experienced swimmer and diver, who was aware of danger of diving into five feet of water from a platform and who had successfully executed previous dives off the platform, could not recover for injuries sustained in diving accident
How later courts described this case
- experienced swimmer and diver, who was aware of danger of diving into five feet of water from a platform and who had successfully executed previous dives off the platform, could not recover for injuries sustained in diving accident
- both summary judgment and directed verdict are rendered only when, after construing evidence in favor of non-movant, reasonable minds can come to but one conclusion
Written by the judges who cited it.
The opinion
William B. Brown, J.,
dissenting. As a matter of substantive tort law, one cannot assume the risk of an unknown defect. 8 The trial court conclusion that plaintiff assumed certain risks, cannot, in principle, apply to such unknown defects.
Since defendants only moved for summary judgment on the basis of assumption of the risk, and did not move that plaintiffs claim did not include a genuine issue as to the existence of latent defects, plaintiff had no obligation under Civ. R. 56(E) to show that there was a genuine issue as to the existence of latent defects. As such, the trial judge had no authority to dismiss plaintiffs claim for failure to prove an element of the claim.
“Assumption of the risk requires three elements: One must have full knowledge of a condition; such condition must be patently dangerous to him; and he must voluntarily expose himself to the hazard created.” Briere v. Lathrop Co. (1970), 22 Ohio St. 2d 166, 174-175 .