The opinion
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William B. Hoffman, Presiding Judge,
concurring in part.
I concur in the majority’s opinion as to its analysis and disposition of appellants’ first, third, fourth, and fifth assignments of error.
I further concur in the analysis and disposition reached by the majority concerning the appellants’ second assignment of error, which holds that the trial court did not err in refusing to instruct the jury regarding R.C. 5579.04, as requested. Appellants’ proposed jury instruction sought to establish liability on the part of the appellee for breach of its duty under R.C. 5579.04 as an independent basis for liability. The majority correctly concludes such an instruction would be improper based on R.C. 2744.02(B)(5). I write separately only to note that I believe it would be proper to instruct the jury that if it found that the appellee breached its duty under R.C. 5579.04, that breach may be considered as evidence in determining whether the appellee breached its specific duty under R.C. 2744.02(B)(3).