Summary
In Kloos, the court stated that before the doctrine may be applied, a plaintiff must prove that (1) the instrumentality causing injury was within the exclusive control and management of the defendant, and (2) the incident is one which would normally not occur in the absence of negligence. Kloos, supra, at 678, citing Hake v. Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, 66-67.
Summary of this case from Barker v. Department of RehabilitationOpinion
No. 87-11450.
Decided March 20, 1989.
John B. Street, for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, and William B. Mattes, Assistant Attorney General, for defendant.
On January 23, 1989, this matter came to trial before a referee of this court, Kevin P. Byers. On February 28, 1989, the referee issued a report wherein he found that the plaintiff met his burden of proof and thus recommended that judgment be rendered for plaintiff in the amount of $6,500.
Civ.R. 53 states that "[a] party may, within fourteen days of the filing of the report, serve and file written objections to the referee's report." Defendant did not file an objection to said report.
Upon review of the record and the referee's report, it is the court's finding that the referee was correct in his analysis of the issues and application of the law. Accordingly, this court adopts the referee's report and recommendation as its own. See Appendix.
Therefore, it is hereby ORDERED and ADJUDGED that plaintiff shall take $6,500 upon his claim against the defendant. Court costs are assessed against the defendant.
Judgment for plaintiff.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.
APPENDIX Referee's Report Issued February 28, 1989
KEVIN P. BYERS, Referee.
Plaintiff's pro se complaint was filed on November 4, 1987. On December 17, 1987, the defendant's motion to dismiss was granted based upon the applicable statute of limitations. This decision was reversed on appeal and on August 16, 1988, plaintiff's counsel filed an amended complaint. Trial on the merits commenced on January 23, 1989, before the duly appointed referee. A view of the scene was conducted prior to receiving testimony. Defendant's Civ.R. 41(B)(2) motion submitted at trial was partially granted on the issues of future medical expense and wage diminution. The motion was held in abeyance as to the remainder of plaintiff's claims. The following findings and conclusions are supported by the court file, evidence submitted at trial, and the arguments of counsel.
Findings of Fact
1. On October 30, 1985, Roger L. Kloos was an inmate at the Chillicothe Correctional Institution ("CCI") under the custody of defendant pursuant to R.C. 5120.16.
2. On October 30, 1985, plaintiff was engaged in painting a coal silo at the CCI powerplant. Said painting involved the use of a hanging, airborne cage in which plaintiff was to be located while painting the upper portion of the silo.
3. The boom from which the cage was suspended had been constructed by inmates under the direction of CCI personnel at an undetermined prior date.
4. Prior to October 30, 1985, the boom had functioned adequately and safely.
5. Plaintiff was solely responsible for setting up the rigging for the cage and utilized prudent safety precautions in doing so.
6. Plaintiff was painting the silo at the direction of a CCI employee, Mike McElvain. Other CCI employees also knew of plaintiff's assignment to paint the silo;
7. Plaintiff was using the boom and cage at the direction of Mr. McElvain. Other CCI employees knew of the use of the boom and cage by plaintiff.
8. On October 30, 1985, the boom snapped while plaintiff was in the cage approximately sixty feet (60') above the ground.
9. As a result of the boom's failure, plaintiff fell to the ground while still inside the cage.
10. Plaintiff suffered injuries which required hospitalization and follow-up care.
11. Plaintiff has suffered no out-of-pocket expense as a result of the October 30, 1985 accident.
Conclusions of Law
Plaintiff's case relies heavily upon the proffered doctrine of res ipsa loquitur. Plaintiff produced no testimony relative to the duty of defendant in installing, testing or maintaining the boom which failed. Res ipsa loquitur is merely an evidentiary rule which allows the trier of fact to infer negligence. Schafer v. Wells (1961), 171 Ohio St. 506, 14 O.O.2d 439, 172 N.E.2d 708. Before the doctrine may operate for plaintiff's benefit, it must be proven that: (1) the instrumentality causing injury was within the exclusive control or management of the defendant, and (2) the incident is one which would normally not occur in the absence of negligence. Hake v. Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, 66-67, 52 O.O.2d 366-367, 262 N.E.2d 703, 705-706. In deciding whether res ipsa loquitur is applicable to a particular set of facts, the court should view the evidence most favorably for plaintiff. Howard v. Pennsylvania RR. Co. (1930), 43 Ohio App. 96, 182 N.E. 663.
