Goldfuss v. Davidson

[This opinion has been published in Ohio Official Reports at 

79 Ohio St.3d 116

.]




GOLDFUSS, ADMR., APPELLANT AND CROSS-APPELLEE, v. DAVIDSON, APPELLEE
                                AND CROSS-APPELLANT.

                   [Cite as Goldfuss v. Davidson, 

1997-Ohio-401

.]
Civil procedure—Plain error doctrine is not favored, but may be applied, when.
In appeals of civil cases, the plain error doctrine is not favored and may be applied
        only in the extremely rare case involving exceptional circumstances where
        error, to which no objection was made at the trial court, seriously affects the
        basic fairness, integrity, or public reputation of the judicial process, thereby
        challenging the legitimacy of the underlying judicial process itself. (Yungwirth
        v. McAvoy [1972], 

32 Ohio St.2d 285

, 

61 O.O.2d 504

, 

291 N.E.2d 739

; Schade
        v. Carnegie Body Co. [1982], 

70 Ohio St.2d 207, 209

, 

24 O.O.3d 316, 317

,
        

436 N.E.2d 1001, 1003

; and Cleveland Elec. Illum. Co. v. Astorhurst Land
        Co. [1985], 

18 Ohio St.3d 268

, 18 OBR 322, 

480 N.E.2d 794

, approved and
        followed.)
(Nos. 95-2014 and 95-2031—Submitted January 8, 1997—Decided June 25, 1997.)
  APPEAL and CROSS-APPEAL from the Court of Appeals for Portage County, No.
                                        94-P-0010.
                                  __________________
        {¶ 1} On May 26, 1990, a thief or thieves broke into a pole barn owned by
appellee and cross-appellant, Gene A. Davidson, and stole various items. Davidson’s
barn contained mechanical, electrical, and gardening tools, and was located
approximately one hundred feet from the Davidson home.                  During the police
investigation of that theft Davidson told officers that if thieves returned to his
premises, he would shoot them. The investigating officers advised Davidson that,
under the law, he had no right to use deadly force simply to prevent the theft of
property.
                               SUPREME COURT OF OHIO




        {¶ 2} Three days later, around midnight, Davidson’s wife received a telephone
call from a neighbor informing her that a car with its engine running and headlights
off was parked on a road near the Davidson property. From her kitchen window, and
despite darkness and pouring rain, Mrs. Davidson was able to observe the silhouettes
of one or two men standing by the pole barn.
        {¶ 3} When told of the men’s presence, Davidson called the police and then
retrieved a .38 caliber firearm from his bedroom, opened the kitchen window, and
yelled at the men, who began running away from the pole barn. Davidson again yelled
at the men, instructing them to stop, and fired four shots. In subsequent deposition
testimony, Davidson stated that he “fired warning shots over their heads and tried to
get them to stop so they could be arrested.”
        {¶ 4} A short while later officers found the body of Gregory G. Goldfuss, Jr.,
lying next to a crowbar on Davidson’s lawn between the pole barn and a state route
running adjacent to Davidson’s property. Goldfuss had been fatally wounded by a
bullet which struck him in his arm and traveled laterally, right to left, through his chest
in a nearly horizontal direction.
        {¶ 5} A second man, George Vanderwall, was later apprehended. He told
police that he and Goldfuss had entered Davidson’s property to steal power tools from
Davidson’s pole barn, but had been unsuccessful in attempting to break the lock on
the door using the crowbar.
        {¶ 6} On October 2, 1990, the decedent’s father, appellant and cross-appellee
Gregory L. Goldfuss, acting as administrator of his son’s estate (“administrator”),
initiated a wrongful death action against Davidson, seeking compensatory and
punitive damages. The complaint alleged that Davidson “negligently shot and killed
Gregory L. Goldfuss, Jr.” The complaint did not allege that Davidson had acted
willfully or wantonly.
        {¶ 7} Davidson filed an answer and denied the administrator’s assertions that
he had been negligent. In addition, Davidson asserted that the administrator was




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                                  January Term, 1997




