Hawkins v. Ivy

Paul W. Brown, J.,

dissenting. In Kellerman v. J. S. Durig Co. (1964), 176 Ohio St. 320 , this court reversed the order of the Court of Appeals for Trumbull County affirming the trial court’s directed verdict for the defendant. That verdict was grounded upon the trial court’s finding at the close of the plaintiff’s evidence in chief that plaintiff’s conduct violated R. C. 4511.21 (assured-clear-distance-ahead statute) and hence amounted to contributory negligence as a matter of law, precluding recovery under the holding in Smiley v. Arrow Spring Bed Co. (1941), 138 Ohio St. 81 . This finding was a proper one under a long line of cases which were factually identical. Kellerman, supra, differed from this line of cases only in that the plaintiff had included in his complaint an allegation of “wanton misconduct” as a characterization of defendant’s conduct almost identical with that of the defendants in all the preceding cases.

The Kellerman case was an invitation to the court to consider the doctrine of comparative negligence. Judge Zimmerman for the majority chose not to do so, but chose rather to conclude that the conduct described as “wanton,” if found to exist, showed a “disposition to perversity” and “a reckless and inexcusable disregard of the rights and protection of others,” and required the submission of the case to the jury. In detailing the ingredients of “wanton misconduct,” Judge Zimmerman stated in paragraph three of the syllabus that such conduct consisted of “a failure to exercise any care toward those to whom a duty of care was owing when the probability that harm would result from such failure was great and such probability was actually known, or in the circumstances ought to have been known, to the defendant.” (Emphasis added.) In such a state of awareness, nonaction thus was described as a “disposition to perversity” — another degree of negligence.

In the instant case, unlike Kellerman , there was no foe tual basis whatsoever for imputing “actual knowledge” to the defendant, and the appellant’s brief and argument, in recognition of this, asserted that the time had corn judicial recognition of the doetrine of comparative negligence and for the revocation of the defense of contribu *120 tory negligence. Kellerman was renounced by appellant who described the concept of “wanton misconduct” as “at best, a half announced and hesitant acknowledgment of the doctrine of comparative negligence.” Reference was made to Prosser on Torts 426, Section 65.

Since substantially all of the automobile cases cited in the majority opinion as following Universal Concrete Pipe Co. v. Bassett (1936), 130 Ohio St. 567 , and as containing as a definition of wanton misconduct the words “disposition to perversity,” were guest statute cases, the recent demise of that statute at this court’s hands leads me to conclude that further struggles to define this other type of negligence are counterproductive. This is especially so since R. C. 4511.21 is the well-defined legislative public policy of the state of Ohio.

I would hold that the violation of R. C. 4511.21 by the plaintiff was contributory negligence as a matter of law and was a defense to the plaintiff’s action. :