Testimony at trial indicates that the boom was manufactured by CCI inmates for use at the power plant. While plaintiff may have had immediate possession of the instrumentality, defendant retained exclusive control and management over the boom. This is by virtue of the respective status of the parties as inmate and lawful custodian. Plaintiff's temporary possession of the instrumentality will not bar application of the doctrine. Schafer, supra. Exclusive control of the subject instrumentality is the threshold issue in deciding the propriety of res ipsa loquitur. Domany v. Otis Elevator Co. (C.A. 6, 1966), 369 F.2d 604, certiorari denied (1966), 387 U.S. 942, 87 S.Ct. 2073, 18 L.Ed.2d 1327. Based upon the available evidence, I find that the boom was in the exclusive control and management of defendant. Thus, the first prerequisite of Hake, supra, favors invocation of the doctrine.
The second phase of analysis requires a determination whether the incident-causing injury would have occurred in the usual course of events had there been no negligent acts or omissions. The boom had previously been used to support a chute for coal transport and also to suspend the same cage with two inmates inside. The estimated weight of the two inmates was three hundred fifty pounds. There is no evidence relative to the date when the boom was used to hoist the inmates aloft. It was used as a coal chute support sometime in 1983. In 1983 the boom was also made longer by welding a piece of pipe to the bottom of it. This is the same weld which failed on October 30, 1985. The welding was completed by inmates acting under the direction of CCI personnel. Absent this modification, the boom would probably not have broken in two. It is evident that either the weld itself, or the subsequent failure by defendant to inspect the weld, may be negligent acts or omissions chargeable to defendant. In the usual course of events the boom would have functioned properly. Defendant submitted no evidence to indicate proper welding or maintenance; nor was any evidence submitted to show the "acceptable" failure rate of similar non-welded booms.
Defendant cites two Ohio decisions in support of the Civ.R. 41(B)(2) motion based upon its contention that res ipsa loquitur is inapplicable to the facts sub judice. Defendant cites Cleveland Ry. Co. v. Sutherland (1926), 115 Ohio St. 262, 152 N.E. 726, for the proposition that res ipsa loquitur is not available where there is direct evidence of the cause or where the facts infer that an intervening act or omission may have caused the accident. Id. at 264, 152 N.E. at 727. There was no direct evidence submitted by either plaintiff or defendant relative to any specific negligent acts by any parties or non-parties. The facts before the court do not support an inference that an intervening or third party act or omission caused the failure of the weld on the boom. The boom was in the exclusive control of defendant when it was modified by welding on an additional section of pipe. The boom remained in the exclusive control of defendant thereafter and there is not a scintilla of evidence of intervening possession, custody or control of the instrumentality.
Defendant's second cite is Jennings Buick, Inc. v. Cincinnati (1980), 63 Ohio St.2d 167, 17 O.O.3d 102, 406 N.E.2d 1385. The plaintiff in Jennings sued the city due to damages incurred from a break in a water main. In reversing the trial court's allowance of res ipsa loquitur, the Ohio Supreme Court held that "[w]here it has been shown by the evidence adduced that there are two equally efficient and probable causes of the injury, one of which is not attributable to the negligence of the defendant, the rule of res ipsa loquitur does not apply." Id. at 171, 17 O.O.3d at 105, 406 N.E.2d at 1388. The facts presently before this court do not support a finding of "two equally efficient and probable causes of the injury." Plaintiff was not negligent in failing to test or inspect the boom before performing the task as instructed. Plaintiff, out of necessity, examined the boom while he was setting up the pulley assembly and it appeared stable. This cursory inspection was all that plaintiff was bound to do. The evidence construed most favorably for plaintiff supports the application of the doctrine of res ipsa loquitur.
Application of the doctrine does not convert the suit into a strict liability case. The doctrine functions only to support an inference of negligent conduct by defendant and defendant is not bound to put on evidence to rebut the inference. 70 Ohio Jurisprudence 3d (1986) 306-308, Negligence, Section 161. However, defendant bears the risk of foregoing the introduction of rebuttal evidence in the face of the doctrine. Edelstein v. Cook (1923), 108 Ohio St. 346, 140 N.E. 765. The foundation for the doctrine is that the cause of the incident, whether negligent or not, is within the superior knowledge of defendant and not accessible to plaintiff. Shields v. King (1973), 40 Ohio App.2d 77, 69 O.O.2d 57, 317 N.E.2d 922. Defendant sub judice rested without calling a witness and the burden of explanation is upon defendant. Substituting the doctrine for direct proof of negligence is proper when the causal chain is otherwise impossible to complete and the two prerequisites exist to allow res ipsa loquitur to operate. Winslow v. Ohio Bus Line Co. (1947), 148 Ohio St. 101, 35 O.O. 91, 73 N.E.2d 504. Plaintiff is not required to exclude all possible causes to benefit from the doctrine. Domany, supra. Defendant has not carried the burden of explanation which was thrust upon it by plaintiff's proper invocation res ipsa loquitur. Lacking explanation by defendant, I find that the injuries sustained by plaintiff on October 30, 1985, were as a result of defendant's exclusive control over the instrumentality and said injuries would not have occurred if defendant had exercised ordinary care relative to the boom which it provided for plaintiff's use.
