COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69520 LORRAINE B. LOVSIN, ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : : OPINION J.C. PENNEY COMPANY, INC., ET AL.: : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: MAY 9, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-247277. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-appellant Lorraine B. Lovsin: Stanley S. Keller, Esq., and Joseph G. Ritzler, Esq., Keller and Curtin Co., L.P.A., 330 Hanna Building, 1422 Euclid Avenue, Cleveland, Ohio, 44115-1901. For Defendant-appellee J.C. Penney Company, Inc.: Alan B. Glassman, Esq., Law Offices of Jan A. Saurman, 14650 Detroit, #450, Lakewood, Ohio, 44107-9946. For Blue Cross & Blue Shield of Ohio: Mary Biacsi, Esq., 1040 The Leader Building, 526 Superior, Cleveland, Ohio, 44114-2803. For Cleveland Electric Illuminating Co.: Bari E. Goggins, Esq., and Sally L. Geib, Esq., Centerior Energy/CEI, 6200 Oak Tree Boulevard, #455, Independence, Ohio, 44131. (Continued on page ii) ii For Great Lakes Mall, Inc.: Louis R. Moliterno, Esq., and James A. Se #4, Hudson, Ohio, 44236. For Millar Elevator Service Co.: Philip J. Weaver, Jr., Esq., and T. Charles Cooper, Esq., Smith, Marshall & Weaver, 500 National City East 6th Building, 1965 East 6th Street, Cleveland, Ohio, 44114. - 2 - SWEENEY, JAMES D., J.: Plaintiffs-appellants Lorraine and Joseph Lovsin appeal from the trial court's decision to grant the separate summary judgment motions filed by the defendants-appellees J.C. Penney Company, Inc. (Penney's), Cleveland Electric Illuminating Co. (CEI), Millar Elevator Service Company (Millar), and Great Lakes Mall, Inc. (the Mall). Appellants filed this action to recover for injuries sustained by Lorraine Lovsin during a power outage which occurred while she was riding an escalator in Penney's at the Great Lakes Mall. Although the appellants opposed the appellees' motions for summary judgment, no evidentiary materials such as affidavits or expert reports were filed by the appellants. However, the transcripts of the depositions of Mrs. Lovsin; Steve Wickham, an 1 employee of Millar; Bernie Scott , the store manager of Penney's; Carl Bradshaw, the building supervisor for Penney's; and Dave Tirabasso, a supervisor at CEI, were filed with the court. Mrs. Lovsin stated in her deposition that on April 4, 1992, she and her husband entered the Penney's store at Great Lakes Mall. While Mr. Lovsin was in the men's department on the first floor, Mrs. Lovsin proceeded to the second floor in order to purchase a rug. After purchasing the rug, Mrs. Lovsin entered the down escalator in order to meet her husband on the first floor. When 1 The deposition transcript inadvertently listed Mr. Scott's first name as Barney. - 3 - she was not quite halfway down the escalator, the power went out in the entire store. Mrs. Lovsin was carrying her package in her right arm and held onto the hand rail of the escalator with her left hand. Mrs. Lovsin testified that she was jolted when the electricity went off and the escalator came to an abrupt stop; that she was "hanging on hard," and that had she not done so she "would have been on the floor on [her] face." (Lovsin Depo. T. 24.) Mrs. Lovsin stated that because the area of the escalator was very dark at first she remained still. After a few minutes a light was seen at the bottom of the escalator and by the door. At this time one of the sales associates approached and asked the customers to exit the store as quickly as possible. Mr. Lovsin was waiting for his wife near the bottom of the escalator and together they exited the store. As a result of the escalator's sudden stop and the jolt she received, Mrs. Lovsin stated that she sustained injures to her back and to her heart. Pursuant to contract, the escalator in the Penney's store was maintained by appellee Millar. Millar employee Steve Wickham, the person responsible for the maintenance of this particular escalator, testified at his deposition that he has worked for the same company for 28 years; that at present he maintains escalators, but that he was involved with the construction of this escalator when it was built; that his employer and the Mall have a maintenance contract and the terms of the contract provide that he - 4 - services the escalator in the Penney's store twice a month; that if there is a complaint it is made to his office by Great Lakes Mall; and that the bill is sent to the Mall. Mr. Wickham stated that between 1987 and 1992, he made other adjustments to the escalator at Penney's, such as adjusting the hand rail drive chain; that the escalator had stopped running in the past due to a rubber boot or a coin being caught in the comb teeth; that once a lower carriage microswitch tripped due to normal wear and tear; and that he could recall no other specific instances of the escalator in Penney's stopping. Mr. Wickham testified that the escalator is equipped with a braking device on the motor and that it is activated by pushing a button which stops the electrical current. Mr. Wickham explained that the brake is spring loaded, and is open when there is electrical power in the system. When the power is off, the brake automatically sets, and the escalator is stopped. The system is reactivated by a key switch. Mr. Wickham testified that Penney's has a key and that the Mall probably does not have such a key. Mr. Wickham stated that the last time he recalled working on the brakes was approximately eight years ago when he