“precluded from recovering as alleged in the Complaint due to the assumption of risk
and negligence of Gregory L. Goldfuss, Jr.” The answer did not assert that the
complaint failed to state a claim, nor did it assert an affirmative defense of privilege.
Similarly, the answer did not assert that Davidson owed no duty of care towards
Goldfuss, nor was the doctrine of primary assumption of risk otherwise raised at the
pleading stage.
        {¶ 8} The parties thereafter filed cross-motions for summary judgment on the
issue of liability. The administrator argued that Davidson had been negligent as a
matter of law when he fired his pistol killing Goldfuss; that Davidson had not shown
facts supporting an inference of contributory negligence on Goldfuss’s part; and that
Davidson was not entitled to any defense of justification in that “[o]ne is not justified
in using deadly force against a trespasser where there is no threat of bodily harm” and
in that “[t]he right of citizen’s arrest does not justify the use of deadly force.” The
administrator contended that, even if Davidson indeed had been justified in firing, he
nevertheless could be held liable if he were found to have been negligent in
performing a privileged act.
        {¶ 9} Davidson argued that Goldfuss was contributorily negligent in that he
voluntarily “assumed the risk of being shot as a matter of law” by engaging in criminal
conduct. He argued that the facts before the court required the conclusion that
Goldfuss’s assumption of the risk precluded his estate from any recovery.
        {¶ 10} The trial court denied both parties’ summary judgment motions, and
the case was tried to a jury. At the close of the evidence, the trial court overruled
motions for directed verdict filed by both parties.
        {¶ 11} The trial court then gave both counsel the opportunity to object to its
proposed instructions out of the presence of the jury, and to proffer their own proposed
instructions. Davidson did not object to the court’s proposal to instruct the jury that
the standard of care required of Davidson was ordinary care, nor did Davidson ask the
court to instruct the jury that the requisite standard of care was to refrain from willful




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                              SUPREME COURT OF OHIO




and wanton conduct. Similarly, Davidson did not request that the jury be instructed
on the doctrine of primary assumption of risk. Rather, Davidson’s counsel indicated
that the trial court’s proposed instruction on assumption of risk was “a hundred percent
correct.” Davidson did object to the court’s refusal to instruct the jury on the privilege
to use deadly force to prevent injury to oneself or one’s family (self-defense).
        {¶ 12} The trial court instructed the jury that the administrator bore the burden
of proving negligence in order to recover, defining “negligence” as “the failure to use
ordinary care to avoid injury or damage to another.” It defined “ordinary care” as
“that degree of care that a reasonably careful and prudent person would use under like
or similar circumstances.”      The court further charged the jury on the law of
comparative negligence and assumption of risk, proximate cause, damages, and on
the affirmative defense of privilege to defend one’s property.
        {¶ 13} The jury returned a general verdict for the administrator, in the amount
of $200,000. The jury found (1) that Davidson was negligent in discharging the
firearm that caused Goldfuss’s death, (2) that Goldfuss impliedly assumed the risk of
death, (3) that Goldfuss had been twenty-five percent contributorily negligent, and (4)
that Davidson had been seventy-five percent negligent. The trial court entered
judgment in conformance with the jury’s verdict in the amount of $150,000.
        {¶ 14} Davidson filed a motion for judgment notwithstanding the verdict or,
in the alternative, a new trial. He again contended that Goldfuss’s assumption of the
risk barred recovery in that “[r]easonable minds can only conclude that the assumption
of risk and comparable fault on the part of Goldfuss was greater than any negligence
on the part of Davidson in carelessly firing his gun.” Thereafter, Davidson filed a
supplemental brief in support of this motion in which he asserted, for the first time in
the case, that the doctrine of primary assumption of the risk completely barred
Goldfuss from recovery. The trial court denied Davidson’s motion.
        {¶ 15} In the court of appeals Davidson asserted that the trial court had erred
in denying his motions for summary judgment, directed verdict, and judgment




                                            4
                                  January Term, 1997




notwithstanding the verdict, and in directing a verdict against him on the issue of
justifiable self-defense.
        {¶ 16} The court of appeals held that the trial court should have instructed the
jury that Davidson’s conduct was compensable only if it found that his conduct had
been willful or wanton, and that Davidson had waived that error by not objecting to
the instruction on ordinary negligence.
        {¶ 17} Nevertheless, the court of appeals reversed the judgment and remanded
the cause based on its conclusion that application of the plain error doctrine was
necessary to prevent a miscarriage of justice. The court held that affirmance of the
judgment would have a “ ‘material adverse [e]ffect on the character and public
confidence in judicial proceedings.’ ” Quoting Schade v. Carnegie Body Co. (1982),

70 Ohio St.2d 207, 209

, 

24 O.O.3d 316, 317

, 

436 N.E.2d 1001, 1003

.
        {¶ 18} The court of appeals further held that the trial court did not err when it
refused to instruct the jury on the privilege of self-defense, agreeing with the trial court
that there was insufficient evidence to allow the jury to conclude that Davidson had a
bona fide belief that he or his family were in imminent danger of death or great bodily
harm.
        {¶ 19} The cause is now before this court upon the allowance of a
discretionary appeal and cross-appeal.
                                 __________________
        Don C. Iler Co., L.P.A., Don C. Iler and Nancy Iler, for appellant and
cross-appellee.
        Oldham & Dowling and William M. Oldham; Buckingham, Doolittle &
Burroughs, David P. Bertsch and David W. Hilkert, for appellee and cross-appellant.
                                 __________________
        MOYER, C.J.
        {¶ 20} The administrator argues, inter alia, that the court of appeals erred by
applying the plain error doctrine to reverse the judgment of the trial court. We concur,




