dissenting
I dissent.
Civ. R. 56(C) states in pertinent part:
"..Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law..A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."
The majority opinion glosses over those issues in affirming the trial court.
For example, regarding the issue of the adequacy of the warnings given to decedent, the majority states; "the appellant is not persuasive that there was a duty..." The majority concludes, "appellant has not provided any substantive authority demonstrating that Becor-Western should have warned..of the open or obvious danger of crane disassembly." (Opinion at p. 5, emphasis added.) It is not our task, nor was it the trial court's to determine which party was more persuasive. Determinationof credibility is wholly within the province of the jury, Duke v. Sanymetal Products Co., Inc. (1972), 31 Ohio App. 2d 78. The conclusary assertion that the danger was open or obvious is a factual assertion. It was for the jury to determine whether the danger was so open or obvious as to render a warning unnecessary. I think the Seley case cited by the majority may be extended thus far.
Likewise, the majority isolates the statement by appellant's expert witness regarding a single aspect of the warning in the instruction manual. The majority ignores numerous other statementsby that expert and another regarding the adequacy of the warnings. One simply cannot conclude from the state of this record that reasonable minds could only determine that BecorWestern had adequately discharged its duty to decedent, or for that matter, to his employer.
Finally, the issue of assumption of risk is a factual one for the jury, because it depends in part upon what the jury determines are the facts regarding the adequacy of the warnings and the obviousness of the dangers.
I must differ with the majority's reading of Onderko v. Richmond Manufacturing Co. (1987), 31 Ohio St. 3d 296. It is true that this case does not stand for the proposition that it is a jury issue whether a plaintiff has voluntarily and unreasonably assumed a known risk. However, after a full and fair reading of Onderko, one can only conclude that the trial court, the Court of Appeals, and the Supreme Court took as an implicit premise that the issue was for the jury's determi*102nation. The sentence quoted by the majority highlights this fact.
I would sustain the assignment of error, reverse the trial court, and remand the case back for determination of the following material facts: (1) were the warnings provided by Becor-Western adequate; (2) did the decedent voluntarily and unreasonably assume a known risk; and (3) were the actions of the employer an intervening and superseding cause of the death of decedent, thereby releasing Becor-Western of liability.