K-Mart Corp. v. Gipson
| Decision Date | 13 December 1990 |
| Docket Number | No. 41A01-9001-CV-37,K-MART,41A01-9001-CV-37 |
| Citation | 563 N.E.2d 667 |
| Parties | CORPORATION, Defendant-Appellant, v. Floyd GIPSON and Frances Gipson, Plaintiffs-Appellees. * |
| Court | Indiana Appellate Court |
Michael V. Gooch, Edward R. Hannon, Harrison & Moberly, Indianapolis, for defendant-appellant.
John R. Helm, Schreckengast, Lovern & Helm, Indianapolis, for plaintiffs-appellees.
Defendant-appellant, K-Mart Corporation (K-Mart), brings this appeal challenging a $275,000 jury verdict entered in favor of plaintiff-appellees, Frances and Floyd Gipson (the Gipsons). The Gipsons sued K-Mart for personal injuries Frances suffered in an incident involving a falling display rack at a K-Mart store. K-Mart raises four issues for our review which are:
I. Whether the trial court erred in giving the jury an instruction concerning the doctrine of res ipsa loquitur.
II. Whether the trial court erred in denying its motion for judgment on the evidence.
III. Whether the trial court erred in instructing the jury concerning future medical expenses.
IV. Whether the trial court erred in sending a copy of the final instructions to the jury room for their use during deliberations.
We find no error in the trial court's actions and, therefore, affirm the judgment.
On Thursday, May 9, 1985, Mrs. Gipson and her friend, Mary Miller, went to a K-Mart store to return an item Mrs. Gipson purchased earlier that week. While at the store, Mrs. Gipson was injured when a display rack made of heavy metal wire and containing several wind chimes fell on her.
At the close of the evidence, the Gipsons tendered the following instruction on the doctrine of res ipsa loquitur which the court read to the jury:
In this case, if you find that:
1. The plaintiff was injured as a proximate result of the falling display rack;
2. That the display rack was under the exclusive control of the defendant, or its agents, and;
3. That the falling display rack was of such a nature that it usually would not occur in the absence of negligence on the part of the defendant or the defendant's agents; then you may infer that Record at 44.
the defendant was negligent, and you may consider this inference, together with all the other evidence in the case, in arriving at your verdict. 1
I and II.
K-Mart asserts the trial court erred in instructing the jury concerning the doctrine of res ipsa loquitur and in denying its motion for judgment on the evidence. K-Mart predicates both of these contentions on the allegation that the Gipsons failed to present sufficient evidence of negligence to send the case to the jury. 2 Because the two issues concern the sufficiency of the Gipsons' case, we will discuss them together.
When reviewing jury instructions, this court considers whether the instruction correctly states the law, whether the evidence supports giving the instruction, and whether the substance of the instruction is covered by other instructions which were given. Evans v. Schenk Cattle Co. (1990), Ind.App., 558 N.E.2d 892. K-Mart focuses its argument on whether the evidence supported giving the res ipsa loquitur instruction.
The doctrine of res ipsa loquitur is a rule of evidence that allows a jury to draw an inference of negligence under certain factual circumstances. Brinegar v. Robertson Corp. (1990), Ind.App., 550 N.E.2d 812, trans. denied. The doctrine operates on the premise that negligence, like any other fact or condition, may be proved by circumstantial evidence. New York, Chicago & St. Louis R.R. Co. v. Henderson (1957), 237 Ind. 456, 146 N.E.2d 531. Although negligence may not be inferred from the mere fact an injury occurred, it may be inferred from the circumstances surrounding the injury. Haidri v. Egolf (1982), Ind.App., 430 N.E.2d 429; S. SPEISER, THE NEGLIGENCE CASE--RES IPSA LOQUITUR Sec. 1:1 (1972).
The central question involved in the use of the res ipsa loquitur doctrine is whether the incident more probably resulted from the defendant's negligence rather than from some other cause. Shull v. B.F. Goodrich Co. (1985), Ind.App., 477 N.E.2d 924, trans. denied. The doctrine may be applied when the plaintiff establishes: 1) that the injuring instrumentality was within the exclusive management and control of the defendant or its servants; and, 2) the accident is of the type that does not ordinarily happen if those who have the management and control exercise proper care. 3 Henderson, supra; Hammond supra. A plaintiff seeking to invoke the res ipsa loquitur doctrine may establish that the incident was more probably the result of negligence by relying on common sense and experience. Shull, supra. Once a plaintiff presents sufficient evidence to bring himself within the purview of the doctrine, the defendant is given the burden of going forward with evidence to explain the accident; but, the burden of proof does not shift. Bituminous Fire, supra; Hammond, supra.
When presented with a request for a res ipsa loquitur instruction, a trial judge's duty is:
to determine whether the plaintiff has produced evidence from which a jury could reasonably conclude the existence of the underlying elements of exclusive control and probability of negligence. If there is no such evidence the instruction is properly refused. On the other hand, if there is evidence from which a jury could reasonably conclude the existence of the elements, then the conditional res ipsa instruction, which merely tells the jury that if they do find the existence of these elements then they may draw the inference of negligence, must be given.
