made
absolutely no attempt to inject primary assumption of risk as an issue in this case
until after the jury returned a verdict against them. The following observations
illustrate that appellees waived primary assumption of risk as a defense because
they failed to carry their burden of timely making “no duty” an issue:
•   As alluded to above, appellees generically stated in their answers that appellant
    assumed the risk of the injuries. Although this avoided a Civ.R. 8(C) waiver of
    primary assumption of risk as a defense, it did not in any way specifically make
    appellees’ lack of duty an issue in the case.
•   Appellees conspicuously did not discuss primary assumption of risk at all in
    their trial brief filed just two weeks prior to trial. Rather, they discussed what
    duty of care they owed: whether a duty to an invitee, a licensee, or a trespasser.
    Thus, appellees conceded that they owed a duty to appellant, a position clearly
    inconsistent with primary assumption of risk, which involves no duty and
    which, if established, would have prevented appellant from making a prima
    facie negligence case.
•   When appellees submitted proposed jury instructions with their trial brief, they
    did not request an instruction on primary assumption of risk. Likewise, when



                                          10
                                January Term, 1996




    appellees later proposed additional jury instructions, no primary assumption of
    risk instruction was requested. Obviously, appellees continued to concede that
    they owed a duty to appellant.
•   When appellees moved for a directed verdict after the presentation of evidence
    at trial, their argument again focused on appellant’s status, claiming that he was
    a licensee rather than an invitee, and they accordingly claimed that they owed
    him only a duty to refrain from willful and wanton conduct. Appellees never
    claimed then that they owed appellant no duty whatsoever, and at that time
    never mentioned primary assumption of risk.
•   In closing arguments to the jury, appellees did not raise primary assumption of
    risk, and continued to advance their “licensee” argument, conceding that they
    owed a duty to appellant.
•   After the trial judge instructed the jury, the judge gave counsel for appellees an
    opportunity to state any objections for the record. None of the instructions were
    on primary assumption of risk, and appellees’ attorney stated that he had no
    objections. The case then went to the jury with appellees’ never making “no
    duty” an issue.
       {¶ 20} At this point in the trial, when the case went to the jury, appellees
had clearly waived the right to raise primary assumption of risk as a defense.
Because primary assumption of risk is a question of law for a court to decide, rather
than for a jury, we detail many of the above considerations primarily to illustrate
that appellees made the conscious choice, for whatever reason, to allow this case to
go to the jury as it did. Appellees’ waiver occurred due to their total failure to call
primary assumption of risk to the attention of the trial judge until after the jury
returned its verdict. We do not mean to imply that a primary assumption of risk
defense could be raised solely through proposed jury instructions or during closing
arguments to the jury. To the contrary, because appellees never made a primary
assumption of risk argument, they put on no evidence to support application of that




                                          11
                               SUPREME COURT OF OHIO




defense, which is a legal question for the court. No jury instructions on primary
assumption of risk could have been appropriate, even if appellees would have
proposed them, as there was no evidence before the jury to support the issue. See
Murphy v. Carrollton Mfg. Co. (1991), 

61 Ohio St.3d 585, 591

, 

575 N.E.2d 828, 832

.
       {¶ 21} In the same way that primary assumption of risk, in that it is a
question of law to be decided by the trial judge, is not appropriately raised when
factual questions are presented to the jury to determine whether a defendant was
negligent and a plaintiff contributorily negligent, primary assumption of risk is also
not a defense particularly amenable to presentation in a motion for a directed verdict
or in a motion for judgment notwithstanding the verdict. The same standard applies
to resolve both of these motions. Posin v. A.B.C. Motor Court Hotel (1976), 

