Busse v. Grand Finale, Inc.

• Decision Date: 10 November 1981
• Citation: 3 Ohio App.3d 65,3 OBR 76,443 N.E.2d 1011
• Parties: , 3 O.B.R. 76 BUSSE et al., Appellees and Cross-Appellants, v. GRAND FINALE, INC. et al., Appellants and Cross-Appellees. *
• Court: Ohio Court of Appeals

Page 65

3 Ohio App.3d 65

443 N.E.2d 1011, 3 O.B.R. 76

BUSSE et al., Appellees and Cross-Appellants, v. GRAND FINALE, INC. et al., Appellants and Cross-Appellees. ^*

Court of Appeals of Ohio, First District, Hamilton County.

Nov. 10, 1981.

Syllabus by the Court

1. A restaurant operator who supplies chairs and tables on its premises for use in the consumption of food sold to its customers owes a duty of reasonable care to the customers with respect to the chairs and tables.

2. The doctrine of strict liability is not applicable with respect to a restaurant operator's duty to his business invitees concerning chairs and tables furnished in connection with the sale of food.

3. The doctrine of res ipsa loquitur does not create a presumption conclusively binding on the defendant if he fails to offer some explanation or rebuttal. It creates a permissible inference which merely gets the plaintiff to the jury.

Strauss, Troy & Ruehlmann Co., L.P.A., and Charles G. Atkins, Cincinnati, for Herman and Bonnie Busse.

Clark & Eyrich Co., L.P.A., Walter E. Haggerty, Pierce E. Cunningham, Frost & Jacobs and Susan Grogan Faller, Cincinnati, for Grand Finale, Inc., and Larry and Cindy Youse.

BLACK, Judge.

On New Year's Eve 1976, Herman and Bonnie Busse joined some friends for dinner at the restaurant known as Grand Finale. The chair on which Herman was seated collapsed during the meal, injuring his coccyx (it had to be surgically removed a year later), back, neck and legs. What caused the chair's collapse was not revealed in the trial, apparently because the chair was disposed of without subjecting it to expert inspection. The Busses sued the operating corporation and the managers thereof, claiming negligence and strict liability, as well as breach of implied warranty ¹ and loss of consortium. The jury returned a verdict in favor of Herman for $80,000 and Bonnie for $25,000. Since the jury stated in answer to an interrogatory that the evidence was insufficient to prove that the defendants were negligent, the award was made on grounds of strict liability.

The principal question presented by the defendants' appeal concerns the applicability of the doctrine of strict liability to a restaurant operator so as to make him liable to his customers for personal injuries received from the collapse of a chair without proving negligence. The plaintiffs cross-appealed, raising the single issue of their entitlement, on the evidence, to a directed verdict in their favor on their action for negligence.

The defendants' first assignment of error presents the question of whether the trial court erred when it instructed the jury, over the defendants' objection, that they could find for the plaintiffs on grounds of strict liability. ² Plaintiffs, on the other hand, contend that these instructions are valid because, in Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 364 N.E.2d 267 , the Supreme Court "approved" Section 402A of 2 Restatement of Torts 2d, ³ in which sellers of chattels are made liable for physical harm to the user or consumer caused by a product sold in a defective condition that is unreasonably dangerous. If the doctrine of strict liability is applicable, the injured party need not prove the existence of either negligence or warranty. We do not agree that the doctrine is applicable to the instant case.

Plaintiffs were invitees on defendants' premises, and the long-established duty of the owner or operator of a place of business to his invitees is to exercise ordinary care to maintain the premises in a reasonably safe condition so that the invitees will not be unreasonably exposed to danger. Parras v. Standard Oil Co. (1953), 160 Ohio St. 315, 116 N.E.2d 300 ; S.S. Kresge Co. v. Fader (1927), 116 Ohio St. 718, 158 N.E. 174. However, the occupier of business premises has traditionally not been held to be an insurer of the safety of his customers while they are on the premises. Howard v. Rogers (1969), 19 Ohio St.2d 42, 249 N.E.2d 804 .

Section 392 of 2 Restatement of Torts 2d ⁴ applies the same duty of reasonable care to one who supplies chattels to another to be used for the supplier's business. We believe that in supplying chairs and tables on its premises for use in the consumption of food sold to its customers, a restaurant operator owes a duty of reasonable care, and we are unwilling to raise the restaurant operator's duty to his business invitees with respect to chattels furnished in connection with the sale of food to one of strict liability. ⁵ Annotation, 76 A.L.R.2d 1342.

