Cremeans v. Willmar Henderson Manufacturing Co.

Holmes, J.,

dissenting. I dissent from the unsound and erratic decision reached in this case because I believe that the lead opinion’s exhaustive analysis of the historical underpinnings of the defense of assumption of risk in the employer-employee relationship is entirely misplaced and it only serves to confase the only issue which is properly before this court. That issue concerns a manufacturer’s use of the defense of assumption of risk in a case where an employee charges the manufacturer with strict liability in tort. Since this court has never held that economic necessity can nullify an employer’s use of the defense of assumption of risk, it is wholly inappropriate to extend the concept to negate the defense when it is raised by a manufacturer.

The proposition that economic necessity deprives the employee of volition so as to preclude the doctrine of assumption of risk has been repudiated by a number of court decisions. In Wooten v. White Trucks (C.A.5, 1975), 514 F. 2d 634, the United States Court *156of Appeals, Fifth Circuit, observed that the force of the workplace seldom, if ever, offers a worker an exception to the defense of assumption of risk:

“* * * Kentucky [law, in respect to the assumption of risk defense,] has repudiated economic necessity as an excuse for encountering a known or obvious hazard unless, possibly, it is established that plaintiff has made unsuccessful outcry against his conditions of employment, so that loss of his job is the only alternative to going ahead under hazardous conditions. ***” Id. at 640, fn. 17.

The Court of Appeals for the District of Columbia, in Stancill v. Potomac Elec. Power Co. (C.A. D.C. 1984), 744 F. 2d 861, in interpreting Maryland law, held that an employee who undertakes work which exposes him to obvious dangers does so voluntarily and cannot plead economic compulsion as a force which negates assumption of risk. “The mere fact that * * * [the defendants] were pursuing their livelihood is immaterial to the question whether they assumed the risk.” Id. at 867, fn. 34.

In the case sub judice, the lead opinion, being result-oriented, designedly ignores remedies available to injured employees under workers’ compensation, or under intentional tort law, which conceivably could be available here. Although the doctrine of assumption of risk dates back to the days of the industrial revolution, it is not necessary for Ohio to adopt an exception to this defense in the name of “economic reality,” as foisted upon us by the plurality in the guise of moving Ohio law into the Twentieth Century. In the recently decided case of Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100, 522 N.E. 2d 489, we defined “intent” for the purpose of proving the existence of an intentional tort committed by an employer against his employee.6 In order for the employee to recover, the following must be established:

“* * * (1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within his business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainly and not just a high risk; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task.” Id. at paragraph three of the syllabus.

While an employer may be found liable to his employee under Van Fossen, it was never our intention to hold manufacturers liable for the intentional torts of the employer. The unbelievably bad result of the lead opinion here is that the manufacturer becomes an insurer of his product whenever an employer coerces his workers into exposing themselves to unconscionable risk of injury.

Most notably, Comment b to Sec*157tion 496E of the Restatement of the Law 2d, Torts (1965), rejects the majority’s position that Cremeans may maintain a products liability suit against a manufacturer when his employer was responsible for exerting the economic pressure which negated the voluntary element of the assumption-of-risk defense. Comment b to Section 496E provides in relevant part:

“The plaintiff’s acceptance of the risk is to be regarded as voluntary even though he is acting under the compulsion of circumstances, not created by the tortious conduct of the defendant, which have left him with no reasonable alternative. Where the defendant is under no independent duty to the plaintiff, and the plaintiff finds himself confronted by a choice of risks, or is driven by his own necessities to accept a danger, the situation is not to be charged against the defendant. * * *” (Emphasis added.)

The tortious conduct of Willmar in not equipping the Willmar loader with a protective cage did not create the “compulsion of circumstances” which deprived Cremeans of voluntary action. Cremeans was neither under the direction nor subject to the control of Willmar, who merely sold the loader without its protective cage in accordance with the explicit instructions of Sohio. To the extent that there is the slightest evidence of economic coercion, it was exerted by the employer, who specifically ordered the equipment in its dangerously defective state and directed its use in the fertilizer bins.

The majority erroneously equates Willmar’s actions in placing a dangerously defective product into the stream of commerce with the compulsion of Cremeans’s circumstances so as to hold the manufacturer responsible under Comment b to Section 496E. “Compulsion of circumstances” makes the plaintiff’s acts involuntary (and thereby disarms the defendant of his assumption-of-risk defense) only when this coercive force can be attributed to the defendant. Although the absence of the protective cage on the Willmar loader made entry into the fertilizer bins possible, it by no means compelled the operator to perform this hazardous chore. Comment b to Section 496E speaks to the defendant’s specific tor-tious act of compelling another to involuntarily assume a risk and not to general malfeasance such as admitting a dangerously defective product into commerce.

A number of decisions from other jurisdictions have followed the reasoning of Comment b to Section 496E and held that the concept of economic necessity does not nullify the doctrine of assumption of the risk where the defendant did not create the compulsion which the plaintiff contends required him to assume the risk of injury. For example, in Hedgepeth v. Fruehauf Corp. (D.C. Miss. 1986), 634 F. Supp. 93, the driver of a tanker-trailer sued its manufacturer in strict liability for injuries suffered when he slipped on the oily surface of the tanker and fell. In holding that the defense of assumption of risk barred plaintiff’s recovery from the manufacturer, the court rejected the argument that plaintiff’s actions were involuntary because he was ordered by his employer to “either pull the tanker in its oily condition or go home for the day.” Id. at 99, fn. 3. In Ralston v. Illinois Power Co. (1973), 13 Ill. App. 3d 95, 98, 299 N.E. 2d 497, 499, the court held that an “employee cannot exculpate himself from the legal consequences of his acts [of assuming the risk of a dangerous product] on the grounds that he is fearful of losing his job if he does not comply with his superior’s orders. * * * An order from a superior ‘does not make his exposure to the risk involuntary.’ *158Fore v. Vermeer Mfg. Co. [(1972), 7 Ill. App. 3d 346, 349, 287 N.E. 2d 526, 528].” And in Willis v. Eckert Packing Co. (1969), 21 Ohio App. 2d 117, 50 O.O. 2d 216, 255 N.E. 2d 309, where the economic coercion was created by the plaintiffs employer and not by the defendant, plaintiffs conduct in assuming the risk was nonetheless held voluntary.

Accordingly, for the reasons expressed above, I strongly dissent.

The complaint in this case was filed on December 2, 1985, in Franklin County, Ohio. Subsequently, the action was removed to Union County on April 8, 1986. Depositions and other discovery matters began in Union County on June 6, 1986. Thus, any analogy to an employer’s intentional torts in this case would properly be construed under Van Fossen, supra, since R.C. 4121.80(G), effective August 22,1986, applies only prospectively. Van Fossen, supra, at paragraphs one, two, three and four of the syllabus.