Appellant invites us in the instant case to apply Cremeans v.Willmar Henderson Mfg. Co. (1991), 57 Ohio St.3d 145,566 N.E.2d 1203, a products liability case, to workplace injuries under the safe-workplace statute. I believe that such an extension of the law is consistent with the philosophy of the court expressed inCremeans.
The syllabus of Cremeans, in which a majority of the court concurred, is by no means limited to products liability cases. It holds that:
"An employee does not voluntarily or unreasonably assume the risk of injury which occurs in the course of his or her employment when that risk must be encountered in the normal performance of his or her required job duties and responsibilities."
As written, this holding could quite fairly be applied to the facts of the case before us. Coming before us as it does on Schottenstein's motion for summary judgment, the record at this point, consisting of Davenport's testimony, is undisputed that Davenport believed he had two days to finish the job on which he was injured; knew that C H had lost other jobs for failing to work fast enough; and avoided working in the basement on the first day because of the standing water in the basement which Schottenstein had promised to pump out. The next day he believed he had no choice in order to finish the job except to work in the basement where the water had not been pumped out, and to walk up and down the basement stairs tracking the water with him.
Unlike my colleagues, I believe a question of fact exists about whether Schottenstein breached a duty to Davenport under the safe-workplace statute. I do agree with my colleagues that if a frequenter, like a business invitee, knew of a dangerous condition, he would be held to have assumed the risk of injury from that condition. However, if Cremeans is applied to this workplace injury, the defense of assumption of risk would not be available to Schottenstein. I believe that before this court can countenance such an extension of the law as appellant requests, the Supreme Court must first expressly address paragraph two of the syllabus of Westwood v. Thrifty Boy Super Markets, Inc. (1972), 29 Ohio St.2d 84, 58 O.O.2d 154, 278 N.E.2d 673, which holds as follows:
"Where a frequenter, as defined in R.C. 4101.10(E), voluntarily and with knowledge of an existing danger enters the premises of an employer, as defined in R.C. 4101.01(C), the defense of assumption of risk is available to such employer in an action by the frequenter alleging a violation of R.C.4101.11, safe-place statute." *Page 244
That the holding in Cremeans is to be broadly read is reinforced in Justice Douglas's analysis for a plurality of the court:
"* * * We realize that our holding `abolishes' assumption of risk in the employment setting in the sense that the defense of assumption of risk is unavailable for certain claims arising from work-related injuries. To that extent, we are in complete agreement with the conclusion of one commentator on this issue, and we can state it no better than she did in writing that:
"`The decision to abolish assumption of risk in the employment setting is grounded in economic reality and a sense of humanity consistent with present social policy. Since assumption of risk is a judicial creation, the courts should take responsibility for removing the doctrine from areas in which it plays no useful or just function. The employment setting is one of these areas, and in the face of increasing numbers of work-related injuries, courts should eliminate the doctrine as an anachronism.' [See] Comment, [Employees' Assumption of Risk: Real or Illusory Choice? (1984), 52 Tenn.L.Rev. 35,] at 65."Cremeans v. Willmar Henderson Mfg. Co., supra,57 Ohio St.3d at 149, 566 N.E.2d at 1207.
While not in the syllabus, an analysis of the economic realities of the workplace permeates the Cremeans decision. Here there is a difference of opinion among the members of the court concurring in the syllabus. Two members of the court would virtually make assumption of the risk unavailable as a defense if a worker is injured on the job from a defective product. Two others would allow the defense where the employee elects to use a defective product, but not where the employee is forced to use the product by economic necessity. See Syler v. Signode (1992),76 Ohio App.3d 250, 601 N.E.2d 225, for an excellent analysis ofCremeans. Hopefully consensus can be reached on this point especially if Cremeans is extended to the workplace in situations other than those involving defective products, such as the one before us.
For reasons of stare decisis, I concur in the judgment affirming the trial court. *Page 245