Summary
finding res ipsa loquitur inapplicable when testimony illustrated existence of equally possible cause
Summary of this case from Degen v. MannOpinion
No. 87-07011.
Decided September 5, 1989.
Seymour Gross, for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, and Eric A. Walker, for defendant Ohio Department of Rehabilitation and Correction.
Dennis P. Zapka, for third-party defendant Hawthorne Electric Corporation.
On June 11, 1987, plaintiff filed a complaint in this court alleging that she had suffered physical injuries due to a slip-and-fall on defendant's premises. Subsequent to the mistrial declared at the initial trial on October 14, 1988, defendant's third-party complaint was accepted for filing and service on October 19, 1988. Defendant's third-party complaint is an indemnification/contribution action. All causes came on for trial on July 31, 1989, on the issues of liability and damages. The parties presented evidence, testimony and arguments as to the facts and issues involved herein. Upon consideration of the record, the court renders the following findings of fact and conclusions of law.
Findings of Fact
(1) On November 3, 1986, plaintiff, Karen Ann Harris, was an inmate under the lawful custody and care of the defendant pursuant to R.C. 5120.16. Plaintiff was incarcerated in the Ohio Reformatory for Women ("ORW") at Marysville, Ohio.
(2) On November 3, 1986, plaintiff, along with other inmates and a corrections officer, proceeded from the admissions building to the infirmary on a concrete walkway at ORW.
(3) While traversing the grounds, plaintiff stepped on a manhole cover, positioned in the middle of the walkway. The cover "flipped up," causing her to fall and twist her body in a manner producing pain in her legs and lower back. Plaintiff was then placed on a stretcher and taken to the infirmary.
(4) The manhole cover is designed to have a tight fit if placed correctly on the manhole. In effect, the cover is locked in place when it is properly seated. Defendant knew that if the cover was not secured on the manhole it would tend to "spin" when someone stepped on it.
(5) Subsequent to plaintiff's fall, her lower back caused her pain and she also suffered muscle spasms. Following plaintiff's release from ORW she sought further care at a hospital and from Dr. Michael DiCello, a physician recommended to her by her attorney. Treatment consisted primarily of rest, medication and moist compresses.
(6) Plaintiff had experienced no prior lumbar spine problems.
(7) Due to her injuries plaintiff was unable to seek employment for approximately two months after her release from ORW in 1987. She has been actively employed on a fairly regular basis since that time.
(8) At the time of plaintiff's mishap third-party defendant, Hawthorne Electric Corporation ("Hawthorne"), was an independent contractor performing electrical services at defendant's facility, pursuant to an agreement with the Ohio Department of Administrative Services.
Conclusions of Law
Plaintiff contends that defendant, through its agents, was negligent because the manhole cover was not properly maintained, i.e., was not secured, and such inaction was the direct and proximate cause of her injuries when she stepped on the loose cover and fell. The plaintiff was walking on the defendant's grounds when she stepped on the manhole cover and was injured; therefore, she alleges that the defendant had exclusive control and maintenance of the area in question and owed her a duty of reasonable care.
It is clear in Ohio that the essential elements of negligence are: (1) a duty of care owing to the plaintiff; (2) a breach of that duty by a negligent act or omission; and (3) an injury proximately resulting from such breach. 70 Ohio Jurisprudence 3d (1986) 46, Negligence, Section 9; Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 21 O.O.3d 177, 423 N.E.2d 467; Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 47 O.O.2d 282, 247 N.E.2d 732.
Plaintiff's status sub judice as a prisoner under defendant's custody does not lessen defendant's duty of ordinary care in the maintenance of the premises of ORW. See Clemets v. Heston (1985), 20 Ohio App.3d 132, 20 OBR 166, 485 N.E.2d 287; Jenkins v. Krieger (1981), 67 Ohio St.2d 314, 21 O.O.3d 198, 423 N.E.2d 856.
Plaintiff is unaware of the circumstances that led to the manhole cover being in an unsecured position; hence, she offered no direct evidence on the issue. She contends that such an episode would not occur in the ordinary course of events unless the defendant's agents acted in a negligent manner. Plaintiff thereby asserts that the doctrine of res ipsa loquitur is applicable to support her allegations that the defendant breached its duty of care. The doctrine warrants an inference of negligence; however, such inference may always be rebutted by the defendant. Taxicabs of Cincinnati, Inc. v. Kohler (1959), 111 Ohio App. 225, 12 O.O.2d 366, 165 N.E.2d 244, syllabus.
It is axiomatic that res ipsa loquitur is a rule of evidence, not a rule of substantive law, and the court must analyze such evidence, along with all the other evidence offered in a case, to determine liability. Hake v. George Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, 66, 52 O.O.2d 366, 366-367, 262 N.E.2d 703, 705.
"To warrant application of the rule a plaintiff must adduce evidence in support of two conclusions: (1) That the instrumentality causing the injury was, at the time of the injury, or at the time of the creation of the condition causing the injury, under the exclusive management and control of the defendant; and (2) that the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. [Citations omitted.] Whether sufficient evidence has been adduced at trial to warrant application of the rule is a question of law to be determined * * * by the trial court * * *." Id., 23 Ohio St.2d at 66-67, 52 O.O.2d at 367, 262 N.E.2d at 705. See, also, 70 Ohio Jurisprudence 3d (1986) 300-301, Negligence, Section 159.