replaced cotter pins and that no work was performed on the brakes after the power outage of April, 1992. He also testified that there is no mechanism which would allow the escalator to keep running during a power outage. - 5 - During his deposition, Mr. Wickham was asked if the escalator comes to a sudden stop. After objection by counsel, Mr. Wickham responded that the stop is "fairly sudden" (Wickham Depo. T. 15). In his affidavit attached to the Millar motion for summary judgment, Mr. Wickham affirmed that: 8. In the case of an electrical outage, or whenever the electricity is cut-off to the escalator, the brake on the escalator is designed to bring the escalator to a stop in a smooth, stable but rapid manner. The brake is designed to stop the escalator smoothly and in a stable manner so passengers do not lose their balance and fall. The brake is designed to stop the escalator rapidly so that passengers do not collide with each other at the bottom of the escalator while exiting the escalator in the dark. 9. At all times relevant hereto, the escalator brake was working properly with no problems or defects and was working in a manner completely consistent with its design. Mr. Bernie Scott has been the store manager of Penney's since 1989. He testified at his deposition that Penney's leases its store from Great Lakes Mall, Inc. and that pursuant to the lease the Mall bears the responsibility of repairing and maintaining the escalator in the store. There is no sign on the escalator which notifies the public of the arrangement between Penney's and the Mall. Mr. Scott stated that there have been no unusual problems with the escalator while he has been the manager of the store. Mr. Scott was not in the store at the time the power went out in April, 1992. He recalled no other power outage since he has worked at the store. Mr. Scott testified that the maintenance on the escalator - 6 - is set up through the landlord and that neither he, nor his staff, oversee the work done by the contractor. No records would be kept by Penney's regarding the escalator. If the escalator at Penney's should stop working, Mr. Scott testified that the manager in charge of the store at the time would be responsible for contacting the Mall. This call, however, could be made by anyone who noticed the problem. In such a situation, customers would be directed to the elevator. Mr. Scott stated that Penney's has an auxiliary power supply for emergency lighting. Mr. Carl Bradshaw testified at his deposition that he has worked for Penney's for twenty years and that he has been the building supervisor for eight and one-half years. His responsibilities as building supervisor include keeping the building clean and reporting any problems to the Mall. If the escalator ceased to operate, he, his staff or one of the managers would report it to the Mall. Since he has held his position, the escalator has stopped "a couple of times over the last years" (Bradshaw Depo T. 4). When asked to specify what "couple" meant, he stated that he does not keep track. When asked for his best estimate, he was instructed by counsel not to estimate if he did not know. Mr. Bradshaw testified that the escalator stopped once; that he was not sure if it stopped twice; that he did not remember the last time it stopped; and that he did not remember what caused the problem. The only time he - 7 - remembered the escalators stopping due to a power outage was in either 1981 or 1982. Mr. Bradshaw stated that he has had no complaints made to him about the operation of the escalator and to his knowledge no one has ever been hurt. No records are kept regarding the escalators at all, not even records of when Millar services or repairs the escalator. Mr. Bradshaw testified that the repairman comes twice a month and has his own key to the room. The repairman does not consult with Mr. Bradshaw, but signs in and does his job on his own. Mr. Bradshaw was not in the store at the time Mrs. Lovsin was injured. At his deposition Mr. David Tirabasso testified that he is a supervisor at CEI "in charge of all the industrial install and maintenance work, residential install and maintenance work, stockroom activity and street lighting" for the geographic area encompassing "[Route] 528 to Madison to Route 306 in Mentor, south to Middlefield, and north till your hat floats." (Tirabasso Depo. T. 9.) Mr. Tirabasso has worked at CEI for twenty-seven years, and has been a supervisor for approximately fifteen of those years. Mr. Tirabasso stated that the Mall is fed by 13,200 volts of electricity from a CEI feeder. The vault from which the Penney's store is fed is located to the north of the center of Penney's. It is indoors in a section of the building. The Penney's vault is a room, approximately 10 x 16, and contains several transformers and several conductors which feed to the Penney's switch gear. There - 8 - are two big metal steel doors that are locked with a CEI lock to prevent access by anyone other than CEI personnel, no keys are provided to either Penney's or to the Mall, and the lock had not been cut. The vault is regularly checked and maintained by CEI. Mr. Tirabasso could recall only one incident or power outage occurring which involved the Penny's vault, and that occurred on April 4, 1992. Mr. Tirabasso stated that commercial buildings are responsible for furnishing their own emergency backup system, and that "most of them do" (Tirabasso Depo T. 27, 28.) He was specifically aware that hospitals and