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Sun Ins.9/21/1994
n this case was a `dangerous instrumentality.' A dangerous instrumentality is one which presents a danger of injury by its very nature, not because of any defect in it. If you find that the heat gun used by the Defendant in this case was a dangerous instrumentality, then the Defendant was required to observe the utmost care in its use, and was bound to take exceptional precautions to prevent damage from being done by it.
"If you find that the Defendant failed to observe the utmost care or take exceptional precautions in using a dangerous instrumentality, then you will find that the Defendant failed to exercise ordinary care and was negligent."
Under the terms of the proposed instruction, the jury would have been called upon to decide the issue of whether the heat gun was, as a matter of fact, a dangerous instrumentality. That question, being instead one of law, was solely for the court to decide. See Drake v. Koesters (Sept. 20, 1981), Hamilton App. No. C-800572, unreported, 1981 WL 10017. Because in this respect the proposed instruction did not contain an accurate statement of the law, we cannot say that the trial court's refusal to give it was improper. See Gallimore v. Children's Hosp. Med. Ctr. (Feb. 26, 1992), Hamilton App. No. C-890808, unreported, 1992 WL 37742, affirmed (1993), 67 Ohio St.3d 244, 617 N.E.2d 1052. The second assignment of error is, accordingly, not well taken.
Because our disposition of the first assignment of error requires a new trial in this case, we need not address plaintiff s third assignment of error, that the trial court erred by overruling plaintiff s motion for judgment notwithstanding the verdict or for a new trial. See App.R. 12(A)(1)(c).
The judgment of the trial court is reversed and the cause is remanded for further proceedings not inconsistent with this decision.
Judgment reversed and cause remanded.
DOAN, P.J., KLUSMEIER and HILDEBRANDT, JJ., concur.
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