                                             5
                              SUPREME COURT OF OHIO




and find our affirmance on that issue to be dispositive of the appeal presented by the
administrator.
        {¶ 21} This case was tried on the administrator’s theory that Davidson, as the
owner of property upon which Goldfuss entered as a trespasser, owed Goldfuss a duty
of ordinary care in exercising any privilege he might have had to protect his property,
even if Goldfuss entered the premises with the intent to commit theft offenses. At no
time did Davidson challenge the administrator’s theory of liability, nor did Davidson
assert in the trial court either that he owed no duty to Goldfuss or that the duty was
merely to refrain from willful or wanton conduct. Rather, as the court of appeals
acknowledged, Davidson made that assertion for the first time after trial. Throughout
the trial court proceedings, Davidson acquiesced in the administrator’s
characterization of the claim as one sounding in negligence, to which the defense of
comparative negligence was applicable.
        {¶ 22} At the conclusion of the charge to the jury, the trial court inquired of
counsel whether the court had “failed to state any portion of the law.” When counsel
for the administrator urged the court to further instruct on the element of
foreseeability, Davidson’s counsel objected, stating, “I think the charge was
adequately stated.” Only after the jury returned its verdict finding that Davidson was
seventy-five percent negligent in Goldfuss’s death and Goldfuss was only twenty-five
percent negligent did Davidson assert that the duty owed by Davidson to Goldfuss
was other than one of ordinary care. In short, Davidson did not suggest to the trial
court that its proposed instruction as to the requisite standard of care was erroneous at
a time when the alleged error could have been corrected, i.e., before the jury
commenced its deliberation.
        {¶ 23} Civ. R. 51(A) provides that “[o]n appeal, a party may not assign as
error the giving or the failure to give any instruction unless the party objects before
the jury retires to consider its verdict, stating specifically the matter objected to and
the grounds of the objection.” Similarly, we have long recognized, in civil as well as




                                           6
                                  January Term, 1997




criminal cases, that failure to timely advise a trial court of possible error, by objection
or otherwise, results in a waiver of the issue for purposes of appeal. See Gallagher v.
Cleveland Browns Football Co. (1996), 

74 Ohio St.3d 427, 436-437

, 

659 N.E.2d 1232, 1240

; Buchman v. Wayne Trace Local School Dist. Bd. of Edn. (1995), 

73 Ohio St.3d 260, 271

, 

652 N.E.2d 952, 961

; Villella v. Waikem Motors, Inc. (1989), 

45 Ohio St.3d 36, 40

, 

543 N.E.2d 464, 468-469

; State v. Awan (1986), 

22 Ohio St.3d 120

, 22
OBR 199, 

489 N.E.2d 277

; Snyder v. Stanford (1968), 

15 Ohio St.2d 31, 38

, 

44 O.O.2d 18, 22

, 

238 N.E.2d 563, 569

.
        {¶ 24} Although in criminal cases “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
the court,” Crim.R. 52(B), no analogous provision exists in the Rules of Civil
Procedure. The plain error doctrine originated as a criminal law concept. In applying
the doctrine of plain error in a civil case, reviewing courts must proceed with the
utmost caution, limiting the doctrine strictly to those extremely rare cases where
exceptional circumstances require its application to prevent a manifest miscarriage of
justice, and where the error complained of, if left uncorrected, would have a material
adverse effect on the character of, and public confidence in, judicial proceedings.
Schade, 

70 Ohio St.2d at 209

, 

24 O.O.3d at 317

, 

436 N.E.2d at 1003

; LeFort v.
Century 21-Maitland Realty Co. (1987), 

32 Ohio St.3d 121, 124

, 

512 N.E.2d 640, 643

; Cleveland Elec. Illum. Co. v. Astorhurst Land Co. (1985), 

18 Ohio St.3d 268, 275

, 18 OBR 322, 327-328, 

480 N.E.2d 794, 800

. The case at bar does not represent
this kind of exceptional case.
        {¶ 25} We recognize that appellate courts presented with cases in which they
believe error was committed may well be confronted with conflicting interests.
Reviewing courts desire to see justice done; they also appreciate the importance of
consistent application of procedural rules which promote expeditious and uniform
resolution of disputes in our adversary system of litigation.