Therefore, the court is required to consider the totality of the circumstances surrounding the situation to determine if res ipsa loquitur has been properly invoked. See Howard v. Pennsylvania RR. Co. (1930), 43 Ohio App. 96, 182 N.E. 663.
The court has reviewed the record and the applicable law and is of the opinion that the facts do not warrant the application of said doctrine. Defendant offered sufficient evidence to rebut the evidentiary inference provided by the doctrine and res ipsa loquitur shall not be used to support plaintiff's allegations of negligence. The plaintiff failed to demonstrate that the instrumentality (manhole cover) causing the injury was under the exclusive management and control of the defendant at the time of the accident. Testimony at trial revealed that the accident scene was accessible to other persons besides the defendant. Thus, the court can not reasonably find that one of the probable causes is more likely than the other. See Jennings Buick, Inc. v. Cincinnati (1980), 63 Ohio St.2d 167, 17 O.O.3d 102, 406 N.E.2d 1385; Sigmon v. Bullitt (1987), 39 Ohio App.3d 116, 529 N.E.2d 1388. This finding strictly relates to the fact that the manhole cover was out of its proper position and does not alter the defendant's common-law obligation to provide a safe walkway.
Testimony at trial revealed that defendant knew that this specific manhole cover was hazardous when it was not properly secured. When the cover was not tight it would tend to "spin" when a person stepped on it. Steven Kreis, the maintenance superintendent at ORW, stated that some of his fellow workers experienced such a problem in the past. However, defendant did nothing to alleviate the hazardous situation. It was a known problem, yet defendant failed to act to ensure that the cover would be tightly closed after it was removed and replaced. The foregoing discussion leads to scrutiny of the issue of foreseeability.
"The doctrine of reasonable anticipation or foreseeability of the consequences of one's negligent acts is clearly a part of the negligence law of Ohio. Thus, foresight, not retrospect, is the standard of diligence. To be liable in negligence, one must be guilty of something done or left undone with knowledge, or what is legally tantamount to knowledge, of the situation. Fault on the part of the defendant is to be found in action or nonaction, accompanied by knowledge, actual or implied, of the probable results of his conduct; and a person's liability for his acts depends upon their tendency under the circumstances as they are known or should be known to him. The question of negligence is to be determined by the consideration whether or not a party has guarded against those things which he might reasonably have had cause to anticipate. Although, where it is found that any unreasonable risk of danger should have been foreseen, the practicability of things the defendant might have done to avoid the risk should be taken into account. There is no actionable liability for negligence unless some injury resulting therefrom could reasonably have been foreseen in the light of attending circumstances. In other words, damages for an injury resulting from a negligent act of the defendant may be recovered if a reasonably prudent and careful person should have anticipated, under the same or similar circumstances, that injury to the plaintiff or to those in a like situation would probably result. * * *" (Footnotes omitted and emphasis added.)
70 Ohio Jurisprudence 3d (1986) 49-50, Negligence, Section 11. See, also, Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 180-181, 472 N.E.2d 707, 710.
The court is of the opinion that it was more probable than not that an accident such as plaintiff's was to be reasonably anticipated. The evidence demonstrates that the defendant was aware of the potential for harm under the circumstances, but failed to enlist effective preventative measures. Since there was a known risk attendant to the manhole cover, the defendant had the duty to take steps to alleviate the danger or provide reasonable warning of the risk. Performance of this duty would require periodic inspections of the cover. In view that there were nonemployee workers such as Hawthorne on the grounds performing services for defendant, defendant should have acted to provide a safe area by guarding against the manhole cover becoming loose. Defendant failed to eliminate the risk involved, a risk of which it possessed superior knowledge.
Upon review of the evidence, and in view of the above analysis, the court finds that the totality of the evidence demonstrates that defendant breached the duty of ordinary care owed to plaintiff. The evidence shows that the defendant's failure to act proximately caused the plaintiff's injuries. In addition, the court finds that plaintiff did not act in a manner which would constitute contributory negligence.
Defendant filed a third-party action against Hawthorne, an independent contractor doing business on the defendant's property. Defendant contends that it is entitled to indemnification or contribution from Hawthorne. The court finds that the defendant failed to show by a preponderance of the evidence that Hawthorne was performing work in or around the area in question on November 3, 1986. In fact, the defendant failed to show that an agent of Hawthorne ever used the particular manhole at issue. Therefore, the court finds that the defendant has not proven that Hawthorne is obligated for any of the damages to be assessed in plaintiff's favor. Accordingly, defendant's third-party complaint is hereby dismissed.
In an effort to determine an amount to effectively compensate the plaintiff in this case, the court has considered the extent of plaintiff's injuries, the pain and suffering experienced by her, the necessary medical expenses incurred as a result of the aforementioned incident, and the long-term effect of the injuries. It is the determination of this court that the plaintiff has shown by a preponderance of the evidence that she has suffered damages in the amount of $2,200. Accordingly, judgment is rendered for said amount in plaintiff's favor.
Judgment accordingly.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.