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LaPlaca v. Brunswick Ambassador Lanes12/12/1988
tely barred his right to recovery. In 1980, Ohio enacted a comparative negligence statute, R.C. 2315.19. At the time the cause of action accrued, this statute provided in part:
"(A)(1) In negligence actions, the contributory negligence of a person does not bar the person or his legal representative from recovering damages that have directly and proximately resulted from the negligence of one or more other persons, if the contributory negligence of the person bringing the action was no greater than the combined negligence of all other persons from whom recovery is sought. However, any damages recoverable by the person bringing the action shall be diminished by an amount that is proportionately equal to the percentage of negligence, which percentage is determined pursuant to division (B) of this section. * * *" See 138 Ohio Laws, Part I, 594-595.
Thus, Sidle is not applicable here.
Therefore, questions of material fact include whether appellee maintained its business premises in a reasonably safe manner; were its customers unnecessarily or unreasonably exposed to danger, and did appellee know of the danger and, hence, have a duty to warn its customers?
LaPlaca has raised sufficient questions to require resolution by the finders of fact. Accordingly, the judgment is reversed and the cause is remanded.
Judgment accordingly.
PARRINO, J., concurs.
NAHRA, J., concurs separately.
THOMAS J. PARRINO, J., of the Eighth Appellate District, sitting by assignment.
NAHRA, Judge, concurring.
I concur on the basis that a genuine issue of material fact exists as to whether appellant was aware of the potential risk based on appellant's affidavit testimony. However, it is still incumbent upon appellant to establish negligence on appellee's part.
I do not agree that Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589, is no longer applicable in light of the enactment of R.C.
2315.19. See, e.g., Beynon v. K-Mart Corp. (C.A.6, 1988), 839 F.2d 283; Lopatkovich v. Tiffin (1986), 28 Ohio St.3d 204, 28 OBR 290, 503 N.E.2d 154 Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 18 OBR 267 480 N.E.2d 474; Frajt v. Goodwill Industries of Greater Cleveland (1986), 33 Ohio App.3d 92, 514 N.E.2d 719. Sidle is simply inapplicable to the facts of the instant case because the danger herein was not obvious and apparent.
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