                                            7
                               SUPREME COURT OF OHIO




        {¶ 26} While invocation of the plain error doctrine is often justified in order
to promote public confidence in the judicial process, “[it is doubtful that] the public’s
confidence in the jury system is undermined by requiring parties to live with the results
of errors that they invited, even if the errors go to ‘crucial matters.’ In fact, the idea
that parties must bear the cost of their own mistakes at trial is a central presupposition
of our adversarial system of justice.” Montalvo v. Lapez (1994), 

77 Hawaii 282, 305

,

884 P.2d 345, 368

 (Nakayama, J., concurring in part and dissenting in part).
Moreover, the determination of a miscarriage of justice is often subjective. Litigants
whose cases have been thwarted by statutes of limitations or whose appeals have been
dismissed for failure to timely file a notice of appeal may believe they have suffered
a miscarriage of justice. Nevertheless, it is well established that failure to follow
procedural rules can result in forfeiture of rights.
        {¶ 27} Parties in civil litigation choose their own counsel who, in turn, choose
their theories of prosecuting and defending. The parties, through their attorneys, bear
responsibility for framing the issues and for putting both the trial court and their
opponents on notice of the issues they deem appropriate for jury resolution. See
Gallagher, 

74 Ohio St.3d at 433

 and 436, 

659 N.E.2d at 1238

 and 1239-1240. An
unsuccessful civil litigant may not obtain a new trial based upon the bare assertion
that his or her attorney was ineffective. To so hold would unfairly shift the loss caused
by poor strategy decisions, miscalculations, or errors from the party responsible to the
innocent opponent. See Roth v. Roth (1989), 

65 Ohio App.3d 768, 776

, 

585 N.E.2d 482, 487

. See, also, Deppe v. Tripp (C.A.7, 1988), 

863 F.2d 1356, 1361

 (“Requiring
a nonerring party to bear the burden of his opponent’s errors may not be reasonable in
many circumstances and in fact may [itself] constitute a miscarriage of justice.”). If
an attorney’s representation has fallen below professional standards, remedies are
available in a malpractice action. Roth, 

65 Ohio App.3d at 776

, 

585 N.E.2d at 487

;
GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 

47 Ohio St.2d 146, 152

, 

1 O.O.3d 86, 89

, 

351 N.E.2d 113, 117

.




                                            8
                                  January Term, 1997




         {¶ 28} We do not hold that application of the plain error doctrine may never
be appropriate in civil cases. However, we do reaffirm and emphasize that the
doctrine is sharply limited to the extremely rare case involving exceptional
circumstances where the error, left unobjected to at the trial court, rises to the level of
challenging the legitimacy of the underlying judicial process itself.
         {¶ 29} Exceptions to the requirements of Civ.R. 51(A) should be granted
“only in circumstances where the error has seriously affected the basic fairness,
integrity, or public reputation of the judicial process.” Yungwirth v. McAvoy (1972),

32 Ohio St.2d 285, 288

, 

61 O.O.2d 504, 505-506

, 

291 N.E.2d 739, 741

. The plain
error doctrine should never be applied to reverse a civil judgment simply because a
reviewing court disagrees with the result obtained in the trial court, or to allow
litigation of issues which could easily have been raised and determined in the initial
trial.
         {¶ 30} We therefore hold that in appeals of civil cases, the plain error doctrine
is not favored and may be applied only in the extremely rare case involving
exceptional circumstances where error, to which no objection was made at the trial
court, seriously affects the basic fairness, integrity, or public reputation of the judicial
process, thereby challenging the legitimacy of the underlying judicial process itself.
         {¶ 31} Because we find the plain error doctrine to be inapplicable in this case,
it is unnecessary for us to determine whether the court of appeals was correct in
holding that the administrator should have been held to the burden of proving that
Davidson acted willfully or wantonly to cause the death of Goldfuss in order to
establish a prima facie case.
         {¶ 32} Having concluded that the court of appeals should not have reversed
the judgment of the trial court based on application of the plain error doctrine, we
consider next the issues raised by Davidson in the cross-appeal.
         {¶ 33} Davidson first argues that public policy precludes recovery for injuries
sustained in the commission of a felony. We reject this proposition.




                                             9
                               SUPREME COURT OF OHIO




        {¶ 34} The law should not encourage vigilantism. This court has recognized
that an owner of property acting in good faith is justified in using as much force as is
reasonably necessary to protect his or her property against one who is feloniously
attempting to steal it. We have, however, further recognized the well-established rule
that a plaintiff injured by the actions of private citizens may be entitled to recover even
if that plaintiff was engaged in criminal activity at the time of his injury, if the force
used exceeded that which was reasonable and necessary to repel and prevent the
felony. Allison v. Fiscus (1951), 

