concurring in part and dissenting in part. I concur with the majority’s decision to remand this case, but I find the rationale for that decision, with its attendant high dudgeon, misplaced. I must vigorously dissent from syllabus law that would turn a manufacturer into a virtual insurer of its product in the workplace. Further, the decision emasculates our holding in Onderko v. Richmond Mfg. Co. (1987), 31 Ohio St. 3d 296, 31 OBR 576, 511 N.E. 2d 388, even as the plurality purports to cite it as controlling authority.
The plurality succinctly states the issue in its opening paragraph, referring to Onderko. It then takes a quantum leap backwards into the Nineteenth Century and launches into a diatribe about masters and servants and the horrors of laissez-faire economics.3 The discourse may be in*153structive from a historical perspective, but it is not relevant to this case.
The plurality acknowledges that the plaintiff here did not work for the defendant. Where, then, is the need for a treatise on the evils of the assumption-of-the-risk defense as a tool of oppressive employers? Most of the precedent cited by the plurality-rails at this straw man.4 Even the cases that the plurality cites involving third-party manufacturers in products liability cases do not stand for the proposition that assumption of the risk is an “anachronism” when it is used in a workplace setting.
For example, in Johnson v. Clark Equip. Co. (1976), 274 Ore. 403, 547 P. 2d 132, the Oregon Supreme Court remanded a defendant’s verdict to the trial court because it found the jury instructions on assumption of the risk were not thorough enough. Johnson, supra, at 412, 547 P. 2d at 139-140. While the court found working conditions to be a relevant factor in assessing whether acceptance of a job-related danger was reasonable, it did not eliminate the defense as the plurality would have one believe in the case at bar.
In Scott v. Dreis & Krump Mfg. Co. (1975), 26 Ill. App. 3d 971, 326 N.E. 2d 74, an Illinois appellate court concurred with the trial judge’s refusal to give an assumption-of-the-risk defense instruction to the jury. The defense was not held to be a violation of Illinois public policy, merely not appropriate in that case. In Scott, the appellate court held: “There must, we think, be an element of conscious conduct resulting in the injury which is not satisfied by mere inadvertence or momentary inattention.” Id. at 990-991, 326 N.E. 2d at 87. The lead opinion to the contrary notwithstanding, that language does not eliminate the defense in a situation where the employee had — as the plaintiff in the instant case did — an appreciation of the risks.
Even in the case that best supports the plurality, Suter v. San Angelo Foundry & Mach. Co. (1979), 81 N.J. 150, 406 A. 2d 140, the New Jersey Supreme Court stopped short of abolishing the defense of assumption of the risk. In Brown v. Quick Mix Co. (1969), 75 Wash. 2d 833, 454 P. 2d 205, the Washington Supreme Court upheld a jury instruction that the plaintiff “could not recover if he was aware of the particular danger and voluntarily exposed himself to it* * (Emphasis added.) Id. at 836, 454 P. 2d at 208. The dictum quoted by the lead opinion merely recites the Washington court’s belief that the assumption-of-the-risk defense should be determined by the fact finder. The Georgia court of appeals, confronted with a similar situation, also had a problem with applying the doctrine as a matter of law because of the hardship it worked on *154employees. Kitchens v. Winter Co. Bldrs., Inc. (1982), 161 Ga. App. 701, 289 S.E. 2d 807. That sentiment mirrors my own belief and forms the basis for my concurrence in the judgment.
The plurality makes the point that its approach is not novel in Ohio, citing Prentiss v. Kirtz (1977), 54 Ohio App. 2d 56, 8 O.O. 3d 59, 374 N.E. 2d 429. But a thorough reading of that opinion reveals that the proposition cited by the plurality — that economic compulsion negates the assumption-of-the-risk defense — is a view held by only one member of the Prentiss court. I repeat, one! The other two judges specifically disavowed that portion of the opinion “relative to ‘economic compulsion’ or ‘economic necessity’ as an excuse for contributory negligence or assumption of the risk.” Prentiss, supra, at 60, 8 O.O. 3d at 62, 374 N.E. 2d at 432. “In a day of OSHA, safety codes, management and labor safety programs, I find this tenet antiquated,” Judge Potter wrote in his concurring opinion, joined by Judge Connors. “Contributory negligence was simply a proper issue for the jury.” Id. at 60-61, 8 O.O. 3d at 62, 374 N.E. 2d at 432. Further, the case turns on whether there was sufficient evidence to create a jury question. Prentiss, supra, at 58, 8 O.O. 3d at 60, 374 N.E. 2d at 431. The cited language about “economic necessity” is pure dictum.
