dissenting. Although I certainly favor judicial economy, I do not believe that it should control the disposition of a case when it needlessly *438trammels substantial justice. Such a result is even more troubling when it is rooted in a mischaracterization of a procedural issue. For these reasons and the supporting analysis which follows, I respectfully dissent.
As the majority opinion acknowledges, the Browns did not waive primary assumption of risk (“PAR”) at the pleading stage because the general reference to “assumption of risk” in their answer satisfied the requirements of Civ.R. 8. The majority opinion goes on, however, and recites a litany of factors, the accumulation of which allegedly amounts to waiver of PAR.
I am at a loss to explain how any of these considerations force this conclusion when most, if not all, of the truly cogent reasons given by the court center on the jury’s fact-finding role. As the majority states repeatedly, PAR is a question of law. As such, it is an issue which must be decided by the court. The absence of evidence presented to the jury, the lack of instructions on PAR, and the omission of any reference to this issue in closing arguments cannot possibly be construed as waiver in the context of this particular case.
In addition, I am unaware of any rule that requires a legal issue to be raised on summary judgment before it is entitled to an airing on a motion for a directed verdict or judgment notwithstanding the verdict. Finally, Civ.R. 50(B) permits a motion for judgment notwithstanding the verdict regardless of whether a directed verdict premised on the same theory was requested. Accordingly, the circumstances in the proceedings below strike me as inapplicable to this court’s determination of this matter.
What is pertinent is that appellees raised the defense of assumption of risk in their answer. For whatever reason, they chose to reserve PAR until after the jury returned its verdict. Since I see no principled reason to forbid this sort of tactical calculation at the trial level, I would affirm the court of appeals’ decision.
Douglas, J., concurs in the foregoing dissenting opinion.