dissents
The result fashioned by the majority is unconscionable It invokes the limited provisions of App. R. 12(B) and multiplies the verdict of the jury and the judgment of the trial court ten-fold (from $100,000 to $1,000,000), and fails to certify conflict with Couch v. Thomas (1985), 26 Ohio App. 3d 55.
And this all in the name of "plain error."
The most severe remedy this court should grant - assuming plain error, or error at all, is an order of remand for a new trail.
It is manifest that this case was conceived, pled, tried, submitted to the jury, and journalized, on the comparative negligence track. The whole trial process is channelled by this track. It is entirely different than a noncomparative negligence trial. The parties differ, pleadings differ, discovery differs, the appropriate direction *109on voir dire differs, plaintiff's presentation of evidence differs, and defense evidence and strategy differs. The jury charge differs, interrogatories to the jury differ, the verdict form differs, the verdict differs, and the judgment differs.
A comparative negligence case and a negligence case are not the same law suit.
Here, a competent, well-trained, highly experienced compensation trial attorney disdained at virtually every stage of the proceedings the opportunity to invoke the comparative negligence protection he now seeks.
The case is routed on the comparative negligence track by the answer which invokes the comparative negligence statute "Contributory negligence" is asserted as a defense See R.C. 2315.19(D).
Plaintiff sought no pretrial summary judgment that he was not contributorily negligent. Civ. R. 56.
Plaintiff disdained any motion for directed verdict at the close of the evidence
Plaintiff failed to object to several jury charges, including the charge of the court on plaintiff's contributory negligence, and the responsibility of the trial court to apportion negligence
Plaintiff disdained to challenge the interrogatories couched in terms of comparative negligence
Plaintiff failed to request interrogatories consistent with a principle of negligence and ultimate joint and several liability.
The majority ignores, and as a consequence emasculates, the specific; mandatory provisions of Civ. R. 51(A).
A party may not assign as error the giving or the failure to give any instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.
The rubric employed by the majority to reach its finale is "plain error."1
I would overrule the comparative negligence assignments of error upon the authority of Civ. R. 51. Analysis should end.
However, the ruling of the majority requires an examination of the question:
"Did the trial court err in applying R.C. 2315.19 (comparative negligence)? If error, was the error 'plain error?"'
Whereas some stateshave adopted comparative negligence, with consequent several liability in all negligence cases,2 Ohio seems to limit its application to those cases where "contributory negligence is asserted as a defense." (R.C. 2315.19(D), paragraph 1.) The issue then becomes, when does comparative negligence cease, and historicprinciples of joint and several liability commence?3
The legislation is inartfully drafted. It is possible to read the entire section to a conclusion that its provisions apply in all negligence actions with the consequent substantive conclusion that joint and several tortfeasors are to be liable only for their
proportion for the total damages. Subsection (AXD applies to "negligence actions" and is not limited in its language to cases where contributory negligence is asserted as a defense. Further, subsection (AX2) establishes damage proportionality. Only in the next section, i.e., R.C. 2315.19(B), is contributory negligence drawn into the equation.
This is the reading essentially given to the statute by the Twelfth District Court of Appeals. In Couch v. Thomas (1985), 26 Ohio App. 3d 55, 497 N.E. 2d 1372, a passenger in an automobile driven by a co-worker was injured in an accident. Notwithstandingthe co-worker was immune (the passenger received workers' compensation), the court held the third party defendant was only liable for his proportionate share of the damages to the passenger. It was never alleged that the passenger was contributorily negligent. Nevertheless, the court held:
"However, we feel that the underlying fundament of appellant's position, which is a request for an adjustment of his obligation to Couch based on his proportion of fault as compared to Thomas', has considerable merit. After all, if Thomas was not entirely responsible for the automobile collision and Couch's resultant injuries, he should not be in the position of being required to pay for Couch's damages in their entirety due to the immunity afforded Rowland by R.C. 4123.741. While there is no Ohio statute or case law directly on point, Thomas' predicament violates the spirit, if not the letter of R.C. 2315.19, which authorizes application of the concept of comparative negligence in Ohio, and the aforementioned R.C. 2307.31, which states that * * *[n]o tortfeasor is compelled to make contributionbeyond his own proportionate share of the entire liability.* * * The fact that Thomas is obligated to pay more than his proportionate share of liability to Couch also violates his right to due process of law and his right to equal *110protection under the law. It also offends our basic sense of equity and fair play.
