 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Chaney v. Eason12/24/1997
m an emergency situation with Shawn Chaney hanging onto her vehicle was not the proximate cause of Chaney's death. In a negligence action, the so-called emergency doctrine applies where there has been a sudden and unexpected occurrence of a transitory nature which demanded immediate action without time for reflection or deliberation and does not comprehend a static condition which lasted over a period of time. Miller v. McAllister (1959), 169 Ohio St. 487. For the following reasons, we believe the emergency doctrine, relieves Davilyn Eason of liability.
In the case sub judice, Eason, upon exiting the store, was approached by a friend who needed a ride. After both individuals entered Eason's vehicle, they were confronted by Shawn Chaney, a large male, who demanded that Eason not move her vehicle. Eason was then informed that Chaney, who she did not know, had a gun. In response to Chaney's demand, Eason, who did not have time to reflect on the situation at hand, immediately began to flee.
Appellees further argue that Eason should be relieved of liability for Chaney's death because Chaney assumed the risk of serious injury or death when he approached Eason's vehicle in a threatening manner, grabbed hold of the steering wheel and failed to let go. We agree.
Although Ohio has adopted a system of comparative negligence, the defense of assumption of the risk still exists to bar recovery by a plaintiff who has consented to encounter a known risk. Amans, supra. Assumption of the risk as a defense to negligence survives in two forms; 1) express assumption of risk, that which is contractual, and 2) primary assumption of risk, meaning that no duty was owed by the defendant to protect the plaintiff from specific risk because the risk encountered is so directly associated with the activity in question that it creates no jury issue to be decided. Id. citing Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427, 431.
As previously determined, the emergency situation created when Shawn Chaney approached Eason's vehicle in a confrontational manner demanding that Eason not move her vehicle, as well as the belief that Chaney might be carrying a gun, relieved Eason of any duty which she may have owed Chaney at that time. Eason is further relieved of liability in that Chaney should have appreciated the risk directly associated with approaching a vehicle in a threatening manner which would lead the occupants to believe they were going to be robbed or in some way harmed. Clearly, Chaney would have known that in such a situation, the occupants of the vehicle would try to get away from him. Thus, Chaney voluntarily assumed the risk that he might in some way be seriously injured when he approached and threatened Eason. Accordingly, no jury issue has been created and appellant's sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellees recover of appellant their costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
JAMES M. PORTER, P.J.
JOHN T. PATTON, JUDGE
LEO M. SPELLACY, JUDGE
|