concurring in part and dissenting in part. I concur in the syllabus law announced in the majority opinion. However, I respectfully dissent from the decision of the majority because it changes the law relating to the two-issue rule that has been consistently applied by this court and other courts in Ohio.
The majority agrees that the trial court should not have given an instruction on sexual harassment. It nevertheless affirms the full amount of the jury’s verdict, including punitive damages in the amount of $1,280,000, based on its “determination that the jury, if not instructed on sexual harassment, would still have decided in appellant’s favor on his claim for intentional infliction of emotional distress.”
But in failing to remand the cause for a new trial, at least as to the issue of damages, the majority implicitly accepts the premise that the jury determined the amount of its damages award based solely on a finding that plaintiff had established his claim of intentional infliction of emotional distress and included no damages in its award based on its finding of liability for sexual harassment.
This conclusion is particularly confusing in view of the majority’s statement that “[gjiven that appellees [defendants] failed to request interrogatories that might have explained the verdicts, we must presume that the awards were based on both claims.” Consistency would require us to presume that in the absence of such interrogatories, the total amount of damages awarded by the jury, particularly punitive damages, was similarly based on findings of liability for both sexual harassment and intentional infliction of emotional distress.
The majority’s conclusion that we should, in effect, assume that the jury awarded damages based upon plaintiffs separate claim for damages arising from *189alleged intentional infliction of emotional distress is contradicted by the record. The trial was overwhelmingly focused on Hampel’s claim of sexual harassment. Prejudice resulting from the giving of an unwarranted instruction on that claim is patent. Throughout the trial Hampel argued the sexual overtones of the case. In closing argument Hampel’s counsel stated, “This is a case about sexual harassment. * * * It was sexual. It was about sex. It was based on sex.”
In summation to the jury, Hampel’s counsel effectively merged the two claims of sexual harassment and intentional infliction of emotional distress (“We also know that many victims of sexual harassment suffer serious emotional distress,” and “most people who would be harassed to this degree would be distressed”). Similarly, twenty-three pages of the jury charge are devoted to the statutory claims for sexual harassment and employer retaliation, while only three go to the claim for intentional infliction of emotional distress. Further, the interrogatories, as quoted in the footnote to the majority opinion, focus on the elements of a claim of sexual harassment more than on the elements of intentional infliction of emotional distress.
The court of appeals is correct in observing that “the jury returned a combined verdict, awarding compensatory damages on both the sexual harassment and intentional infliction of emotional distress claims. The punitive damages verdict did not explain whether the punitive damages award was based on the sexual harassment claim, the emotional distress claim, or both. Accordingly, the court cannot tell how much the jury would have awarded appellee solely for intentional infliction of emotional distress.”
As the court of appeals observed, this court has acknowledged that the two-issue rule “ ‘has not met with universal favor,’ ” and that we have indicated a reluctance to “ ‘further extend the operation of the rule.’ ” Pulley v. Malek (1986), 25 Ohio St.3d 95, 97, 25 OBR 145, 147, 495 N.E.2d 402, 404, quoting H.E. Culbertson Co. v. Warden (1931), 123 Ohio St. 297, 303, 175 N.E. 205, 207. Ohio precedent has established that the two-issue rule is grounded in the proposition that an appellant must demonstrate more than harmless error and show prejudice in order to justify reversal of a verdict. See Pulley, supra; Wagner v. Roche Laboratories (1999), 85 Ohio St.3d 457, 460, 709 N.E.2d 162, 164 (the two-issue rule “is in essence a rule concerned with prejudice”). Accordingly, the two-issue rule does not apply where the trial court instructs on a defense on which it should not have given an instruction. Kehrer v. McKittrick (1964), 176 Ohio St. 192, 196, 27 O.O.2d 82, 84, 198 N.E.2d 669, 672; Ricks v. Jackson (1959), 169 Ohio St. 254, 8 O.O.2d 255, 159 N.E.2d 225, paragraph four of the syllabus.
Again, the court of appeals correctly stated the law that should be followed by this court when it stated on reconsideration that the “rationale applied by the court in Kehrer and Ricks applies with equal force where the jury returns a *190general verdict on two or more claims, one of which should not have been submitted to it. Because the jury verdict could well have been based, in whole or in part, on the claim which was erroneously submitted, the entire verdict is affected by the error, and the two issue rule does not apply. * * *
“This case is even clearer. The verdict forms disclose that the jury found for plaintiff on both claims. Because one claim was submitted to the jury in error, and the damages awarded on each claim cannot be differentiated, a new trial on the other claim should be ordered.” (Emphasis added in part.)
The court of appeals followed well-established law announced by this court and followed for many years by courts of appeals and trial courts. Neither party has cited a reason to change the established law. I would affirm the judgment of the court of appeals and remand the cause for a new trial on both liability and damages as to the claimed tort of intentional infliction of emotional distress. However, even assuming, as does the majority, that the two-issue rule applies in this case, the rule should be deemed applicable to preserve the jury’s finding only as to the defendants’ liability for the tort of intentional infliction of emotional distress. The two-issue rule should not be used to affirm both liability and damages.
Lundberg Stratton, J., concurs in the foregoing opinion.