industrial customers generally have a backup system. When asked if retail customers had such systems he responded in the negative, but then qualified his answer by stating that K-Mart has a backup system. He also believed that some other retail customers have systems, but could not name the customers. In describing how a backup system works, Mr. Tirabasso stated that when the power goes off, the system initiates the generator automatically to turn power on and very little delay occurs. He was asked hypothetically whether or not there would be a delay if the Penney's store had had such a system. Mr. Tirabasso first responded "I can't answer that. I would guess not." (Tirabasso Depo T. 30.) When asked if it were possible that there would be no interruption in the escalator, he responded, "It's difficult for me to answer that because I really don't know how the escalator itself works." (Tirabasso Depo T. 31.) - 9 - Mr. Tirabasso testified that on April 4, 1992, Penney's experienced an outage. A piece of equipment was found burned up in the vault, and it was temporarily replaced the same day with permanent repairs being made the next day. Mr. Tirabasso stated that he did not absolutely know what caused the outage, but that his best guess was "that lightning struck the system somewhere and followed it into that piece of equipment." (Tirabasso Depo T. 35.) He believes it was a lightning strike due to the severe burn to the porcelain disk connect in the vault and because when the equipment was inspected, but no other problems surfaced. In their original complaint, the appellants asserted causes of action against Penney's and the Mall sounding in negligence, 2 premises liability and products liability . The appellants were granted leave to file an amended complaint in which they asserted a cause of action for negligence against appellee CEI. The appellants sought and were granted permission to file a second amended complaint which asserted a cause of action for negligence and products liability against Millar. In addition to various cross claims and counter claims filed amongst the parties, Blue Cross & Blue Shield of Ohio was granted permission to intervene. On January 31, 1995, the trial court granted the motion for summary judgment filed by Penney's. The court granted the motions for summary judgment filed by CEI, Millar, and the Mall on August 2 The appellants have assigned as error only the trial court's ruling on the issue of negligence, therefore negligence is the only issue considered by this court. - 10 - 8, 1995. In its order granting the motion for summary judgment filed by Millar, the court found that the scope of duty owed by an escalator maintenance contractor is limited by agreement or contract; that the appellants presented no evidence that Millar failed to exercise ordinary care in the performance of its obligations under the contract; and that res ipsa loquitur does not apply. The court ordered that there was no just reason for delay. As to appellee CEI, the trial court held that the appellants failed to present evidence to support an allegation that CEI negligently maintained its equipment, or that such negligent maintenance was the proximate cause of the injuries. The court held that res ipsa loquitur does not apply, and that there was no just reason for delay. In granting the motion for summary judgment filed by the Mall, the court held that the appellants failed to produce evidence that the Mall had control of the electrical room; that the Mall owed some or any duty of maintenance or repair of the electrical room; and/or that there were maintenance problems. The court further found that there was no expert evidence that a sudden stop is less safe than a gradual stop. It is from the rulings on the four motions for summary judgment that the appellant filed this appeal. The appellants set forth four assignments of error which will be considered together as they are all bound by common questions of law and fact. The first, second, third and fourth assignments of error: - 11 - I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE J.C. PENNEY COMPANY AS THE EVIDENCE PRESENTED BY PLAINTIFF REQUIRED THE ISSUE OF NEGLIGENCE BE SUBMITTED TO THE JURY. II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE GREAT LAKES MALL, INC. AS THE EVIDENCE PRESENTED BY PLAINTIFF REQUIRED THE ISSUE OF NEGLIGENCE BE SUBMITTED TO THE JURY. III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE MILLAR ELEVATOR SERVICES AS THE EVIDENCE PRESENTED BY PLAINTIFF REQUIRED THE ISSUE OF NEGLIGENCE BE SUBMITTED TO THE JURY. IV. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE CLEVELAND ELECTRIC ILLUMINATING COMPANY AS THE EVIDENCE PRESENTED BY PLAINTIFF REQUIRED THE ISSUE OF NEGLIGENCE BE SUBMITTED TO THE JURY. In the first assignment of error, the appellant argues that the trial court erred when it granted the motion for summary judgment filed by Penney's. While the appellants conceded that Penny's does not own, control or maintain the escalator, they nonetheless posit that Penney's failed in its duty to warn its business invitees of the dangers on the premises. The appellants also argue that the policy of the store after an escalator ceases to operate presents a deliberate attempt by Penney's to pass the responsibility for the safety of the customer to the landlord. The appellants point to the lack of record keeping regarding the escalator malfunctions as an indication of the store's attempt to shirk its responsibility for