Later courts went against this
Overruled by Wilfong v. Batdorf, 6 Ohio St. 3d 100 (1983)
Today we reject those holdings and hereby overrule Viers v. Dunlap and Straub v. Voss, supra.
The opinion
Clifford F. Brown, J.
dissenting. The instant appeal raises two issues. The first, and only one reached by the majority, is whether R.C. 2315.19, which establishes the principle of comparative negligence in Ohio, should apply to actions arising before, but tried after the effective date of that statute. The second issue, which the majority does not reach, is whether the adoption of the comparative negligence statute abrogated the defense of implied assumption of risk.
In Viers v. Dunlap (1982), 1 Ohio St. 3d 173 , dissenting opinion at 179,1 concluded that the comparative negligence statute properly applies to cases such as this, tried after the effective date of R.C. 2315.19. Accordingly, I dissent from the majority holding that the principle of comparative negligence does not apply to the parties in this case.
Although declining to do so in this case, this court has previously recognized the need to reevaluate application of the defense of assumption of risk in light of the adoption of the comparative negligence statute. Benjamin v. Deffett Rentals (1981), 66 Ohio St. 2d 86 [ 20 O.O.3d 7 ,] at 90 fn. 5. My analysis of the overlap between implied assumption of risk and contributory negligence convinces me that R.C. 2315.19 did abrogate the defense of implied assump *184 tion of risk, thereby permitting partial recovery even when assumption of risk is implied. This position accords with the large and growing number of enlightened jurisdictions which have judicially merged assumption of risk into the framework of negligence and contributory negligence following enactment of comparative negligence statutes by the respective state legislatures. See Farley v. M.M. Cattle Co. (Tex. 1975), 529 S.W. 2d 751 ; Springrose v. Willmore (1971), 292 Minn. 23 , 192 N.W. 2d 826 ; Gilson v. Drees Brothers (1963) 19 Wis. 2d 252 , 120 N.W. 2d 63 ; Brittain v. Booth (Wyo. 1979), 601 P. 2d 532 ; Kopischke v. First Continental Corp. (Mont. 1980), 610 P. 2d 668 ; Lyons v. Redding Constr. Co. (1973), 83 Wash. 2d 86 , 515 P. 2d 821 ; Wilson v. Gordon (Me. 1976), 354 A. 2d 398 .
. Finding the jury instruction to be incomplete and therefore prejudicial because it failed to consider the possibility of partial recovery, I would reverse the lower courts and remand the cause for a new trial.
Celebrezze, C.J., and Sweeney, J., concur in the foregoing dissenting opinion.