Raising three assignments of error, plaintiffs-appellants Ramon and Patricia Aretz appeal from the trial court's entry of judgment following a jury verdict for defendant-appellee Melanie Rue. Appellants sought damages related to injuries sustained by Ramon Aretz when the automobile driven by appellee struck his van in the rear. Appellee admitted that her negligence resulted in the collision, but denied that her actions were the proximate cause of Ramon Aretz's injuries.
Appellee raised as an affirmative defense the negligence of Ramon Aretz for failing to secure a television set properly inside his van. During the accident, the television set, placed on the rim of a spare tire inside the van, flew forward and struck his elbow, causing his only injury.
Following the presentation of evidence and argument, the jury answered special interrogatories and attributed seventy-five percent contributory negligence to Ramon Aretz. Consequently, the court entered judgment for the appellee. See R.C.2315.19(C). Appellants timely brought this appeal.
In two interrelated assignments of error, appellants contend that the trial court erred in denying their motion for a directed verdict on the appellee's defense of contributory negligence and in instructing the jury on that issue. The jury was instructed to consider whether Ramon Aretz was negligent in failing to properly secure the television set within his van, and if so, whether that negligence was a proximate cause of his injuries. Appellants argue that Ramon Aretz had no legally cognizable duty to anticipate the negligence of the appellee and that the evidence did not support such a charge, given over their objection at trial.
Under Ohio law, while it is axiomatic that one must use ordinary care for one's own safety, it is equally axiomatic that ordinary care for one's safety does not require a person to anticipate the negligence of another. Rather, a person has the right to assume that others will act with ordinary care.Swoboda v. Brown (1935), 129 Ohio St. 512, 2 Ohio Op. 516,196 N.E. 274, paragraph eight of the syllabus; Baker v. Pendergast (1877), 32 Ohio St. 494, paragraph one of the syllabus.
In this case, Ramon Aretz was the victim of a rear-end collision. Even if we were to assume, for purposes of argument, that he was negligent in the way he secured the television set in his van, he was not legally obligated to anticipate *Page 607 that he would be the victim of a rear-end collision. The accident was entirely the fault of the appellee. The first and second assignments of error are sustained.
As our resolution of the assignments of error going to the issue of comparative negligence necessitates reversal, we need not rule on appellants' third assignment of error, in which they claim the verdict of the jury was against the manifest weight of the evidence. App.R. 12(A)(1)(c). Therefore, we reverse the judgment entered on the jury's verdict and remand for trial on the issue of damages only. Mast v. Doctors Hosp. North (1976),46 Ohio St. 2d 539, 541-542, 75 O.O.2d 556, 557-558,350 N.E.2d 429, 430 (authorizing a court of appeals in its discretion to order the retrial of only those issues, claims or defenses which resulted in prejudicial error, and to allow issues tried free from error to stand).
Judgment accordingly.
GORMAN, P.J., concurs.
SUNDERMANN, J., dissents.