customer safety. Finally, the appellants point to the inadequate sign on - 12 - the escalator which does not notify the customer of the company in charge of maintaining the device. Appellee Penney's argues that the appellants have failed to provide evidence that the escalator malfunctioned at any time, past or present. The appellee asserts that the escalator stopped due to a power outage that was not within the control of Penney's and that the appellants failed to establish any conduct which was the proximate cause of appellants' injuries. Appellee Penney's also states that the appellants failed to raise any of the arguments presented on appeal before the trial court. While it is true that, as to appellee Penney's, the appellants raised only the issue of res ipsa loquitur in their brief in opposition to the motion for summary judgment, the Supreme Court has held that the doctrine of res ipsa loquitur does not alter the nature of an appellant's negligence claim; it is merely a method of proving the defendant's negligence through the use of circumstantial evidence. Jennings Buick, Inc. v. Cincinnati (1980), 63 Ohio St.2d 167. In this appeal, the appellants have asserted that Penney's was negligent, thus, this court will entertain the appellants' arguments. In the second assignment of error the appellants argue that the trial court erred in granting the motion for summary judgment filed by the Mall. They argue that the Mall was a common carrier exercising exclusive control over the operation and maintenance of the escalator; that the Mall should not be able to shift its - 13 - responsibility to Millar; and that the Mall failed to take reasonable steps to insure the safety of those who ride the escalators when it failed to provide an emergency backup system which may have prevented the appellant's injuries. Further the appellants argue that the escalator is in a common area, and as the landlord, the Mall owed a duty of reasonable care to the tenant and to the tenant's guest. In the third assignment the appellants argue that the court erred in granting Millar's motion for summary judgment. The appellants point out that in his deposition Mr. Wickham stated that the escalator would come to a "fairly sudden stop" and in his affidavit he stated that the escalator is designed to stop in a "smooth, stable, but rapid manner." The appellant finds these two descriptions to be in conflict, and asserts that a question of fact has been created. In the fourth assignment of error, the appellant argues that the court erred in granting the motion for summary judgment filed by CEI. The appellant argues that CEI failed to monitor the power vaults at Penney's and that there is no automatic alarm which advised CEI that there is an imminent problem in the vault. The appellants also argue that there is question of fact as to whether or not the lightning arrestors were functioning properly during the power outage which injured Mrs. Lovsin. In each assignment the appellant contends that the trial court erred in granting the appellees' motions for summary judgment. The - 14 - test for granting a motion for summary judgment is set forth in Civ.R. 56 and in numerous cases interpreting the rule. The law is clear that: Summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from the evidence that reasonable minds can come but to one conclusion; and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Turner v. Turner (1993), 67 Ohio St.3d 337, citing to Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, and Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. Finally, in the instant case it cannot be stressed too much that the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108 as modified by Dresher v. Burt (1996), 75 Ohio St.3d 280, 295. It should be noted that the Supreme Court has held that a store which operates a moving stairway, known as an escalator, is a common carrier and owes a duty to exercise the highest degree of care to which the situation is reasonably susceptible. The May Department Stores Co. v. McBride (1931), 124 Ohio St. 264. The appellants have asserted that the appellees, individually and collectively, negligently caused the injuries of Mrs. Lovsin. The Supreme Court has held that in order to establish actionable negligence, one must show the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom. Jeffers v. - 15 - Olexo (1989), 43 Ohio St.3d 140. The rule of proximate cause requires that the injury sustained shall be the natural and probable consequence of the negligence alleged; that is, such consequences as under the surrounding circumstances of the particular case might, and should have been, foreseen or anticipated by the wrongdoer as likely to follow his negligent act. In Wise v. Timmons (1992), 64 Ohio St.3d 113, the court held that in Ohio, negligence is never presumed. In an action based on negligence, the presumption exists that each party exercised ordinary care. Such a presumption prevails until rebutted by evidence to the contrary. Id. Where res ipsa loquitur is not involved, negligence is never presumed from the mere fact of an accident and resulting injury. The Wise Court held that specific acts or omissions indicating failure on the part of the defendant to exercise due care must be alleged as the direct and proximate cause of the injury and the plaintiff bears the burden of proving the same. Further, it has been held that a defendant is not liable to one injured as the result of some unusual occurrence