Rector v. Oliver

• Decision Date: 10 June 2004
• Docket Number: No. 18A02-0309-CV-807.,18A02-0309-CV-807.
• Citation: 809 N.E.2d 887
• Parties: Kera L. RECTOR, Appellant-Plaintiff, v. Joe OLIVER, Judy Kadinger and Any Other Unknown Individual d/b/a Joe's Video, Appellees-Defendants.
• Court: Indiana Appellate Court

809 N.E.2d 887

Kera L. RECTOR, Appellant-Plaintiff, v. Joe OLIVER, Judy Kadinger and Any Other Unknown Individual d/b/a Joe's Video, Appellees-Defendants.

No. 18A02-0309-CV-807.

Court of Appeals of Indiana.

June 10, 2004.

Ralph E. Dowling, Norris Choplin & Schroeder LLP, Indianapolis, IN, Attorney for Appellant.

Donald K. McClellan, McClellan, McClellan & Arnold, Muncie, IN, Attorney for Appellee Judy Kadinger d/b/a Joe's Video.

OPINION

SULLIVAN, Judge.

Appellant-Plaintiff, Kera L. Rector, challenges the trial court's grant of summary judgment in favor of Appellee-Defendant Judy Kadinger d/b/a Joe's Video ("Kadinger").

We reverse and remand.

The basic facts necessary for our decision are undisputed. On February 12, 2000, Rector entered Joe's Video, owned by Kadinger, and was struck on the head and shoulder by a light fixture which fell from the ceiling of the store. Thereafter, on January 30, 2002, Rector filed a complaint against Kadinger.¹ Count I of the complaint alleged that the defendants were negligent for failing to maintain the video store in a reasonably safe condition and for failing to discover a dangerous condition. Count II, titled "Doctrine of Res Ipsa Loquitur," alleged that the light fixture was in the exclusive control of the defendants and subject to their use and inspection, that Rector did nothing to cause the light fixture to fall, and that "[i]n [the] ordinary experience of mankind, the light fixture would not have fallen from the ceiling except for the negligence of Defendants or that of others for whose negligence they are legally responsible." Appendix at 8. Kadinger filed an answer to the complaint on March 14, 2002.

On May 22, 2003, Kadinger filed a motion for summary judgment, along with a memorandum in support thereof. In support of her motion, Kadinger designated evidence establishing that when she and her husband purchased the video store, the light fixture which fell was already in place; that neither she nor her husband had any part in installing the light fixture; that they never replaced or altered the fixture; that, although they periodically cleaned the light fixture and replaced light bulbs, no maintenance work was ever done on the fixture itself; that the fixture had never appeared to be loose; and that no one indicated to them that there was a problem with the fixture or that it might be loose and require maintenance. Also, Kadinger and her husband "would have made routine cleaning and maintenance inspections of the property" before the accident. App. at 18.

On June 23, 2003, Rector responded to this motion by filing a memorandum in opposition to Kadinger's motion for summary judgment. Following a summary judgment hearing held on August 14, 2003, the trial court entered summary judgment in favor of Kadinger on August 20, 2003.

Upon appeal, the sole issue for our review is the propriety of the trial court's grant of summary judgment in favor of Kadinger. In such cases, our standard of review is well settled. When reviewing a grant or denial of a motion for summary judgment, we stand in the shoes of the trial court. Cox v. Town of Rome City, 764 N.E.2d 242, 245 (Ind.Ct.App.2002), reh'g denied. Summary judgment is appropriate where the designated evidentiary matter shows that there are no genuine issues as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Cox, 764 N.E.2d at 245. Once the moving party demonstrates, prima facie, that there are no genuine issues of material fact as to any determinative issue, the non-moving party must come forward with contrary evidence. Cox, 764 N.E.2d at 246. Upon appeal, we do not weigh the evidence, but rather we consider the facts in the light most favorable to the non-moving party. Id. We may sustain the judgment upon any theory supported by the designated evidence. Id.