156 Ohio St. 120

, 

45 O.O. 128

, 

100 N.E.2d 237

, at
paragraphs one, four and five of the syllabus.
        {¶ 35} Indeed, in Allison this court was confronted with the argument now
presented by Davidson that “because of plaintiff’s unlawful conduct he is not entitled
to recover any damages against defendant.” Id. at 123, 45 O.O. at 130, 100 N.E.2d at
239. The argument was rejected in Allison, despite recognition by this court that the
plaintiff “was engaged in the commission of a felony, punishable by imprisonment in
the penitentiary, in breaking and entering a man’s building where valuable property
was stored in order that he, plaintiff, might steal it.” Id. at 128, 45 O.O. at 132, 100
N.E.2d at 241. See, also, Annotation, Civil Liability for Use of Firearm in Defense of
Habitation or Property (1965), 

100 A.L.R.2d 1021

, 1038. We are not convinced that
this established precedent should be changed.
        {¶ 36} Davidson’s second proposition of law suggests that a finding of
assumption of risk precludes a claim for willful or wanton misconduct. That
proposition is not properly before this court because the jury in this case was never
presented with a claim that Davidson had acted willfully or wantonly.
        {¶ 37} In his third proposition of law Davidson argues that a homeowner is
justified in using deadly force to protect family or property against an intruder who is
trespassing to commit a felony. Davidson thereby asserts the existence of privilege,
an affirmative defense. A privileged act is one which ordinarily would be tortious but
which, under the circumstances, does not subject the actor to liability. 1 Restatement




                                            10
                                January Term, 1997




of the Law 2d (1965), Section 10(1); Prosser & Keeton, The Law of Torts (5 Ed.1984)
108-109, Section 16.
       {¶ 38} We agree with the trial court and the court of appeals that Davidson
was not entitled to an instruction on the affirmative defense of self-defense. We
recognize that a defendant may be relieved of liability for tortious conduct by proving
that such conduct was in self-defense. 1 Restatement of Torts, supra, Section 63 et
seq.; see, also, Skinner v. Brooks (1944), 

74 Ohio App. 288, 292

, 

29 O.O. 437, 438

,

58 N.E.2d 697, 698

 (burden of proving affirmative defense is on defendant).
However, a trial court need not instruct the jury where there is insufficient evidence
to support an issue. In reviewing a record to ascertain whether sufficient evidence
exists to support the giving of an instruction, an appellate court should determine
whether the record contains evidence from which reasonable minds might reach the
conclusion sought by the instruction. Murphy v. Carrollton Mfg. Co. (1991), 

61 Ohio St.3d 585, 591

, 

575 N.E.2d 828, 832

.
       {¶ 39} Where a defendant has used deadly force, the defense of self-defense
requires the defendant to prove that he reasonably believed that he was in danger of
death or serious bodily harm and could prevent that harm only by the immediate use
of deadly force. 1 Restatement of Torts, supra, Section 65(1).
       {¶ 40} The court of appeals found insufficient evidence in the record from
which a jury could reasonably conclude that Davidson had a bona fide belief that he
or his family were in imminent danger of death or great bodily harm. Both Davidson
and his family were inside the house with all the doors locked while Goldfuss and
Vanderwall were at least one hundred feet away when first observed at the pole barn.
The evidence did not warrant an instruction on self-defense.
       {¶ 41} The court did charge the jury on the privilege of defense of property,
as follows: “[A] landowner may use such force as is reasonably necessary in defense
of his property. A trespasser who intends to steal and is about to enter a building to
commit a theft is not entitled to any affirmative notice warning him that the landowner




                                          11
                               SUPREME COURT OF OHIO




may use reasonable force to prevent the theft and the trespasser assumes that risk. The
landowner may use such force as he in good faith reasonably believes will be
necessary to prevent the theft and repel the trespasser. The landowner’s right to use
reasonable force extends only to the right to prevent the theft; that is, once the threat
of the theft ceases, the right to use reasonable force to prevent the theft also ceases.
        “Now to determine whether the defendant’s use of force by discharging a
firearm was reasonably necessary to prevent the theft of his property, you must put
yourselves in his position, with his knowledge or lack of knowledge of the
circumstances that surrounded him at the time of the shooting. And you must consider
the conduct of the decedent and determine whether his acts caused the defendant to
reasonably believe that such force was necessary to prevent the decedent from stealing
his property.”
        {¶ 42} We find no error prejudicial to Davidson in this instruction.
        {¶ 43} Finally, any issues pertaining to the doctrine of primary assumption of
risk were not timely raised by Davidson in this case. In Gallagher v. Cleveland
Browns Football Co., supra, 

74 Ohio St.3d 427

, 

659 N.E.2d 1232

, we stated, as
syllabus law, that “[f]ailure 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.” Because the doctrine of primary assumption
of risk was first raised in this case, as in Gallagher, in a motion for judgment
notwithstanding the verdict, the law established in Gallagher precludes further
consideration of that doctrine in this case.
        {¶ 44} The judgment of the court of appeals is reversed, and the cause is
remanded for entry of judgment in accordance with the jury verdict.
                                                                      Judgment reversed
                                                                   and cause remanded.
        F.E. SWEENEY and PFEIFER, JJ., concur.
        DOUGLAS and RESNICK, JJ., concur in judgment only.




