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Zigler v. AVCO Corp.11/18/2005
f risk situations, "the risk is not created by the defendant's negligence, but by the nature of the activity * * *." Ferguson v. Cincinnati Gas & Electric Co. (1990), 69 Ohio App.3d 460, 462. Appellant's expert witness, a professional engineer, testified at deposition that the corn picker "is inherently dangerous by function." Corn picking machines by definition will always be dangerous and operators will always be warned to turn off the power source before attempting to remove a clog. Appellant demonstrated an understanding of the danger involved in working on the machine when he stated in his deposition that when he had attempted to unclog the corn picker previously he turned off the power first. When it became clogged again, appellant either ignored or accepted the risk involved in tampering with the machine while the power was still on. I would find appellant knew of the dangerous condition presented by the corn picker, the machine is inherently dangerous, and appellant voluntarily exposed himself to an obvious and known danger when he attempted to unclog the machine without turning off the power source. Appellee herein was entitled to judgment as a matter of law.
{ } The majority further concludes that, regardless of the trial court's determination as to primary causation of the injuries, a question of fact exists as to whether an enhanced injuries claim could be sustained. This conclusion fails to acknowledge relevant Ohio case law. In Leichtamer v. American Motors Corp. (1981), 67 Ohio St.2d 456, the Ohio Supreme Court held that an enhancement by design defect claim lies in strict liability in tort. Further, the court has held that voluntary and unreasonable assumption of a known risk posed by a product constitutes an absolute bar to recovery in a products liability action based upon strict liability in tort. Kitchens v. McKay (1987), 38 Ohio App.3d 165, 169, citing Leichtamer, supra. Based on the foregoing, any argument that appellant's pull-in type injury might have been minimized if the manufacturer had installed an emergency stop mechanism is irrelevant. Having found that appellant assumed the risk of his injuries, there was no reason for the trial court to consider the enhanced injuries claim, since recovery based on such a theory would be barred.
{ } Accordingly, I would deny both assignments of error and would affirm the judgment of the trial court.
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