COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71813 BERNARD SCHILLO, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION G. SERVICES INCORPORATED, ET AL.: : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION July 31, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-300977 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: ANTHONY L. ANIA (#0055161) DONALD E. CARAVONA & ASSOC. 1900 Terminal Tower Cleveland, Ohio 44113 For Defendant-Appellee, G. Services, Inc., et al.: MARK R. CHULICK (#0022168) KUEPPER, WALKER, HAWKINS & CHULICK 480 Skylight Office Towers 1660 West Second Street Cleveland, Ohio 44113 (CONTINUED ON NEXT PAGE) For Defendant-Appellee, General Elevator: JILL T. O'SHEA (#0034692) RENDIGS FRY KIELY & DENIIS 900 Fourth & Vine Tower Cincinnati, Ohio 45202 2 For Defendant-Appellee, General Elevator Company: PETER L. NEY (#0039284) RENDIGS FRY KIELY & DENNIS 900 Fourth & Vine Tower Cincinnati, Ohio 45202 SPELLACY, J.: Plaintiffs-appellants Bernard and Jean Schillo appeal the judgment of the trial court granting summary judgment in favor of defendant-appellee, G. Services, Inc. ( G. Services ), and defendant-appellee, General Elevator Company, Inc. ( General Elevator ). Appellants assign the following error for our review: 3 THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS. Finding appellants' appeal to lack merit, the judgment of the trial court is affirmed. I. The present case is a refiling of a case that was previously dismissed, without prejudice, by appellant Bernard Schillo. On January 2, 1996, appellants filed a five-count complaint against G. Services, General Elevator, John Doe Manufacturer and John Doe Maintenance. On September 13, 1996, G. Services filed its motion for summary judgment and, on October 1, 1996, General Elevator filed its motion for summary judgment. On October 15, 1996, appellants filed their motion in opposition to both motions for summary judgment. On November 22, 1996, the trial court granted the summary judgment motions of G. Services and General Elevator. II. On June 18, 1992, appellant Bernard Schillo was a passenger in an elevator located in the Frank J. Lausche Office Building, located at 615 W. Superior Ave., Cleveland, Ohio. While appellant Bernard Schillo was a passenger in the elevator, he was injured when the doors of the elevator closed upon him. G. Services was employed as the property manager of the Frank J. Lausche Office Building at the time of appellant Bernard Schillo's accident. James Daymut, the former property manager for G. Services, testified that G. Services did not retain exclusive 4 control over the elevator which appellants contend injured Bernard Schillo, nor was G. Services responsible for any mechanical work to be performed on the elevators. General Elevator, through a maintenance contract which it had signed with Ohio Building Authority, was responsible for maintaining and repairing the elevators at the Frank J. Lausche Office Building. Pursuant to the written maintenance agreement, General Elevator's service mechanic examined the elevators on a regular basis. In addition to the regularly scheduled maintenance examinations, General Elevator was obligated to promptly respond to any reported elevator problems. On June 18, 1992, after receiving a service call regarding a problem with elevator #4, General Elevator inspected and checked the elevator and determined that the elevator had been operating properly. General Elevator made no repairs on elevator #4 at that time. III. In their sole assignment of error, appellants contend that the trial court erred in granting summary judgment in favor of G. Services and General Elevator. The 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 to but one conclusion; and 5 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. Lovsin, et al. V. J.C. Penney Company, Inc., et al. (May 9, 1996), Cuyahoga App. No. 69520, unreported, citing to Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. Initially we will address appellants' assignment of error as it relates to their negligent maintenance claim against General Elevator. The existence of a Service Contract and the terms of the Contract itself are not at issue. The Contract reads, in relevant part, as follows: The Contractor [General Elevator] will be responsible for regular, systematic execution of work items to include, but not limited to, the following: The complete maintenance of elevator systems in the Lausche Building. * * * The maintenance service under this contract shall provide a constant high quality service to properly protect all elevator/escalator equipment from deterioration and to provide constant peak performance of all the elevators, resulting in a minimum of down-time for any portion of the systems. * * * a. The Contractor shall make regularly scheduled inspections and adjustments to the elevator systems * * *. * * * c. The Contractor shall make all repairs necessary as disclosed by the aforementioned inspections or those of other Contractor employees, the Ohio Building Authority, or their appointed representative, or joint inspection by same. * * * 6 i. The Contractor shall not be required by this agreement, except as herein noted, to make renewals or repairs necessitated by proven negligence or misuse of the equipment by persons other than the Contractor, his representatives and employees. * * * In the present case, appellant's claim against General Elevator sounds in negligence. In order to prevail in a case pled in negligence, appellants are required to demonstrate that General Elevator owed appellant Bernard Schillo a duty and that General Elevator breached that duty. Banks v. Otis Elevator, Co., et