                                            12
                                 January Term, 1997




        COOK, J., separately concurs in judgment only.
        LUNDBERG STRATTON, J., concurs in part and in the syllabus, and dissents in
part.
                                __________________
        COOK, J., concurring in judgment only.
        {¶ 45} Because I believe that the plain error doctrine should be held wholly
inapplicable to civil cases, I concur in judgment only.
        {¶ 46} Civ.R. 51(A) and Crim.R. 30(A) are identically worded. Both
procedural rules bar a party from appealing as error jury instructions that were not
objected to in a timely manner at trial. The Rules of Criminal Procedure provide a
“plain error” exception that is applicable in the Crim.R. 30(A) setting. Crim.R.
52(B). A similar exception to Civ.R. 51(A) is not provided. The omission is not
an oversight and there is no need for courts to recognize a judicial exception.
        {¶ 47} Each of our cases recognizing narrow application of the plain error
doctrine to defeat Civ.R. 51(A) contemplates situations where error that was not
objected to at trial affects the legitimacy of the underlying judicial process. In light
of the remedies available to a civil litigant, however, recognition of plain error is
not necessary to preserve the integrity of the judicial process.
        {¶ 48} As noted by the majority, a civil litigant should not have two chances
to defeat his opponent at trial because the counsel that he originally employed was
ineffective. Unlike a criminal defendant, a civil litigant has no constitutional right
to the effective assistance of counsel. See, e.g., Lavado v. Keohane (C.A.6, 1993),

992 F.2d 601, 605-606

; Friedman v. Arizona (C.A.9, 1990), 

912 F.2d 328

, 333.
Accordingly, an unsuccessful civil litigant whose attorney has fallen below the
professional standard of representation may recover losses caused by the deficiency
in an action for legal malpractice against his attorney, but has no right to subject
the opposing party to a new trial. See Verbanic v. Verbanic (1994), 

70 Ohio St.3d 41, 46

, 

635 N.E.2d 1260, 1264

 (Wright, J., dissenting).




                                          13
                             SUPREME COURT OF OHIO




       {¶ 49} Having removed the deficient performance of the unsuccessful
party’s attorney as a reason to recognize plain error as an exception to Civ.R. 51(A),
the “exceptional circumstances” that “challeng[e] the legitimacy of the underlying
judicial process itself” contemplated by the majority must relate to factors or
influences outside the control of that party’s attorney. Civ.R. 59, however, answers
this concern.
       {¶ 50} Civ.R. 59(A) permits a court to grant a new trial on several grounds,
including “[i]rregularity in the proceedings of the court, jury, magistrate, or
prevailing party, or any order of the court or magistrate, or abuse of discretion, by
which an aggrieved party was prevented from having a fair trial”; “[m]isconduct of
the * * * prevailing party”; “[a]ccident or surprise which ordinary prudence could
not have guarded against[.]” Civ.R. 59(A) also contains a catchall provision
authorizing trial courts to grant a new trial for “good cause shown.” Accordingly,
if the reason for counsel’s failure to object to error may be attributed to a cause
other than deficient performance, that cause may be addressed and reviewed
pursuant to Civ.R. 59.
       {¶ 51} Quite simply, Civ.R. 51(A) and Crim.R. 30(A) deal with waiver
occasioned by failure of counsel to object to error at an appropriate time. The plain
error doctrine of Crim.R. 52(B) is consonant with the criminal law, which, in certain
circumstances, requires the state to endure a second trial because of errors
committed by a criminal defendant’s counsel. The doctrine, however, is discordant
with civil law, which binds a party to his counsel’s acts and omissions rather than
visiting the sins of that party’s counsel on the opponent. Link v. Wabash RR. Co.
(1962), 

370 U.S. 626, 634

, 

82 S.Ct. 1386, 1390

, 

8 L.Ed.2d 734, 740, fn. 10

. This
court has mistakenly imported the concept of plain error into the civil setting despite
its omission from the Civil Rules and its fundamental inapplicability to the civil
judicial process. I would take this opportunity to correct that mistake.
                               __________________




