Gallagher v. Cleveland Browns Football Co.
659 N.E.2d 1232, 74 Ohio St. 3d 427 (1996)
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Rule of Law:
A defendant waives the defense of primary assumption of risk if it is not raised at any point before or during trial, and is instead asserted for the first time in a post-verdict motion for judgment notwithstanding the verdict.
Facts:
- John E. Gallagher was a professional sports photographer working on the sidelines of Cleveland Municipal Stadium.
- Gallagher was assigned to photograph a pre-game warm-up session for a Cleveland Browns football game.
- During the warm-up, two Browns players were participating in a fan-interaction activity when they ran out of bounds from the end zone.
- One of the players collided with Gallagher, who was kneeling to take photographs.
- As a result of the collision, Gallagher sustained serious injuries.
Procedural Posture:
- Gallagher sued the Cleveland Browns and others in the trial court for negligence.
- The Browns filed an answer asserting a generic affirmative defense of 'assumption of risk'.
- The case proceeded to a jury trial.
- The jury returned a verdict for Gallagher, finding the Browns negligent and Gallagher 35% contributorily negligent.
- After the verdict, the Browns filed a motion for judgment notwithstanding the verdict (JNOV), arguing for the first time that the doctrine of primary assumption of risk barred Gallagher's claim entirely.
- The trial court denied the Browns' JNOV motion.
- The Browns, as appellants, appealed to the intermediate court of appeals.
- The court of appeals reversed the trial court's decision, holding that the JNOV motion was sufficient to raise the defense.
- Gallagher, as appellant, appealed that decision to the Supreme Court of Ohio.
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Issue:
Does a defendant waive the defense of primary assumption of risk by failing to raise it at any point before or during the trial, and instead asserting it for the first time in a motion for judgment notwithstanding the verdict?
Opinions:
Majority - Alice Robie Resnick, J.
Yes. A defendant waives the defense of primary assumption of risk by failing to raise it until after a jury has returned a verdict. Primary assumption of risk is a legal defense asserting the defendant owed no duty to the plaintiff, and as a question of law, it must be decided by the court. By failing to raise this 'no duty' argument in pre-trial motions, the trial brief, or a motion for a directed verdict, the defendants conceded that they owed a duty and strategically chose to rely on the fact-based defense of implied assumption of risk for the jury to consider. Allowing a defendant to raise a dispositive issue of law for the first time after an unfavorable jury verdict would undermine the fundamental trial structure where the judge decides legal issues before the jury decides factual ones.
Dissenting - Wright, J.
No. A defendant does not waive the defense of primary assumption of risk by raising it for the first time in a motion for judgment notwithstanding the verdict. Because primary assumption of risk is a pure question of law for the court, its timing in relation to the jury's fact-finding role is irrelevant. There is no rule requiring a legal defense to be raised on summary judgment or directed verdict to be preserved for a motion for judgment notwithstanding the verdict. The defendants' choice to reserve this legal argument until after the verdict was a permissible tactical calculation that should not be considered a waiver.
Analysis:
This decision establishes a critical procedural rule in Ohio regarding the waiver of affirmative defenses, specifically primary assumption of risk. It effectively creates a 'use it or lose it' standard, preventing defendants from strategically withholding a dispositive legal argument while they take their chances with a jury on factual grounds. The ruling reinforces the distinct roles of the judge (as arbiter of law) and the jury (as finder of fact) and promotes judicial efficiency by requiring that purely legal, case-ending issues be raised before the jury deliberates. This precedent forces defendants to commit to their legal theories early in the litigation process, ensuring the plaintiff has fair notice and the trial proceeds in a logical sequence.
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