45 Ohio St.2d 271, 275

, 

74 O.O.2d 427, 430

, 

344 N.E.2d 334, 338

. That standard,
found in Civ.R. 50(A)(4), is that the motion should be granted if, when the evidence
is strongly construed in favor of the nonmoving party, “reasonable minds could
come to but one conclusion upon the evidence submitted and that conclusion is
adverse to such party.” This standard obviously presupposes that any questions of
law have been previously resolved, and is concerned with questions of fact that are
to be submitted to the jury (directed verdict motion) or have already been submitted
to the jury (motion for judgment notwithstanding the verdict.) Inasmuch as the
standard is concerned with what determination could be reached by reasonable
minds based upon the evidence presented, these motions are not the proper way to
resolve a question dependent upon a ruling by the trial court on a matter of law.
       {¶ 22} For all the foregoing reasons, we hold that a defendant who wishes
to rely on the defense of primary assumption of risk must raise it before or during
trial. Failure to raise primary assumption of risk before or during trial precludes
the defendant from raising the defense for the first time in a motion for judgment
notwithstanding the verdict.




                                         12
                                 January Term, 1996




        {¶ 23} For purposes here, the policy reason behind the requirement that a
defendant has a responsibility to make primary assumption of risk an issue by
calling it to the trial court’s attention prior to the jury’s reaching a verdict is
obvious—it is a fundamental tenet of jury trial procedure that the judge decides
questions of law, and the jury, as factfinder, then decides questions of fact. Our
entire system of trial procedure is built around this basic proposition, which would
be turned on its ear if we allowed the jury first to decide questions of fact, and then
expected the trial court to rule on pure issues of law after the jury returns a verdict.
We require the defendant to put forth alleged defenses, and arguments to support
them, in order to define the issues in a case to put both the plaintiff and the trial
court on notice of the particular defense to be at issue so that the litigation may be
formulated and shaped. When the defendant interposes an avoidance or affirmative
defense which appears to have merit, the defense frequently becomes an issue upon
which the case may turn. Generally, the plaintiff must vigorously oppose the
defense at the earliest opportunity. The idea that a defendant waives a defense he
or she fails to raise is especially applicable when the defendant supposedly has
available a defense that, if established, is of such extraordinary strength that it can
prevent the plaintiff from making a prima facie negligence case. If a plaintiff is not
put on notice of such a defense, he or she of course should not be expected to
anticipate it, as the plaintiff cannot counter a defense that has never been introduced
as an issue. Likewise, a trial judge is not required to anticipate the existence of a
defense that is not raised. To require a trial court to grant a defendant judgment as
a matter of law on an issue never timely raised would fly in the face of fundamental
rules of our adversarial system of trial, which place specific responsibilities on
parties involved in litigation to shape the course of the trial.
        {¶ 24} Appellees did not in any way urge application of the defense of
primary assumption of risk until after the jury had returned its verdict finding
appellees to be negligent and appellant to have been thirty-five percent negligent




                                           13
                                 SUPREME COURT OF OHIO




due to implied assumption of the risk and contributory negligence. Only after the
jury returned the award against them did appellees raise primary assumption of risk
in their motion for judgment nothwithstanding the verdict. At this time it was too
late, as the primary assumption of risk defense had already been waived. The trial
judge rightly denied the motion for judgment notwithstanding the verdict. The
court of appeals majority was mistaken in finding that appellees’ motion for
judgment notwithstanding the verdict was sufficient to raise the issue of primary
assumption of risk before the trial court, and to preserve the issue for appellate
review. The argument based on primary assumption of risk was waived when
appellees failed to raise it before the case went to the jury. To the extent that
appellees argue on appeal that the trial court erred by not granting their motion for
judgment notwithstanding the verdict, the failure to timely raise the issue before the
trial court also waived the issue for appeal. See State v. Williams (1977), 

51 Ohio St.2d 112

, 

5 O.O.3d 98

, 

364 N.E.2d 1364

, paragraph one of the syllabus (appellate
court need not consider an error which a party could have called to the trial court’s
attention but did not); Buchman v. Wayne Trace Local School Dist. Bd. of Edn.
(1995), 