                                          14
                                January Term, 1997




        LUNDBERG STRATTON, J., concurring in part and in the syllabus, and
dissenting in part.
        {¶ 52} I concur that the syllabus is a correct statement of the law. However,
I believe that the issue of primary assumption of risk was sufficiently raised by the
appellee and preserved for appeal. I also dissent from the majority’s conclusion
that public policy allows recovery under certain conditions for injuries sustained by
one committing a felony.
        {¶ 53} I believe the time has come for this court to reexamine its position
on the doctrine of primary or express assumption of the risk in order to preclude
recovery by one who is injured while engaging in criminal activity. In this case,
although the result was tragic, the plaintiff was clearly engaging in a criminal act
at the time of his demise. Therefore, he assumed the risk of his own death by his
choice of activities.
        {¶ 54} Some confusion still exists over what is meant by “assumption of
risk.” Although implied assumption of risk and contributory negligence have
merged into comparative negligence, this merger did not include primary and
express assumption of risk. Each remains a separate defense and a complete bar to
recovery. Anderson v. Ceccardi (1983), 

6 Ohio St.3d 110, 114

, 6 OBR 170, 174,

451 N.E.2d 780, 783-784

. Primary assumption of risk is generally applied in cases
where there is a lack of duty owed by the defendant to the plaintiff. A typical
example of primary assumption of risk is in baseball cases where a plaintiff is
injured when a baseball is hit into the stands:
        “This standard was stated in dicta in the case of Cincinnati Baseball Club
Co. v. Eno (1925), 

112 Ohio St. 175, 180-181

 [

147 N.E. 86, 87

], as follows:
        “ ‘The consensus of * * * opinions is to the effect that it 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




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                              SUPREME COURT OF OHIO




assume the risk thereof.’ ” Anderson, 

6 Ohio St.3d at 114

, 6 OBR at 174, 

451 N.E.2d at 784

.
        {¶ 55} Primary assumption of risk arose in another sports-related case,
Gallagher v. Cleveland Browns Football Co. (1996), 

74 Ohio St.3d 427

, 

659 N.E.2d 1232

, where a videographer kneeling in an area near the end zone was
injured by a football player attempting to catch a pass. This court again relied on
Cincinnati Baseball Club Co. v. Eno:
        “Eno demonstrates that only those risks directly associated 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.” (Emphasis added.) 

Id. at 432

, 

659 N.E.2d at 1237

.
        {¶ 56} Thus, a person who attends a sports function knows there are
attendant risks and hazards associated with the sport. He assumes those risks and
cannot hold a third person liable for his resultant injuries.
        {¶ 57} The defense of “lack of duty” or “no duty” arises because of the
assumption of the risk. One who reasonably and voluntarily exposes himself or
herself to an obvious or known danger, who reasonably chooses to proceed in the
face of a known risk, is deemed to have relieved defendant of any duty to protect
him or her. Siglow v. Smart (1987), 

43 Ohio App.3d 55, 59

, 

539 N.E.2d 636, 640

;
Mima v. Akron (1986), 

31 Ohio App.3d 124, 125

, 31 OBR 211, 212, 

508 N.E.2d 974, 975

.
        {¶ 58} In Siglow, the plaintiff responded to a call for help from a neighbor
whose house had been broken into. The Good Samaritan plaintiff was injured in
the course of apprehending the burglar. In Siglow, the court likened primary
assumption of risk to express assumption of risk which involves oral or written
consent to a risk as in a contract situation:




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                                January Term, 1997




       “Reasonable assumption of risk, entailing a reasonable and voluntary
exposure to an obvious or known danger, sounds in waiver and consent — not fault.
* * * This type of assumption of risk, wherein one reasonably waives or otherwise
relieves another of liability for injuries which might result from patently dangerous
conduct or activities, is conceptually equivalent to express assumption of risk.
       “The rationale behind the distinction made in the treatment of reasonable
and unreasonable conduct in assuming a risk is that an individual should be fully
responsible for his conscious, knowledgeable choices, whereas responsibility
should be shared where negligence is demonstrated as to both parties. This
reasoning supports a conclusion that reasonable assumption of risk should be
retained as a complete bar to recovery.” Id. at 59, 

539 N.E.2d at 640

.
       {¶ 59} The application of primary assumption of risk to a person who is
injured while engaging in criminal activity is even more convincing than in the
sports-related cases. The person knows that the activity is criminal and that such
activity creates a risk of injury or death from others attempting to protect
themselves or their property or intervening to stop the illegal activity. Persons
committing crimes reasonably and voluntarily expose themselves to dangers
inherent in such activity and assume the risk. The consequences should fall on the
shoulders of the person committing the crime. One engaging in criminal acts
should not receive a greater level of protection than one attending a sporting event.
Nor should anyone be held to a duty to protect criminals from the folly of their own
actions. Primary assumption of risk, better characterized as express assumption of
risk as described by the Siglow court, should operate as a complete bar to recovery.
       {¶ 60} I am reluctant to go so far as to say that anyone who encounters a
person committing a crime has no duty whatsoever. Those who act unjustifiably
or who use excessive force may be held criminally liable for their own actions.
There are adequate criminal sanctions available to punish those who use excessive
force or who engage in unwarranted behavior or vigilantism. Criminal charges for




