COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59242 KATE ZADRAVEC : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION DAVE'S EAGLE MARKET, INC. : : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 24, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. 124004 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: RICHARD A. OVIATT 950 Standard Building Cleveland, Ohio 44113-1701 For Defendant-Appellee: TIMOTHY P. McCORMICK Hermann, Cahn & Schneider 1301 East 9th Street, Suite 500 Cleveland, Ohio 44114 - 2 - KRUPANSKY, C.J.: Plaintiff filed a personal injury complaint against defendant supermarket in the Cuyahoga County Court of Common Pleas. At the conclusion of the jury trial, a verdict was returned in favor of the defendant. Plaintiff timely appeals on the trial court's failure to charge the jury on the doctrine of res ipsa loquitur, citing one assignment of error. The relevant facts follow. Plaintiff walked with her aunt to defendant grocery store to do some shopping. While there, plaintiff, shopping alone, decided to purchase some laundry bleach. The bottles of bleach were located on portable shelving; i.e., shelving not permanently affixed to the wall. The bottles were displayed in the following manner: gallon bottles were stacked nine across the front row on the bottom shelf, three to four bottles "deep," then a board of rigid "marlite" was placed on top, more bottles were stacked on the marlite, then another board was added, with a third "layer" of bottles on top. This was the only area in the store with portable shelving. Plaintiff alleges she reached for a bottle on the bottom layer; when she pulled it out, shelving and bottles fell, hitting her in the right foot. A stock person cleaned up the mess, and plaintiff continued shopping. She rejoined her aunt for the walk home; pain in her foot increased, and plaintiff sought medical care. She subsequently filed an action against the supermarket, alleging negligence in the placement and - 3 - maintenance of the shelving. Trial was by jury. Plaintiff requested a jury instruction on the doctrine of res ipsa loquitur, which was denied by the trial court. After deliberation, the jury returned a verdict for the defendant. Plaintiff cites the following sole assignment of error: WHETHER THE TRIAL COURT ERRONEOUSLY DENIED APPELLANT'S SPECIAL INSTRUCTION TO THE JURY APPLICABLE TO RES IPSA LOQUITUR. This assignment of error is without merit. Plaintiff argues that the trial court should have provided the jury an instruction regarding the doctrine of res ipsa loquitur. Regarding this doctrine, the Supreme Court of Ohio has stated as follows: *** [T]he rule of res ipsa loquitur is a rule of evidence which permits the jury, but not the court in a jury trial, to draw an in- ference of negligence where the instrumental- ity causing the injury is under the exclusive management and control of the defendant and an accident occurs under such circumstances that in the ordinary course of events it would not occur when ordinary care is observed. It is an evidential inference, not controlling upon the jury but to be considered by it under proper instruction by the court. Fink v. The New York Central Railroad Co. (1944), 144 Ohio St. 1, 9. (Emphasis added.) The court stressed the following: *** [T]he doctrine was applied to railroad derailment cases and finally in many juris- dictions to other classes of tort actions, provided always that the instrumentality - 4 - which caused the injury was under the ex- clusive management and control of the defendant and that the injury occurred under such circumstances as could give rise to the conclusion that the injury would not have occurred if ordinary care had been exercised. Id., at 6. (Emphasis added.) The rationale for the rule was stated thusly: The particular justice of the doctrine rests upon the foundation that the true cause of the occurrence whether innocent or culpable is within the knowledge or access of the defendant and not within the knowledge or access of the plaintiff. Id., at 5. (Emphasis added.) The court has further held as follows: In Ohio, it is well established that the doctrine of res ipsa loquitur is a rule of evidence which permits the trier of fact to draw an inference of negligence on the part of the defendant from the circumstances surrounding the injury to plaintiff; the weight of that inference, as well as the weight of the explanation offered to meet such inference, being for the determination of the trier of fact. To warrant application of the rule, ***, there must be evidence which establishes that (1) the instrumentali- ty causing the injury was under the exclusive management and control of the defendant, and (2) that the accident occurred under such circumstances that in the usual course of events it would not have occurred if ordinary care had been observed. (Citations omitted.) (Emphasis added.) Walker v. Mobil Oil Corp. (1976), 45 Ohio St. 2d 19. Plaintiff