Shull, supra at 928. The precise issue here, then, is whether the Gipsons presented evidence from which a reasonable jury could conclude that the display rack would not have fallen in the absence of negligence on the part of the party in control of the rack and that K-Mart was the party in exclusive control of the rack. If the Gipsons presented sufficient evidence on the above two elements, then they were entitled to have the jury instructed that if it found those elements were established by a preponderance of the evidence, it could infer that K-Mart was negligent.
The Gipsons presented the following evidence concerning the incident. The rack that fell on Mrs. Gipson was made of heavy metal wire, was affixed by small hooks to standards, and stood approximately 7 feet off the ground. The rack was installed by a K-Mart employee. Immediately preceding the fall of the rack, Mrs. Gipson approached the rack and lightly touched the "clangers" on two of the wind chimes. Mrs. Gipson did not touch the rack itself. She turned and took a few steps away from the display, decided to purchase one of the chimes, and turned and took a few steps back toward the display. As she moved back toward the display, the rack containing the chimes fell on her and knocked her off her feet.
There were no other customers near the display when the rack fell on Mrs. Gipson. Mary Miller testified at trial that the rack simply toppled over for no apparent reason. There were no warning signs around the rack to discourage customers from touching either the wind chimes or the rack. After the incident, an unidentified person who appeared to Mrs. Gipson to be a stock boy said, "Well look, this whole thing broke." Record at 95. Ronald Klinger, the manager who was called to the incident, told the stock boy to "Get it out of here, get it cleaned up and get it out of here." Record at 95. The Gipsons presented Klinger's depositional testimony at trial. Klinger claimed to have no knowledge of who cleaned up the display rack after the incident, of whether K-Mart still had the rack, of the names of any K-Mart employees who knew anything about the falling rack, of whether the rack was inspected after installation, and of anyone who knew whether the rack was inspected. Klinger also had no knowledge of how the rack fell, although he admitted he looked at the rack after it fell. K-Mart did not present any evidence to explain the cause of the accident.
The Gipsons maintain that display racks do not ordinarily fall in the absence of someone's negligence and we have to agree. While the evidence presented by the Gipsons may not be compelling, it was enough for a reasonable juror to infer negligence. In establishing the probability of negligence element of res ipsa loquitur, a plaintiff may rely on common sense and experience. Shull, supra. As a matter of common sense and experience, display racks do not ordinarily fall for no apparent reason on customers in stores. 4 The rack was installed by a K-Mart employee and there was no evidence presented that a third party may have tampered with the rack. It is reasonable to infer that negligence for a falling instrumentality is attributable to that party who was responsible for installing and maintaining the instrumentality. K-Mart was the party who was responsible for installing and maintaining the rack, and the jury could reasonably infer that it was negligent in the rack's fall.
K-Mart argues the Gipsons failed to establish it exercised exclusive control over the display rack mainly because the Gipsons did not eliminate other causes for the rack's fall. K-Mart submits there was evidence that the display may have been broken prior to the fall and K-Mart may not have known of the break or caused the break. K-Mart also argues the Gipsons were not entitled to the res ipsa loquitur instruction because they did not eliminate the possibility that another customer may have "had access to, handled, tampered with, perhaps bumped with carts or otherwise caused a dislodging of the display." Appellant's Brief at 12. In response to these arguments, we direct K-Mart's attention to Merriman v. Kraft (1969), 253 Ind. 58, 249 N.E.2d 485, in which the Indiana Supreme Court stated:
To assert the doctrine of res ipsa loquitur it is not necessary to prove that the only cause of...
To continue reading
Request your trial
-
Rodefer v. Hill's Pet Nutrition, Inc., Cause No. IP 01-123-CH/G (S.D. Ind. 11/7/2003)
...exclusive control of the defendant. Newell v. Westinghouse Elec. Corp., 36 F.3d 576, 579 (7th Cir. 1994), citing K-MartCorp. v. Gipson, 563 N.E.2d 667, 669 (Ind. App. 1990). A plaintiff need not rule out every other possible cause of the accident for the inference to attach, but must show t......
-
Whiteco Indus., Inc. v. Non-Stop Creativity Corp.
...and fact (citing Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind. Ct. App. 2005))); Newell, 36 F.3d at 578-79 (citing K-Mart Corp. v. Gipson, 563 N.E.2d 667, 669 (Ind. Ct. App. 1990)). A successful res ipsa loquitur showing does not mean the plaintiff has won the case, it "simply creates an inferen......
-
Newell v. Westinghouse Elec. Corp.
...was in the exclusive control of the defendant, the plaintiff is entitled to a res ipsa loquitur inference. 2 K-Mart Corp. v. Gipson, 563 N.E.2d 667, 669 (Ind.App.1990). Our task is to determine whether Newell has produced evidence from which a jury could reasonably find both of these A prob......
-
Maroules v. Jumbo, Inc.
...from the mere fact that an injury occurred, it may be inferred from the circumstances surrounding the injury. K-Mart v. Gipson, 563 N.E.2d 667, 669 (Ind.Ct.App.1990). The doctrine recognizes that in some situations an occurrence is so unusual that, absent a reasonable justification, the per......