* * *
The above allocation of damages is fair to Thomas because he is thereby responsible only for the share of the damages occasioned by the percentage of negligence attributable to him, a result in keeping with public polity considerations behind the concepts of comparative negligence and contribution among joint tortfeasors. It avoids the clearly inequitable result which would have otherwise occurred in the case at bar whereby Thomas would have been completely responsible for Couch's damages regardless of his actual percentage of fault.
Couch, supra, at 56.
By contrast, the Sixth District Court of Appeals (per Judge Resnick) holds that even where the comparative negligence statute is initially invoked, several liability only applies if some contributory negligence is found. Carney v. McAfee (12/31/86), Erie App. No. CA-E-85-58, unreported. Accord, Hurshman v. Baker (6/2/88), Cuyahoga App. No. 53688, unreported; Nice v. Murphy (6/14/85), Carroll App. No. 501, unreported.
The Supreme Court has not directly answered the above questions However, the court has favored us with dicta in a case where comparative negligence principles were applied where the jury found no one negligent. The Supreme Court found no reversible error:
"This case was litigated on the basis of contributory negligence, rather than comparative negligence as required by R.C. 2315.19. Thus, the case before us was not tried in accordance with Wilfong, supra.
"[3] However, this has no significance here. Like contributory negligence, the doctrine of comparative negligence, consistent with the provisions of R.C. 2315.19, is a defense to a claim for relief for negligence. Its application is triggered by the fact finder's determination that the defendant, as well as the plaintiff, was negligent". Seeley v. Rahe (1985), 16 Ohio St. 3d 25, 475 N.E. 2d 1271.
For the reasons above stated, I would not reach the merits of the comparative negligence assigned errors.
CERTIFICATION OF CONFLICT
However, having ruled upon those merits, I believe the majority is bound to certify the record of this case to the Supreme Court for review and final determination pursuant to Ohio Constitution, Article IV, Section 3(BX4), as in conflict with Couch v. Thomas (1985), 26 Ohio App. 3d 55. The public, bar and bench deserve no less. The majority assertion that Couch is contrary to law, p. 12, is no reason, even if correct, to deny certification.
THE PLAIN ERROR QUESTION
Given the frequent caveats that the doctrine of plain error should be utilized with "utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice" Cleveland Electric Illuminating Co. v. Astorhurst Land Co. (1985), 18 Ohio St. 3d 268, 480 N.E. 2d 794, I find it astonishing that we ascribe plain error to a trial court that has proceeded in precisely the same way the court of appeals of another district has prescribed as appropriate, particularly where that other opinion (Couch) has not been reversed.4
How can it be seriously claimed that the trial court committed plain error when the Supreme Court had already ruled that the comparative negligence statute authorized damage allocation (including a nonremaining party to the action), in Cincinnati Riverfront Coliseum v. McNulty Co. (1986), 28 Ohio St. 3d 333, 504 N.E. 2d 415, where the jury found no contributory negligence. There, the coliseum sued eleven parties involved in the design and construction of a walkway which had deteriorated. By the time of trial only two defendants remained. The interrogatory, apportioning negligence, included "others involved," i.e., parties who were no longer active in the suit. Although there was no finding that the plaintiff-coliseum was negligent, the court approved the allocation of damages among the defendants, including those no longer involved.
The trial court submitted an interrogatory to the jury which instructed it to apportion damages among Riverfront, Clark, the city, McNulty Co. and "Others involved." Following the standards of comparative negligence that governed the resolution of the instant action at the trial level, the jury was required to specify the percentage of negligence "attributable to each party to the action" that directly and proximately cause Riverfront's losses We find that the form and content of the interrogatory involved did not prevent a fair and complete apportionment of liability. The parties remaining in the controversy for trial were specifically named and those that had been dismissed were reasonably made subject to consideration for purposes of apportionment under the category of "others involved."
*111Cincinnati Riverfront Coliseum, supra, at 339. (Note: "the case was reversed and new trial ordered on other grounds.")
See also, Schade v. Carnegie Body Co. (1982), 70 Ohio St. 2d 207, 436, N.E. 2d 1001, holding no plain error where the trial court charged the jury on contributory negligence without objection of the plaintiff.
I would conclude that there was no plain error in this case.
Finally, the extreme, App. R. 12(B), remedy fashioned by the majority, depends for its integrity on a finding by the jury the majority also says should never have been made. (At. p. 13, fn 7, the majority finds error in instructing the jury to "determine the percentage of a non-party's [Barmet] negligence" Yet the percentage allocation as to Barmet and the other defendants is critical to its ultimate conclusion. Note that appellant does not challenge the judgments as to liability of other defendants.)
As a maximum, I would conclude that the appropriate remedy for the comparative negligence error is the granting of a new trial, with a certification of conflict to the Supreme Court. .