dissenting. I am in agreement with the court of appeals that the recently enacted comparative negligence statute, R.C. 2315.19, does not specifically, nor by implication, merge the affirmative defense of assumption of the risk into such comparative negligence law as it specifically does so merge contributory negligence.
Historically, it has been recognized in Ohio, as elsewhere, that the doctrines of contributory negligence and assumption of the risk are not synonymous. See DeAmiches v. Popczun (1973), 35 Ohio St. 2d 180 [64 O.O.2d 106]; Dunn v. Higgins (1968), 14 Ohio St. 2d 239 [43 O.O.2d 368]; Porter v. Toledo Terminal RR. Co. (1950), 152 Ohio St. 463 [40 O.O. 485]; Masters v. New York Central RR. Co. (1947), 147 Ohio St. 293 [34 O.O. 223],
Each doctrine is a separately pleaded affirmative defense, and each has its own legal characteristics. As defined in Ohio, assumption of the risk requires three elements: “One must have full knowledge of a condition, such condition must be patently dangerous to him; and he must voluntarily expose himself to the hazard.” Briere v. Lathrop Co. (1970), 22 Ohio St. 2d 166, 174-175 [51 O.O.2d 232], Contributory negligence, however, has been defined as a departure from the standard of reasonable care regardless of how unwilling and protesting the plaintiff may be. DeAmiches v. Popczun; Dunn v. Higgins; Masters v. New York Central RR. Co., supra.
In view of the distinction between the two concepts, the decisions have recognized that assumption of the risk is based on venturousness and requires a subjective standard for evaluation while contributory negligence is based on carelessness and is objectively evaluated. DeAmiches v. Popczun, supra. Furthermore, it has been recognized that the defenses are not mutually exclusive but both may be asserted in the same litigation. DeAmiches v. Popczun; Dunn v. Higgins; Wever v. Hicks (1967), 11 Ohio St. 2d 230 [40 O.O.2d 203]; and Masters v. New York Central RR. Co., supra.
R.C. 2315.19, being in abrogation of common law, must be strictly construed, and because that statute refers only to the defense of contributory negligence the argument for merger of the defense of assumption of the risk is without legislative or statutory support.
The preamble of this statute gives ample testimony to the specific legislative intent in the enactment of such new law, and provides:
“To enact section 2315.19 of the Revised Code to substitute a form of comparative negligence for the common law doctrine of contributory negligence in the determination of the right of recovery and amount of damages in negligence actions.” (Am. S.B. No. 165, 138 Ohio Laws, Part _,_,)
*117As to precedents in other states, continued recognition of the doctrine of assumption of the risk has been given where statutory comparative negligence has been adopted. We may look for precedent to the states of Rhode Island, Nebraska, South Dakota and Arkansas, which have retained the doctrine of implied assumption of the risk as an absolute bar to a plaintiff’s claim in negligence despite the enactment of comparative negligence statutes in their jurisdictions. McPherson v. Sunset Speedway, Inc. (C.A. 8, 1979), 594 F. 2d 711 (applying Nebraska law); Capps v. McCarley & Co. (1976), 260 Ark. 839, 544 S.W. 2d 850; Blum v. Brichacek (1974), 191 Neb. 457, 215 N.W. 2d 888; Kennedy v. Providence Hockey Club, Inc. (1977), 119 R.I. 70, 376 A. 2d 329; Myers v. Lennox Co-op Assn. (S.D. 1981), 307 N.W. 2d 863; Bartlett v. Gregg (1958), 77 S.D. 406, 92 N.W. 2d 654. In these jurisdictions, the two defenses are treated as separate and independent, which historically has been the case in Ohio.
The question of merger was extensively discussed in Kennedy v. Providence Hockey Club, Inc., supra, where the court specifically rejected the argument that assumption of the risk is merely a variant of contributory fault, as follows at pages 76-77:
“In our understanding, then, contributory negligence and assumption of the risk do not overlap; the key difference is, of course, the exercise of one’s free will in encountering the risk. Negligence analysis, couched in reasonable man hypotheses, has no place in the assumption of the risk framework. When one acts knowingly, it is immaterial whether he acts reasonably. The postulate, then, that assumption of the risk is merely a variant of contributory fault, is not, to our minds, persuasive.”
Kennedy v. Providence Hockey Club, Inc., at page 76, set forth quite clearly the different policies behind the respective doctrines of defense, as follows:
“As we have defined assumption of the risk, the concern is with knowingly encountering the danger. This is to be contrasted with negligently encountering a risk in falling victim, at one time in our legal history, to the defense of contributory negligence. It seems to us one who ‘sees, knows, understands and appreciates’ what he is doing, D Andrea v. Sears, Roebuck & Co., supra [(1972), 109 R.I. 479, 287 A.2d 629], is worlds apart from one who unwittingly and unsuspectingly falls prey to another’s negligence. In the former instance the plaintiff can be said to have consented to the possibility of harm, whereas in the latter; situation he has failed to assess accurately his situation and the ramifications of his own action.”
I am in agreement with the Rhode Island Supreme Court’s assessment that these defenses are independent, distinct, and based upon conceptually different grounds. As stated, they have been historically held to be so, and the legislature, in the enactment of the comparative negligence statute, intended that they remain so.
It is my position, unlike the majority here, that the defense of assumption of the risk remains available to a landlord in an action against him for personal injuries allegedly resulting from a breach of his obligations under the *118Landlords and Tenants Act of 1974. Absolutely nothing should be read into that Act which would abrogate or deny a landlord his common-law defenses.
Applying the doctrine of assumption of the risk to the facts of this case, the plaintiff should be barred from recovery from this landlord. The record shows that there were three separate entrances to the dwelling: the front, side and back. Of these three separate means of ingress arid egress to the dwelling, Anderson testified that only the front entrance was in an unsafe condition. One of the steps of the front entrance to the dwelling, according to Anderson’s deposition, originally had a small hole in it. The hole became larger, ultimately reaching approximately eighteen inches in length. Anderson testified that he repeatedly complained of the unsafe condition, felt that the step was unsafe, and further admitted that it was sufficiently unsafe that he was rather concerned about it.
Anderson continued to use the front steps to the premises despite the availability of two other means of ingress and egress to the building. Ultimately, the very step as to which he testified he had complained of and understood to be unsafe gave way underneath him. Anderson further deposed that the same unsafe condition he had previously complained of to the appellant was the cause of his fall in September 1980, upon which this action is based.
I submit that the deposition testimony of the appellee conclusively demonstrates that he voluntarily exposed himself to a known and appreciated risk. In his own deposition testimony he had actual knowledge of the particularly unsafe condition which caused his injuries. He appreciated the risk as he was personally concerned about his safety.
Accordingly, I would reverse the judgment of the court of appeals.
Locher, J., concurs in the foregoing dissenting opinion.