# Benjamin v. Deffet Rentals, Inc.

> Ohio Supreme Court · April 22, 1981 · 66 Ohio St. 2d 86

URL: https://www.frixlaw.com/law-library/cases/6757172

## Case

- **Full name:** Benjamin v. Deffet Rentals, Inc.
- **Court:** Ohio Supreme Court
- **Decided:** April 22, 1981
- **Citations:** 66 Ohio St. 2d 86; 20 Ohio Op. 3d 71; 419 N.E.2d 883; 1981 Ohio LEXIS 478
- **Precedential status:** Published
- **Opinion:** Dissent by Brown
- **Judges:** Brown, Celebrezze, Concdr, Fifth, Holmes, Locher, Rutherford, Sweeney
- **Cited by:** 64 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6757172

## Opinion text

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 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6757172. Public record. Not legal advice.