The resolution of the issue before us depends upon whether the doctrine of res ipsa loquitur is applicable to the facts in the present case. The doctrine literally means "the thing speaks for itself." Shull v. B.F. Goodrich Co., 477 N.E.2d 924, 926 (Ind.Ct.App.1985),trans. denied. Res ipsa loquitur is a rule of evidence which permits an inference of negligence to be drawn based upon the surrounding facts and circumstances of the injury. K-Mart Corp. v. Gipson, 563 N.E.2d 667, 669 (Ind.Ct.App.1990),trans. denied. The doctrine operates on the premise that negligence, like any other fact or condition, may be proved by circumstantial evidence. Id. To create an inference of negligence, the plaintiff must establish: (1) that the injuring instrumentality was within the exclusive management and control of the defendant or its servants, and (2) that the accident is of the type that does not ordinarily happen if those who have the management and control exercise proper care. Id. In determining if the doctrine is applicable, the question is whether the incident more probably resulted from defendant's negligence as opposed to another cause. Id. A plaintiff may rely upon common sense and experience or expert testimony to prove that the incident more probably resulted from negligence. Vogler v. Dominguez, 624 N.E.2d 56, 61 (Ind.Ct.App.1993),trans denied. To invoke res ipsa loquitur, the plaintiff must demonstrate that the defendant had exclusive control of the injuring instrumentality at the time of injury. Aldana v. Sch. City of E. Chicago, 769 N.E.2d 1201, 1207 (Ind.Ct.App.2002),trans. denied. Exclusive control is an expansive concept which focuses upon who has the right or power of control and the opportunity to exercise it. Shull, 477 N.E.2d at 933. The existence of multiple defendants or the possibility of multiple causes does not automatically defeat the application of res ipsa loquitur. Vogler, 624 N.E.2d at 62

.

In support of her argument that the doctrine of res ipsa loquitur should not apply, Kadinger relies mainly upon the case of Cergnul v. Heritage Inn of Ind., Inc., 785 N.E.2d 328 (Ind.Ct.App.2003), trans. denied. In that case, the plaintiff had rented a room at a hotel operated by the defendant. The railings in the hotel's stairway had been removed and re-attached following the replacement of wallpaper. Although the plaintiff had used the stairway on at least two occasions without incident, the railing later came out of the wall as the plaintiff was climbing the stairs. This caused the plaintiff to fall and be injured. The plaintiff sued the hotel, and the trial court granted the defendant's motion for judgment on the evidence.

Upon appeal, a panel of this court affirmed the trial court and held that the doctrine of res ipsa loquitur did not apply. Distinguishing the case before it from that in Gipson, supra, the Cergnul court observed that the railing was re-attached by an independent contractor, not the hotel's owner. The Cergnul court, in referring to the Gipson case, stated, "Gipson presented evidence that the rack [which fell on the plaintiff] had been installed by K-Mart—a fact necessary to establish exclusive control." 785 N.E.2d at 331. The court then wrote:

"Here, even though it may fairly be said that Heritage Inn was in the exclusive possession of the railing after the contractor had installed it, it is axiomatic that stair railings can become loose and fall through no negligence on the part of a landowner. For instance, a screw behind the wall could have fractured or another guest could have vandalized the railing just before Cergnul used it. Moreover, the evidence showed that neither the Super 8's manager nor any of the hotel employees experienced any difficulties with the railing prior to Cergnul's fall. Even Cergnul did not encounter a problem before the railing came off the wall. Thus, Cergnul takes a broad leap in speculation to suggest that merely because the handrail became detached from the wall, it did so only because of Heritage Inn's negligence. The evidence points to the contrary, inasmuch as Cergnul failed to prove the cause of the damage to the railing and it has not been demonstrated how Heritage Inn may have been negligent in producing the fall." Id. at 332.

In the Gipson case mentioned in the Cergnul opinion, the plaintiff was injured at the defendant's store when a display rack made of metal wire and containing wind chimes fell on her. Upon appeal from the jury's verdict in favor of the plaintiff, the court held that the doctrine of res ipsa loquitur applied because "[a]s a matter of common sense and experience, display racks do not ordinarily fall for no apparent reason on customers in stores." 563 N.E.2d at 670. The Gipson court did note that the rack was installed by a K-Mart employee and that there was no evidence that the rack had been tampered with by a third party, writing, "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." Id. at 671. In response to the defendant's claim that Gipson had failed to establish that K-Mart had exclusive control over the display rack because Gipson had not eliminated other causes for the rack's fall, the court noted that, under the doctrine of res ipsa loquitur, it is not necessary to prove that the only cause of the accident was the defendant's negligence. Id. (quoting Merriman v. Kraft, 253 Ind. 58, 249 N.E.2d 485 (1969)). While the other possible causes asserted by K-Mart may have been legitimate inferences to draw from the evidence, they did not prevent the application of the res ipsa loquitur doctrine. Id.

In the case before us, Kadinger argues that, like the defendant hotel owner in Cergnul, the designated evidence indicates that she did not install the light fixture which fell upon Rector, and that therefore the doctrine of res ipsa loquitur does not apply. To be sure, there is language in the Cergnul opinion which supports Kadinger's position that, absent her having installed the light fixture which...