must therefore present sufficient evidence on the control of the defendant and the unusual circumstances of the accident in order to have the trial court submit the doctrine's - 5 - inference of negligence on the part of the defendant to the jury. Feterle v. Hutton (1971), 28 Ohio St. 2d 94; Busse v. Grand Finale, Inc. (1981), 3 Ohio App. 3d 65. In the case sub judice, the plaintiff failed to provide sufficient evidence. The evidence tended to show that defendant made a conscious choice to use portable shelving in this particular section of the store. However, plaintiff provided insufficient evidence to show that defendant had "exclusive control" of the instrumentality and that the accident must have happened "irrespective of any voluntary action on plaintiff's part." Schafer v. Wells (1961), 171 Ohio St. 506. The situation in the case sub judice is similar to that faced by the court in Warner v. Interstate Theaters, Inc. (1952), 73 Ohio Law Abs. 249. In that case, the plaintiff was injured when a swinging restroom door fell on her. The court of appeals affirmed the trial court's ruling that the doctrine of res ipsa loquitur was not applicable to the case. The court reasoned thusly: [The doctrine] does not apply where an unexplained accident might have been caused by plaintiff's negligence, or been due to one of several causes, for some of which the defendant is not responsible. *** The operation of such doors is not within the exclusive control of the owner of the building or proprietor of the store. Customers and patrons take a very distinct part in their operation and are chargeable with the exercise of ordinary care in their use. Injury may occur in their operation from a lack of such care on the part of the persons who use them, and for whose - 6 - negligence the owner or proprietor would be in no wise responsible. (Emphasis added.) Hence, in the case sub judice, the evidence showed the following: (1) defendant had the shelving set up for several years prior to the accident; and (2) the area was monitored often; but (3) laundry bleach was a "fast selling" item; (4) there were many customers in the store that day; (5) some bottles were missing from the shelves; and (6) plaintiff pulled a bottle of bleach from the bottom shelf. This evidence is thus not sufficient to show the requisite "exclusive control" in order for the doctrine of res ipsa loquitur to apply. The plaintiff failed in her proof that a charge to the jury on res ipsa loquitur should be given. Plaintiff argues she is entitled to the charge because Mr. Salzman, the store owner, testified the shelving was under defendant's "exclusive control." However, the totality of the evidence negates this assertion. Plaintiff's own testimony revealed the accident occurred only after plaintiff pulled a bottle of bleach from the bottom shelf of the display; thus negating one element necessary to sustain a charge on res ipsa loquitur; viz., the instrumentality of the injury must be under the exclusive management and control of the defendant. There was also insufficient evidence that the accident was so unusual that it "would not have happened in the ordinary course of events if defendant had not been negligent." Walker v. Mobil Oil Corp., supra. On this issue, plaintiff produced no - 7 - witnesses to the accident; she did not even mention it to anyone at the time of the occurrence. Furthermore, plaintiff did not report the incident to the store owner, even though she had known him for many years. Plaintiff is the only one who testified that the accident happened in the manner plaintiff claimed; there was no corroborating evidence as to the manner in which the accident occurred. In the case sub judice, the evidence presented by the plaintiff tended to show merely that plaintiff was a business invitee of the defendant. As such, the defendant had a duty of ordinary care to insure her safety. Presley v. Norwood (1973), 36 Ohio St. 2d 69. *** [I]t is well settled that an occupier of premises for business purposes is not an insurer of the safety of his business invitees while they are on those premises. (Citations omitted.) Thus, where an occupier of premises for business purposes does not, and could not in the exercise of ordinary care, know of a danger which causes injury to his business invitee, he is not liable therefor. Howard v. Rogers (1969), 19 Ohio St. 2d 42. Without sufficient evidence to show defendant's exclusive control and the unusual circumstances of the accident, the trial court properly excluded a jury instruction on the doctrine of res ipsa loquitur. Seitz v. Colony Recreation Center (1949), 151 Ohio St. 503. - 8 - Accordingly, plaintiff's sole assignment of error is overruled. Judgment affirmed. - 9 - It is ordered that appellee(s) recover of appellant(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENEY, J., and JAMES D. SWEENEY, J., CONCUR CHIEF JUSTICE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .