concurring. I concur in the syllabus and judgment. Further I believe that the great weight of authority, as cited in the lead opinion, supports the proposition (embodied in the syllabus) that assumption of risk does not operate against an employee who is required by his employer to use a defective product.
However, I part company from the suggestion in the lead opinion, and in some of the authorities cited therein, that assumption of risk is no longer a defense where a product is used by an employee in the employment setting. The focus should not be directed to the setting where the injury occurs, but to whether the employee has voluntarily assumed the risk of using the defective product. In employment situations, there will be cases where the employee has elected to use a defective product and those where the use of a defective product has been forced upon the employee by economic necessity. In the first instance, assumption of the risk should remain a defense; in the latter it should not.
I further believe that the focus must be on the behavior of the employee. If the employee has not voluntarily assumed the risk, the person or company who has put a defective product into the stream of commerce is not entitled to assert the defense of assumption of risk. It should make no difference whether the lack of voluntary assumption stems from (1) conduct by the manufacturer of the defective product, (2) conduct by the employer, or (3) some other source such as unavoidable emergency. Volition is the touchstone. The issue is whether the plaintiff voluntarily placed himself at risk. If he did not, the defense of assumption of risk loses its basis in logic. When one is forced to undertake a risk, the risk has not been voluntarily assumed.
To me none of the above represents new law or a departure from the established law of torts. My position is succinctly stated by Section 496E, Restatement of the Law 2d, Torts (1965), in part, to wit:
“(1) A plaintiff does not assume a risk of harm unless he voluntarily accepts the risk.”
In the case before us there is a genuine issue of fact with respect to whether Cremeans voluntarily assumed the risk which caused his injury. Accordingly, I would affirm the decision of the Court of Appeals for Union County.
The thesis for laissez-faire economics follows:
(1) Laissez-faire leads to such a stabilization of prices as results in the max*153imum possible satisfaction to all participants;
(2) It results in such a disposition of the productive forces as will secure the maximum benefit from the employment; and
(3) It creates the maximum harmony between capital and labor by securing to each such a part of the common product as is equivalent to the share it has created.
13 Encyclopedia Britannica, at 598.