Opinion
No. 40665
Decided June 28, 1967.
Pleading — Allegation in answer of assumption of risk — No allegation of material fact requiring reply, when — Section 2309.27, Revised Code.
APPEAL from the Court of Appeals for Hamilton County.
This is an action to recover damages for scalp and hair burns alleged to have been inflicted upon plaintiff while having her hair bleached at defendant's place of business. The petition is in the alternative, alleging breach of an implied warranty and also negligence.
Defendant, in its answer, for a first defense admits that plaintiff's hair was bleached at defendant's place of business and denies all other allegations of the petition, and for a second defense says that, if plaintiff was injured as alleged, "plaintiff requested during the time said bleaching occurred that defendant's operator continue and complete the bleaching process on that day, and that plaintiff thereby assumed the risk of any injury that might have occurred to her as a result of said bleaching process."
No other pleadings were filed prior to trial.
The case proceeded to trial to a jury. At the conclusion of plaintiff's evidence, the defendant orally moved for a directed verdict for defendant, based on the evidence. The court, in overruling the motion, commented that "there is evidence which is contradicted"; that "the evidence only supports a claim under the negligence claim"; and that "I am going to instruct the jury to consider this case solely as a negligence case."
At the conclusion of all the evidence, the defendant filed a motion for judgment on the pleadings and evidence, for the reason that defendant raised "the affirmative defense of assumption of risk in its answer to the petition filed herein, which affirmative defense is supported by the evidence, to which no reply has been filed."
The court found the motion well taken, withdrew the case from the jury, granted "judgment as a matter of law for the defendant," and overruled plaintiff's motion for a new trial.
The Court of Appeals affirmed the judgment.
The allowance of a motion to certify the record brings the cause to this court for review.
Mr. Lee B. Kasson, Jr., for appellant.
Messrs. McCaslin, Imbus McCaslin and Mr. George C. Katsanis, for appellee.
The allegation in the answer "that plaintiff requested during the time said bleaching occurred that defendant's operator continue and complete the bleaching process on that day" is not an allegation of fact which in itself would show assumption of risk. Plaintiff was not advised of the length of time it would take to complete the process or that it was to be completed two days later; nor was she warned that to complete the process on the day it was commenced might result in serious burns or that her hair would fall out.
The allegations of the answer are not such that require plaintiff to file a reply. Lovell v. Wentworth, 39 Ohio St. 614; McDonald v. Haught, 10 Ohio St.2d 43. The judgment is reversed and the cause remanded.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, TROOP, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.
TROOP, J., of the Tenth Appellate District, sitting for MATTHIAS, J.