Section 402A (2 Restatement of Torts 2d) is by its terms applicable to sellers of consumer products with unreasonably dangerous defects, not to operators of business premises. As noted in Comments b and d, this rule of liability is applicable to sellers of food for human consumption. The justification for strict liability, per Comment c, is that as a matter of public policy, the burden of accidental injuries caused by consumer products should be placed on those who market them, as a cost of business against which liability insurance may be purchased, thus giving the injured consumer the maximum of protection. An Ohio customer injured by adulterated food or deficient food service operations is given a comparably high degree of protection by R.C. Chapters 3715 and 3732, which require more than ordinary care of restaurant operators in the preparation and serving of food. The concurrent supplying of a place to eat the food including tables and chairs appears to us to be a separate matter, and no different in substance from the premises and related chattels furnished to customers by storekeepers and other retailers dealing directly with customers.

Our opinion is that the public is protected reasonably and within its expectations if the restaurant operator is under a duty of ordinary care to protect its customers against injury caused by its premises and the chattels used temporarily for the consumption of food. It was error to instruct the jury on strict liability. The defendants' first assignment of error has merit, and because the judgment below was based on strict liability, it must be reversed.

The defendants' three other assignments of error raise questions about the admission of evidence. These questions are rendered academic (moot) by our reversal of the judgment below without remand for further proceedings. We decline to rule on them. Moncol v. Bd. of Edn. (1978), 55 Ohio St.2d 72, 79, 378 N.E.2d 155 .

Turning to plaintiffs' claim that the trial court erred in overruling their motion for a directed verdict on the issue of negligence, we note that the chair in question was an antique, the manufacturer of which was unknown and the collapse of which was sudden and unexplained. The plaintiffs persuaded the court to proceed on the basis of the doctrine of res ipsa loquitur, ⁶ but failed to persuade the court to direct a verdict in their favor. We find no error as claimed by plaintiffs.

A verdict could have been directed for plaintiffs if the trial court, after considering the evidence most strongly in favor of the defendants, found that upon the determinative issue of negligence, reasonable minds could come only to the conclusion that the defendants were negligent. Civ.R. 50(A)(4). No court could properly come to such a conclusion in this case, in our opinion, because the defense testimony disclosed that all chairs were inspected for defects before they were placed in use, that they were strengthened or otherwise refurbished as might be found necessary, that all chairs were polished and inspected once every two weeks, and that the employees were ordered to report any perceived defects. Even with the permissible inference allowed under the doctrine of res ipsa loquitur, this evidence was sufficient to survive the motion for a directed verdict inasmuch as reasonable minds could differ about the defendants' alleged negligence.

Plaintiffs argue that, under res ipsa loquitur, they are entitled to a directed verdict because the inference of negligence was not rebutted. Plaintiffs misconstrue the doctrine. It does not create a presumption conclusively binding on the defendant if he fails to offer some explanation or rebuttal. It creates a permissible inference " * * * which merely gets the plaintiff to the jury. * * * " Prosser on Torts (4 Ed.1971), Section 40, at page 231.

"In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. * * * " Sweeney v. Erving (1913), 228 U.S. 233, at page 240, 33 S.Ct. 416, at page 418, 57 L.Ed. 815, cited with approval in Fink v. New York Central RR. Co. (1944), 144 Ohio St. 1, 8, 56 N.E.2d 456 .

The plaintiffs' single assignment of error in their cross-appeal has no merit.

We reverse the judgment of the Court of Common Pleas of Hamilton County. Because we find no merit in the plaintiffs' claim for a directed verdict on negligence, we decline to remand the cause for further proceedings or to enter judgment on their behalf for damages. Because the jury determined the issue of negligence adversely to the plaintiffs, we render final judgment for the defendants, being the judgment that the trial court should have rendered. App.R. 12(B).

Judgment reversed.

SHANNON and PALMER, JJ., concur.

* A motion to certify the record to the Supreme Court of Ohio was overruled on February 24, 1982 (case No. 82-43).

1 Although plaintiffs' complaint alleged breach of implied warranty as a separate cause of action, it was not presented to the jury as a...