Defendant has raised several defenses and arguments which require comment. Defendant asserts via the amended answer and orally at trial that plaintiff's contributory negligence should bar any recovery. Specifically defendant highlights plaintiff's admitted failure to conduct any type of load test or inspection on the boom prior to using it. The boom was already in place atop the elevator platform and plaintiff had painted it himself sometime before October 30, 1985. Defendant argues that plaintiff's own negligence in failing to load test the boom was more than fifty percent of the cause of his own injuries. Defendant also argues that plaintiff's act of painting over the weld was a negligent act.
Defendant's reliance on plaintiff's non-testing of the boom is unpersuasive. Plaintiff was entitled to rely upon the judgment of CCI employees who instructed him to use the device. Even if plaintiff had performed some type of perfunctory load test, it appears improbable that the plaintiff could have detected any structural flaws. On October 30, 1985, plaintiff weighed two hundred pounds and was suspended in the cage for ten to fifteen minutes before the weld broke. It is unlikely that any test which the non-engineer plaintiff could have conducted upon the boom would have given any indication of the insecure weld.
When plaintiff painted over the weld which failed, he had no cause to scrupulously inspect the weld for flaws. He was unaware that in the near future his safety would be at risk due to use of the boom in painting the silo. Comparative negligence is applicable in a res ipsa loquitur suit in Ohio; however, defendant has failed to prove any acts or omissions of plaintiff's which should operate to negate or proportionately diminish defendant's culpability.
Defendant also asserted the defense of assumption of the risk. This theory has been judicially merged with contributory negligence under R.C. 2315.19. Thus, assumption of a risk by a plaintiff does not automatically bar recovery but may operate to proportionately diminish a judgment to reflect the relative degrees of responsibility. Defendant asserted that plaintiff assumed the risk when he "volunteered" for the silo painting job. Defendant points to plaintiff's October 12, 1988 deposition where plaintiff was asked if he volunteered for the job. Plaintiff's response was "[y]es, I did. It was my job. I was the painter." However, this cite to one specific answer during a discovery deposition fails to account for the totality of plaintiff's deposition testimony regarding the reason he was in the cage on October 30, 1985. Plaintiff initially said it was "suggested" by his boss, a CCI employee, that the boom and cage be utilized. During this line of inquiry he also testified that "I was told that the cage is what he — what I had to use." Of course, use of the cage mandates use of the boom as well. Plaintiff testified at trial that it was both "suggested" and "told" to him by Mr. McElvain that the cage should be used to paint the power plant coal silo. Plaintiff's status as an inmate under the direct supervision of Mr. McElvain and the objective perception of a "suggestion" by his supervisor lead this court to conclude that in this circumstance the verbs "suggested" and "ordered" are virtually synonymous. Regardless of the current characterization of the communication from Mr. McElvain, plaintiff reasonably interpreted it as a direct order.
Defendant's motion for a Civ.R. 41(B)(2) dismissal of plaintiff's prayer for future economic loss was granted at trial due to the complete absence of any evidence as to future wage impairment or medical expense. Plaintiff admitted that all medical expenses to date have been absorbed by defendant. I recommend that the remainder of defendant's Civ.R. 41(B)(2) motion be denied. Evidence submitted at trial supports an award of damages for pain and suffering only. I find that the plaintiff has proven by a preponderance of the evidence that he suffered damages in the amount of $6,500. This amount represents physical pain and suffering on October 30, 1985, and subsequent thereto. Plaintiff's injuries are objectively of the type which will produce future pain and suffering and expert testimony is unnecessary. Day v. Gulley (1963), 175 Ohio St. 83, 23 O.O.2d 382, 191 N.E.2d 732. Also factored into this amount is compensation for the shock and fright which plaintiff incurred contemporaneously with his physical injuries.
Based upon the foregoing reasoning and analysis, the referee's recommendation is that judgment be rendered in favor of plaintiff for one hundred percent of the damages incurred. Plaintiff has proven damages in the amount of $6,500 and judgment should be rendered against defendant for this sum.