73 Ohio St.3d 260, 271

, 

652 N.E.2d 952, 961

 (litigant cannot procure a
reversal of a judgment for an error for which the litigant was responsible).
        {¶ 25} Appellees in essence argue that this case should have never gone to
the jury, because appellant could not make a prima facie negligence case. However,
as discussed above, appellees failed to raise the defense of primary assumption of
risk until it was far too late. This case went to the jury in the way it did precisely
because appellees made the tactical choice, for whatever reason, to rely on implied
assumption of the risk as their defense, and not to rely on primary assumption of
risk.4 Appellees chose to focus the trial on the behavior of appellant, and claimed


4. The dissenting judge at the court of appeals discusses at length possible tactical advantages
appellees may have gained by declining to raise a primary assumption of risk defense at trial. See
Gallagher v. Cleveland Browns Football Co. (1994), 

93 Ohio App.3d 449, 466-469

, 

638 N.E.2d 14

                                      January Term, 1996




throughout that he had impliedly assumed the risk of his actions. Appellees could
have also presented a “no duty” defense, as the theory of primary assumption of
risk would require, but clearly did not. Only after the verdict was returned did
appellees for the first time raise primary assumption of risk as a defense.
         {¶ 26} In conclusion, it is apparent from the record here that appellees failed
to raise a primary assumption of risk defense in a timely manner. We reverse the
judgment of the court of appeals, and reinstate the judgment of the trial court.
                                                                             Judgment reversed.
         MOYER, C.J., F.E. SWEENEY, PFEIFER and COOK, JJ., concur
         DOUGLAS and WRIGHT, JJ., dissent.
                                    __________________




1082, 1094-1096 (Nugent, J., dissenting). The dissenting judge also points out that defendant Andy
Frain did request a jury instruction on primary assumption of risk, and also argued the defense in a
trial brief. 

Id. at 465

, 

638 N.E.2d at 1093, fn. 1

. Thus, unlike appellees, Andy Frain did attempt to
inject the primary assumption of risk issue into the litigation.




                                                 15
                                SUPREME COURT OF OHIO




           WRIGHT, J., dissenting.
           {¶ 27} Although I certainly favor judicial economy, I do not believe that it
should control the disposition of a case when it needlessly trammels substantial
justice.      Such a result is even more troubling when it is rooted in a
mischaracterization of a procedural issue. For these reasons and the supporting
analysis which follows, I respectfully dissent.
           {¶ 28} As the majority opinion acknowledges, the Browns did not waive
primary assumption of risk (“PAR”) at the pleading stage because the general
reference to “assumption of risk” in their answer satisfied the requirements of
Civ.R. 8. The majority opinion goes on, however, and recites a litany of factors,
the accumulation of which allegedly amounts to waiver of PAR.
           {¶ 29} I am at a loss to explain how any of these considerations force this
conclusion when most, if not all, of the truly cogent reasons given by the court
center on the jury’s fact-finding role. As the majority states repeatedly, PAR is a
question of law. As such, it is an issue which must be decided by the court. The
absence of evidence presented to the jury, the lack of instructions on PAR, and the
omission of any reference to this issue in closing arguments cannot possibly be
construed as waiver in the context of this particular case.
           {¶ 30} In addition, I am unaware of any rule that requires a legal issue to be
raised on summary judgment before it is entitled to an airing on a motion for a
directed verdict or judgment notwithstanding the verdict. Finally, Civ.R. 50(B)
permits a motion for judgment notwithstanding the verdict regardless of whether a
directed verdict premised on the same theory was requested. Accordingly, the
circumstances in the proceedings below strike me as inapplicable to this court’s
determination of this matter.
           {¶ 31} What is pertinent is that appellees raised the defense of assumption
of risk in their answer. For whatever reason, they chose to reserve PAR until after




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the jury returned its verdict. Since I see no principled reason to forbid this sort of
tactical calculation at the trial level, I would affirm the court of appeals’ decision.
       DOUGLAS, J., concurs in the foregoing dissenting opinion.
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