COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69014 WILLIAM DOWDELL, ET AL. : : ACCELERATED DOCKET Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION SHANE PULLING, ET AL. : : PER CURIAM Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 2, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-272050 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiffs-appellants: For defendants-appellees: STANLEY E. STEIN, ESQ. ROGER H. WILLIAMS, ESQ. STANLEY E. STEIN & ASSOC. CO. THOMAS M. COUGHLIN, JR., ESQ. 75 Public Square, Suite 714 WILLIAMS & SENNETT CO., L.P.A. Cleveland, Ohio 44113 126 W. Streetsboro St., #4 Hudson, Ohio 44236 - 2 - PER CURIAM: On June 24, 1993 a fire began in the appellees' bedroom, causing extensive damage to the upstairs portion of the two-family home. Appellants lived in the downstairs portion of the home. They suffered the loss of many of their possessions from the incident, through smoke and water damage. Appellants filed a complaint against the appellees on June 10, 1994 for recovery of their loss. Appellants believed that the window air conditioning unit in the bedroom was a factor in the fire. Because appellants could not specifically explain the cause of the fire they relied upon the legal doctrine of res ipsa loquitur to infer negligence on the part of appellees. Appellees filed a motion for summary judgment. Appellees argued in support of the motion that appellants produced no evidence of negligent care, operation or maintenance of the air conditioner in appellees' bedroom, which appellants alleged caused the fire. Annette Pulling stated in her affidavit that the air conditioning unit was maintained annually and nothing about the unit ever indicated that it had the potential to malfunction. Appellants' brief in opposition to the motion for summary judgment repeated the res ipsa loquitur theory and asserted that fires do not generally start absent negligence. A fire report was attached to the brief, supporting the assertion that the fire started in the area of the air conditioner. The trial court granted appellees' - 3 - motion for summary judgment. Appellants filed a timely appeal from the court's judgment. I THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT WHERE DEFENDANTS WERE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. Appellants argue that a logical inference of negligence could be premised upon the evidence presented. Fires do not normally occur without negligence, according to appellants' argument. We do not find appellants' argument to be well taken. Appellants had the burden to show under the theory of res ipsa loquitur that some instrumentality under appellees' control caused the fire, under circumstances which would support the inference of negligence. To apply res ipsa loquitur and establish the inference of negligence on the part of the defendant, a plaintiff must adduce evidence: (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. Hake v. Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, 66-67. "A Motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of the syllabus. Appellants failed to adduce any evidence that the fire occurred - 4 - under circumstances that in the ordinary course of events would not have occurred if ordinary care had been observed. Appellants presented evidence that the fire started somewhere in the vicinity of the air conditioner. Appellees stated that they maintained the unit once a year, prior to using it in the summer months. Appellees also claimed that the unit had never exhibited any kind of malfunctioning nor indicated that it had a potential to malfunction (i.e. smoking, making unusual noise, overheating, etc...). The assertion that appellants failed to adequately maintain or operate the air conditioner is simply a vague allegation. No specific facts are cited to support this assertion. Civ.R. 56(E) provides in pertinent part: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Appellants did not provide specific facts to show that a genuine issue for trial exists. Appellants' assignment of error is overruled and the court's decision to grant appellees' motion for summary judgment is affirmed. - 5 - It is ordered that appellees recover of appellants their 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. _________________________________ JAMES D. SWEENEY, PRESIDING JUDGE _________________________________ JAMES M PORTER, JUDGE _________________________________ ANN DYKE, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. .