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                             SUPREME COURT OF OHIO




assault may be filed to hold accountable those who use excessive force beyond that
necessary for self-defense or defense of one’s property. But persons injured in the
course of committing a crime should be held accountable for their own conduct.
They should not be entitled to be compensated for civil injuries. I agree with the
holding of Allison v. Fiscus (1951), 

156 Ohio St. 120

, 

45 O.O. 128

, 

100 N.E.2d 237

(in which the defendant set a trap which injured an intruder), to the extent that it
endorses the imposition of criminal liability upon a person who uses excessive force
in protecting his or her property. However, I do not agree with Allison that civil
liability should be imposed in such a case.
       {¶ 61} The majority rejects the public policy argument that one should not
recover for injuries sustained in committing a felony, finding that such a rule of law
may encourage vigilantism. However, those who take steps to defend person or
property bear the risk of liability if they mistakenly believe that another is
committing a crime or if they harm an innocent person. The defense of primary or
express assumption of risk is not available in such cases and liability may lie.
       {¶ 62} However, individuals committing a crime bear all the risks of
personal injury that flow from their criminal activity. A person should be fully
responsible for his or her conscious, knowledgeable choices. Siglow, 

43 Ohio App.3d at 59

, 

539 N.E.2d at 641

. This includes the decision to participate in
criminal conduct and the inherent risks associated with such conduct, including the
risk of injury. It shocks the conscience of a civilized nation that a criminal can
recover large damage awards for an injury incurred while committing a crime. Not
every wrong is deserving of a legal remedy. See Heiner v. Moretuzzo (1995), 

73 Ohio St.3d 80, 88

, 

652 N.E.2d 664, 670

.
       {¶ 63} The law already places the risk of harm or injury that may occur to
others upon a participant in a criminal activity. An accomplice to a crime is liable
for injury or death to a victim caused by his or her partner, even though there was
no intent to cause injury or death to the victim. One found guilty of complicity in




                                         18
                                     January Term, 1997




the commission of a crime is punished as if he or she were a principal offender.
R.C. 2923.03(F).        Aiders and abettors may be charged as principals in the
commission of an offense and those who engage in a common enterprise are each
responsible for the acts of the others who pursue the common enterprise even if the
person injured or killed is the co-defendant. State v. Ullner (1957), 

105 Ohio App. 546

, 

6 O.O.2d 262

, 

143 N.E.2d 849

, affirmed sub nom. State v. Kidd (1958), 

167 Ohio St. 521

, 

5 O.O.2d 202

, 

150 N.E.2d 413

. Likewise, the responsibility for one’s
own injury or death resulting from one’s illegal activity should rest upon a similar
theory that the risks of serious or fatal consequences fall upon the shoulders of those
committing criminal acts
         {¶ 64} Davidson did assert the affirmative defense of assumption of the risk
in general terms in his answer. This is sufficient notice pleading. Gallagher, 

74 Ohio St.3d at 433

, 

659 N.E.2d at 1238, fn. 3

.                   Although Davidson pleaded
alternative theories of defense, he continued to pursue a theory of primary (or
express) assumption of risk at trial, and in his motion for summary judgment,
proposed jury instructions, and motion for judgment notwithstanding the verdict.1
This was sufficient under the standards of Gallagher to raise the defense and to
preserve the issue. I do not agree with the majority that Davidson waived the
defense.




1. Although Davidson identified “implied” assumption of risk in his proposed jury instruction, the
instruction clearly described primary or express assumption of risk:
          “Assumption of risk can apply if the actions of the decedent were entered into knowingly
and voluntarily. Assumption of risk applies when the danger to the decedent that he may be shot at
and killed is so obvious that the decedent is presumed to have assumed this outcome as a known
risk when he attempted to enter the Defendant’s property to commit the felony of robbery. * * *
          “Defendant alleges that this specific assumption of risk took place (1) when decedent
entered the property of Defendant intending to commit a robbery and (2) when decedent continued
to flee after the first warning shot was fired by the Defendant in an attempt to get the decedent to
stop so he could be arrested.”
          I believe this language is sufficient to preserve the issue.




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                            SUPREME COURT OF OHIO




       {¶ 65} I believe it is time to reexamine this issue. We should extend the
doctrine of primary or express assumption of risk to injuries incurred by a person
committing a criminal act. Therefore, I respectfully dissent.
                              __________________




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