that cannot fairly be anticipated or foreseen and is not within the range of reasonable probability. Jeanne v. Hawkes Hosp. of Mt. Carmel (1991) 74 Ohio App.3d 246. This court is also cognizant that res ipsa loquitur is a rule of evidence which permits the trier of fact to draw an inference of negligence from the surrounding circumstances. The weight of the - 16 - inference, as well as the weight of the explanation offered to meet that inference, are questions for the trier of fact to determine. Walker v. Mobil Oil Corp. (1976), 45 Ohio St.2d 19. However, to warrant application of the rule there must, 1) be evidence which establishes that the instrumentality which caused the injury was under the exclusive management and control of the defendant and, 2) the accident must have occurred under circumstances such that in the usual course of events, would not have occurred had ordinary care been observed. Id. Ohio recognizes an exception to the application of the requirement of exclusive management and control. Where there are multiple defendants and they are in collective, concurrent control of the injury-causing instrumentality at the time of the accident, res ipsa loquitur may be applied. Shields v. King (1973), 40 Ohio App.2d 77. Although quite different factually, at least one court has held that the doctrine of res ipsa loquitur is not applicable in a situation where the cause of the personal injury is not an unexplained circumstance. See Moore v. Ohio Dept. of Rehab. & Corr. (1993), 89 Ohio App.3d 107, 112. The situation in the case sub judice is plainly not one of unexplained circumstances which would warrant the application of the doctrine. The undisputed evidence is that Mrs. Lovsin was injured when the escalator on which she was riding stopped due to an outside event or lightning striking the CEI electrical system. - 17 - There is no need for any inference of negligence under these circumstances. For this reason alone, the trial court correctly determined that the doctrine of res ipsa loquitur was not applicable. However, even assuming that the cause of Mrs. Lovsin's injuries resulted from unexplained circumstances, and assuming that Penney's, the Mall, and Millar jointly were in control of the escalator, the appellants have also failed to submit any evidence that the accident occurred under circumstances such that in the usual course of events, would not have occurred had ordinary care been observed. Even using the heightened burden of the highest standard of care as required by The May Department Stores Co., 3 supra, the appellants' failed to meet the requirements of Wing, supra. No evidence was submitted which would indicate how either Penney's, the Mall or Millar could have lessened the effect of, prevented, or predicted that an outside event, such as lightning, would cause a power outage and the resultant interruption of the electrical distribution system. Although the appellants contend that CEI could have lessened the effect of the outside event, once again, they have failed to 4 meet their burden under Wing, supra, when they failed to submit evidence supporting such an allegation. Further, they submitted no 3 The modification in Dresher v. Burt (1996), 75 Ohio St.3d 28 to Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, does not affect the application of Wing in the case sub judice. 4 See Footnote 2, supra. - 18 - evidence which suggests even remotely that CEI exercised any control over the escalator. It is clear that the trial court did not err in refusing to apply the doctrine of res ipsa loquitur to the facts presented in this appeal. As to any general negligence allegation it will suffice to say that there is no question, but that the deposition testimony and the affidavits before the court, and common sense, clearly indicate that escalators will cease to function when there is a power outage. It is also clear from the record that a power outage did indeed cause the escalator in Penney's to stop on April 4, 1992. Logically, it must be concluded that the proximate cause of the injuries to Mrs. Lovsin were caused by a power outage which interrupted the electricity to the escalator. Applying this to the case sub judice, the appellants failed in their burden to show that any negligent acts or omissions by the appellees, individually or collectively, proximately caused the injuries suffered by Mrs. Lovsin. There is no evidence that an auxiliary power system is standard in the industry or would have prevented the accident; there is no evidence that posted signs would have had any effect whatsoever on this incident; there is no evidence that the escalator malfunctioned; there is no evidence that the maintenance on the escalator was insufficient or negligently performed; there is no evidence that CEI needed or should have had different equipment or what that equipment should have been; in short there is no evidence presented by the - 19 - appellants which indicated negligence on the parts of any of the appellees. In fact, it appears that this accident was just that, an accident, an unusual occurrence which could not fairly have been anticipated or foreseen within the range of reasonable probability. The appellants' first, second, third, and fourth assignments of error are overruled. Judgement affirmed. - 20 - 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. Exceptions. LEO M. SPELLACY, C.J., and JAMES M. PORTER, J., CONCUR. JAMES D. SWEENEY 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 .