It should be clear by now that the majority’s position, rather than moving Ohio into the Twentieth Century, would, instead, move the state out of the mainstream. What the plurality has done, through many of the cases it has cited, is point the way the state should go without leaving manufacturers bereft of a defense in such situations. The virtue of this approach is that it also remains true to the holding in Onderko. The assumption-of-the-risk defense is, indeed, harsh in its application in strict liability cases, acting as it does as an absolute bar to recovery. But, as Justice Douglas himself noted in his opinion in Onderko, supra, at 300-301, 31 OBR at 579, 511 N.E. 2d at 392:
“* * * It must be remembered, however, that this foreclosure of recovery on a strict liability theory does not deprive an injured plaintiff of all possible remedies. A plaintiff injured by a product is not limited to the theory of strict liability as the sole means of redress. An action in negligence may also be available to compensate the plaintiff for his injury. Strict products liability and negligence are distinct theories, but they have never been regarded as mutually exclusive. * * * Nor is a plaintiff required to elect between the two theories. * * * A case in which the plaintiff alleges strict products liability may also be submitted to the fact finder on a negligence theory. * * * Thus, a plaintiff whose recovery is barred on a strict liability claim due to a finding that he assumed the risk may still recover on a negligence theory where such negligence can be proved. * * * In such a case, the plaintiff’s assumption of the risk would not necessarily be an absolute bar but would merely operate to reduce his recovery, if the jury finds that such assumption of the risk amounted to fifty percent or less of the total responsibility for the injuries incurred. R.C. 2315.19; Anderson v. Ceccardi (1983), 6 Ohio St. 3d 110, 6 OBR 170, 451 N.E. 2d 780.” (Citations omitted.)
As to the conclusion asserted by the author of the Tennessee Law Review comment5 that the trend in *155this country is to abolish the assumption-of-the-risk defense in an employment setting, I can only say that a careful reading of her comment reveals that conclusion to be a case of the wish being father to the thought.
This so-called “trend” consists of a holding by just one state, New Jersey, that some employees injured on the job cannot be barred from recovery by an assumption-of-the-risk defense in a products liability suit against a manufacturer. See Annotation (1990), 75 A.L.R. 4th 538, at 603. Even New Jersey, now alone in the “forefront” of this movement, does not make its rale absolute. The New Jersey Supreme Court, in Suter, supra, at 167, 406 A. 2d at 148, referred to “an employee engaged at his assigned task on a plant machine.” The court added, in a footnote, that: “We are not herein passing upon other situations wherein an employee may similarly be held to have had no meaningful choice.” Id. at fn. 5.
What the comment analysis does reveal is that courts have been reluctant in many cases to apply the doctrine as a matter of law to preclude a jury determination of the issue. The comment makes a case for requiring trial courts to instruct juries to consider whether a worker’s assumption of the risk was knowing, voluntary and unreasonable. Comment, supra, at 58. Further, a necessary component of that evaluation should be working conditions. (See Johnson v. Clark Equip. Co. [1976], 274 Ore. 403, 414, 547 P. 2d 132, 140, for the holding that ‘ ‘working conditions * * * may represent the most important motivational factors” in assessing an employee’s conduct.)
Therefore, I concur in overruling the trial court’s grant of summary judgment on the assumption-of-the-risk defense. But I believe the better rule would be the following:
Where a plaintiff is an employee injured on the job by a defendant-manufacturer’s product and the plaintiff is not under the defendant’s control, then the defendant may assert as an affirmative defense that the plaintiff knowingly, voluntarily, and unreasonably assumed the risk posed by the product and is therefore barred from recovery.
Further, since this issue is so fact-dependent, I would urge that its resolution should generally be best left to a jury. For those reasons, I vigorously dissent from the syllabus law.
Williamson v. Smith (1971), 83 N.M. 336, 491 P. 2d 1147, involved a plumber suing his boss and the company that dug the trench that caved in, causing plaintiffs injury. Tiller v. Atlantic Coast Line RR. Co. (1943), 318 U.S. 54, involved a railroad worker suing his employer for an injury suffered on the job. Siragusa v. Swedish Hospital (1962), 60 Wash. 2d 310, 373 P. 2d 767, involved a hospital worker suing her employer for a back injury suffered on the job.
Comment, Employees’ Assumption of Risk: Real or Illusory Choice? (1984), 52 Tenn. L. Rev. 35.