al. (December 17, 1987), Cuyahoga App. No. 53059, unreported. General Elevator's duty to appellant Bernard Schillo consisted of performing the contracted services in a reasonable, proper and efficient manner. Id. at 5. General Elevator's failure to exercise ordinary care in its obligations under the contract would result in a breach of duty. Id. citing Dunhan v. The Warner Elevator Mfg. Co. (1956), 166 Ohio St. 31. The record before us reveals that, in response to a report that someone had been caught between the doors of elevator #4 in the Frank J. Lausche Building, General Elevator employee Charles Broscheid inspected the elevator to determine if the detectors on the elevator doors were functioning properly. Mr. Broscheid determined that the detectors were working properly. Evidence presented to the trial court further reveals that Mr. Broscheid conducted weekly maintenance inspections of the elevators at the Frank J. Lausche Building and that he never encountered a problem with the motion detectors attached to the elevator doors. 7 The record presently before this Court contains no evidence that General Elevator failed to exercise due care in the performance of its contractual obligations. Mr. Broscheid's depositional testimony indicated that General Elevator did what it had contracted to do and that General Elevator performed maintenance and safety tasks as soon as it became aware of any problem. Thus, the record fails to indicate that General Elevator breached its duty. Appellants' assertion that the elevator doors malfunctioned and closed upon him is insufficient for purposes of showing breach of duty on behalf of General Elevator. See Otis Elevator Co., supra. Accordingly, absent evidence of the essential element of a breach of duty, the trial court did not err in granting General Elevator's motion for summary judgment. Appellants further argue that G. Services had exclusive control over elevator #4 at the time of the accident and that Bernard Schillo's injuries occurred under such circumstances that in the ordinary course of events would not have occurred if G. Services had exercised due care. Thus, appellants contend that the doctrine of res ipsa loquitur applies. It is well established that res ipsa loquitur is a rule of evidence which permits the trier of fact to infer negligence on the part of the defendant from the circumstances surrounding the injury to plaintiff. Hake v. Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, at 66. One of the important essentials for the application of the doctrine of res ipsa loquitur is that the instrumentality causing the injury must be under the exclusive management and 8 control of the defendant. Feinberg v. Hotel Olmsted Co. (1949), 152 Ohio St. 417, 419. Thus, to warrant application of the rule a plaintiff must adduce evidence to support two conclusions: first, 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 must establish further that the injury occurred under such circumstancesthat, in the ordinary course of events, it would not have occurred if ordinary care had been observed. Hake, supra, at 66. Whether sufficient evidence has been adduced at trial to warrant application of the rule is a question of law to be determined initially by the trial court, subject to review upon appeal. Id. at 67. In the present case, the doctrine of res ipsa loquitur was inapplicable since appellants provided insufficient evidence that G. Services had exclusive control of the instrumentality at the time of the incident. The evidence before the trial court clearly demonstrates appellants could not provide even the first element necessary to sustain a theory of res ipsa loquitur. The evidence before the trial court reveals that the Frank J. Lausche Building was owned by Ohio Building Authority and that Ohio Building Authority contracted with G. Services for purposes of housekeeping, security and maintenance for the building. Ohio Building Authority also contracted with General Elevator for the specific purpose of maintenance and inspection of the building's elevators. Although G. Services may receive complaints about the malfunctioning of the 9 elevators, it was not responsible for the maintenance or control of the elevators in the building and would immediately inform General Elevator of any problem. Evidence further revealed that on June 18, 1992, after learning of the accident, G. Services turned off the elevator and called General Elevator to test the elevator. General Elevator did, in fact, test the elevator and determined that everything was working properly. Clearly, the evidence before the trial court does not reveal that G. Services had exclusive control over the elevator which caused appellant Bernard Schillo's accident. Moreover, there was also insufficient evidence presented to prove the accident was so unusual that it would not have happened in the ordinary course of events if G. Services had not been negligent. See Walker v. Mobil Oil Corp. (1976), 45 Ohio St.2d 19. Under these circumstances it is impossible to apply the doctrine of res ipsa loquitur to the facts of the case before us. Since appellants produced insufficient evidence to sustain their cause of action in negligence and res ipsa loquitur, the trial court did not err in granting G. Service's motion for summary judgment. Accordingly, appellants' sole assignment of error is overruled. Judgment affirmed. 10 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. PATRICIA BLACKMON, P.J. and KENNETH A. ROCCO, J. CONCUR. __________________________ LEO M. SPELLACY Judge N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsidera-tion with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .