dissenting. The legal community of Ohio may reasonably look with dismay, if not disbelief, upon the opinion of the majority here. Once again, the court engages itself in its revolving door policy of ever changing legal principle. In a classic showing of its complete disregard, if not contempt, for the time honored principle of stare decisis, this court now reverses its position on precisely the same issue upon which it had pronounced itself, not just once, but upon three separate occasions within the last two years.
In Benjamin v. Deffet Rentals (1981), 66 Ohio St. 2d 86, 90 [20 O.O.3d 71], this court, in footnote 5 to the opinion written by Justice Sweeney, stated that R.C. 2315.19 need not be considered in a cause of action which arose prior to its effective date but was tried after such date. The note stated, in pertinent part:
“* * * Since the instant cause of action arose prior to the most recent enactment of R.C. 2315.19, this court need not now decide what effect, if any, the comparative negligence statute would have on a defense which partakes of both assumption of risk and contributory negligence.”
Thereafter, this court decided Viers v. Dunlap (1982), 1 Ohio St. 3d 173, which also was a case where the accident giving rise to the cause of action occurred some time prior to June 20, 1980, the effective date of R.C. 2315.19, and the trial occurred after such date. The brief, but clear and pointed syllabus of Viers was:
“R.C. 2315.19 affects substantive rights and applies prospectively to *108causes of action arising after June 20, 1980, the effective date of the statute.”
On the same date that this court issued its opinion in Viers, it also released the opinion in Straub v. Voss (1982), 1 Ohio St. 3d 182, in which this court again pronounced the law that R.C. 2315.19 was to be applied prospectively only.
It is not necessary for purposes of this dissent to set forth at any length the law as it should be, and for a two-year period has been, relative to this issue. Such valid law was set forth in the majority opinion of Justice Locher in Viers and in my concurrence in the syllabus law of that case. However, I feel it necessary to set forth a few points discussed by what was then a majority of this court upon the precise issue.
At the outset, I refer to my comment in Viers that the question of the prospective versus retrospective application of this statute is clearly answered by the adherence to the statutory policy of the presumption of prospectivity to be applied to enactments of the General Assembly. R.C. 1.48 provides that “[a] statute is presumed to be prospective in its operation unless expressly made retrospective.” As I stated in Viers:
“* * * If there is no specific expression by the General Assembly that the statute is to be retroactive in its application [as in the instance of this statute], R.C. 1.48 provides that it is to be prospective and, accordingly, applied to causes of action arising subsequent to the effective date of the legislation.” Id. at 179.
Also, I concurred with the majority in Viers that the statute was substantive in nature, and therefore could only be applied prospectively in conformity with Section 28, Article II of the Ohio Constitution. The substantive, rather than procedural, nature of R.C. 2315.19 was very aptly stated by Justice Locher in Viers, at 175-176, as follows:
“Similarly groundless is appellees’ argument that R.C. 2315.19 is merely remedial. Although semantic formulations can be devised to understate the obvious, it is patently clear that the statute markedly affects substantive rights. Where before a defendant was shielded from liability by a plaintiff’s contributory negligence, this defendant no longer enjoys such protection. Where before a plaintiff who was contributorily negligent was denied recovery, he is now — as long as his misfeasance is not the predominant cause of his injury — entitled to damages. To characterize, as appellees do, such a fundamental change in the law as affecting only trial procedure and the mode by which a remedy is effected defies logic. The application of R.C. 2315.19 to causes arising before its effective date would change the legal character of rights and responsibilities arising out of past transactions in complete derogation of R.C. 1.48.”
Justice Locher also correctly pointed out that it was not the province of this court to legislate that which the General Assembly had chosen not to do, stating at 178 as follows:
* * * This court’s duty in the instant cause is to enforce the will of the *109General Assembly. We may not, consonant with that obligation, ignore the clear dictates of R.C. 2315.19. In construing a statute codifying the doctrine of comparative negligence, we lack the freedom enjoyed by courts that have affected the regime of contributory negligence by modifying the common law, the exclusive bailiwick of the judiciary.”
It appears upon a review thereof that the overwhelming trend among the states which have adopted comparative negligence statutes similar to Ohio’s statute, which is silent as to its retroactivity, has been to deny retroactive application.6 As an example, in Joseph v. Lowery (1972), 261 Ore. 545, 495 P. 2d 273, the Oregon Supreme Court held that comparative negligence invades a substantive right and affirmed a presumption against retroactivity. The court stated:
“Under the comparative negligence statute, a plaintiff whose negligence is less than that of the defendant is not barred from recovery by virtue of his contributory negligence, but is allowed recovery reduced by the degree of his fault. Therefore, if applied retroactively, the act would affect legal rights and obligations arising out of past actions * * * [i]f applied retroactively, the statute could create a duty to pay which did not exist at the time the damage was inflicted.” Id. at 549.
I strongly conclude that the law as most recently announced in Viers and Straub, supra, should be followed by the court in this case. To do otherwise again completely demolishes any remaining semblance of the doctrine of stare decisis in this state. The only change that has taken place which would conceivably alter our position as announced in those cases has been an intervening change of personnel on the court — precisely the type of changed circumstance that the doctrine of stare decisis has been relied upon to maintain the stability of the case law of this jurisdiction. What confidence may attorneys, judges and litigants have in the stability of the decisional law of this court? .This query is self-answering.
I would affirm the judgment of the court of appeals.
W. Brown, J., concurs in the foregoing dissenting opinion.In addition to the cases cited above, retroactivity was denied in each of the following cases: Hunt v. Sun Valley Co. (C.A. 9,1977), 561 F. 2d 744 (applying Idaho law); Crutsinger v. Hess (D. Kan. 1976), 408 F. Supp. 548; Fuller v. Illinois Cent. RR. Co. (1911), 100 Miss. 705, 56 So. 783; Dunham v. Southside Natl. Bank of Missoula (1976), 169 Mont. 466, 548 P. 2d 1383; Rice v. Wadkins (1976), 92 Nev. 631, 555 P. 2d 1232; Jones v. Jones (1973), 113 N.H. 553, 311 A. 2d 522; Joseph v. Lowery (1972), 261 Ore. 545, 495 P. 2d 273; Brewster v. Ludtke (1933), 211 Wis. 344, 247 N.W. 449; Crane v. Weber (1933), 211 Wis. 294, 247 N.W. 882. Clearly, the prevailing view where a statute is silent as to retroactivity is to deny retroactivity.