Kubiak v. Wal-Mart Stores, Inc. , 132 Ohio App. 3d 436 ( 1999 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Wal-Mart Stores, Inc. ("Wal-Mart") appeals from a judgment in favor of James Kubiak for $95,000 for injuries and losses he suffered when a piece of exercise equipment collapsed while he was testing it at Wal-Mart's store in Bellefontaine, Ohio. For the following reasons, we affirm the judgment of the Logan County Court of Common Pleas.

The relevant facts are as follows. On December 2, 1995, Mr. Kubiak, his wife (Janet Kubiak), and their daughter (Kateri Kubiak) were Christmas shopping at the Wal-Mart store in Bellefontaine, Ohio. In the store, Mrs. Kubiak began using a piece of exercise equipment, which was on display. Mr. Kubiak then attempted to use a piece of exercise equipment (the "gravity rider") directly across from Mrs. Kubiak. The first time Mr. Kubiak pulled up on the handlebars, Mr. Kubiak heard a noise and saw something shoot out of the right-hand side of the gravity rider. The machine collapsed landing him on his tailbone.

At trial, Robert Lewis, then-manager of the Wal-Mart store, testified that there was a two-page file on this incident, consisting of the accident report and his notes regarding Mr. Kubiak's doctor visits. The accident report provides that Mr. Kubiak "was trying [sic] at the Gravity Rider that was on display and his was [sic] up in the air and it fell back to the ground." Mr. Lewis also testified that Wal-Mart did not have a maintenance schedule for the assembled exercise equipment. Mr. Lewis testified that the store had about 5,000 customers on a daily basis during the Christmas season. He admitted that it was foreseeable that someone could have tampered with the gravity rider in question. Mr. Lewis also stated that it was reasonable to assume that there was nothing wrong with the gravity rider and that it was eventually sold to the public. Mr. Lewis testified that the equipment was available for the customers to try.

Ron Halterman, who was an assembler at the Wal-Mart store in December 1995, testified that Wal-Mart did not have a prepared inspection schedule for the displayed exercise equipment. Mr. Halterman stated that he would know if a piece of exercise equipment needed repair if "somebody walking by and seen [sic] it or a customer reporting it" or occasionally he would go out to the sales floor and examine the equipment himself.

Mr. Halterman stated that he was aware that children would use the displayed exercise equipment roughly. Mr. Halterman vaguely remembers Mr. Kubiak's accident and could not remember whether he assembled the specific gravity rider that Mr. Kubiak attempted to test. Mr. Halterman did describe the assembly procedures for the gravity riders. Mr. Halterman also stated that he inspected every gravity rider that he put together before placing it on the sales floor.

As a result of this incident, Mr. Kubiak sued Wal-Mart. A jury verdict for Mr. Kubiak awarded him $95,000. Wal-Mart now appeals, setting forth one assignment of error.

ASSIGNMENT OF ERROR

The trial court erred by denying Wal-Mart's motion for directed verdict and in instructing the jury on negligence.

Under this assignment of error, Wal-Mart raises various issues, which this Court will address separately for clarity.

I. We will first address whether the trial court erred in denying Wal-Mart's motion for a directed verdict.

Pursuant to Civ.R. 50(A)(4), when considering a motion for a directed verdict, a trial court is to construe the evidence most strongly in favor of the party against whom the motion is directed and find that based on the evidence, reasonable minds could come to only one conclusion and that conclusion is adverse to the party opposing the motion. White v. Ohio Dept. of Transp. (1990), 56 Ohio St. 3d 39, 45. On the other hand, if reasonable minds might reach different conclusions based on some competent evidence favoring the nonmoving side, the motion must be denied. Ramage v. CentralOhio Emergency Serv., Inc. (1992), 64 Ohio St. 3d 97, 109.

Mr. Kubiak's complaint and amended complaint allege only that Wal-Mart negligently assembled the gravity rider. At trial, however, Mr. Kubiak also raised the issue of whether Wal-Mart breached its duty to properly maintain it premises for business invitees.

Civ.R. 15(B) provides in part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.

After reviewing the record in this matter, we find that Wal-Mart consented implicitly to this new issue. See State, ex rel. Evans v.Bainbridge Twp. Trustees (1983), 5 Ohio St. 3d 41. Wal-Mart failed to object to the testimony of Robert Lewis (store manager) and Ron Halterman (assembler), who both testified to the inspection and maintenance of the exercise equipment. Additionally, Wal-Mart addressed this new issue during its motion for a directed verdict and in its request for jury instructions. Accordingly, we find that Mr. Kubiak's burden included establishing either that Wal-Mart negligently assembled the gravity rider or that Wal-Mart negligently maintained its premises.

In order to establish a cause of action in negligence, the plaintiff bears the burden of proving (1) that the defendant owed a duty of reasonable care to the plaintiff; (2) that the defendant breached its duty of reasonable care; and (3) that the plaintiff suffered injuries proximately caused by the breach. Strother v. Hutchinson (1981),67 Ohio St. 2d 282, 285.

It is undisputed that Wal-Mart owed the following duty to Mr. Kubiak as a business invitee:

Generally, a business owner or operator owes invitees a duty of ordinary care and must maintain his premises in a reasonably safe condition so that invitees are not unnecessarily and unreasonably exposed to danger. Gregg v. Kroger Co. (Apr. 19, 1991), Champaign App. No. 90 CA 12, unreported, citing Campbell v. Hughes Provision Co. (1950),153 Ohio St. 9.

If the owner/operator or one of its employees creates a danger, the plaintiff need not prove that owner had notice of the danger. Detrick v.Columbia Sussex Corp. Inc. (1993), 90 Ohio App. 3d 475, 477. The plaintiff only needs to establish that the owner/operator or one of its employees created the condition. Gregg, supra. That is, "proof of creation equals proof of knowledge." Tandy v. St. Anthony Hosp. (Nov. 29, 1988), Franklin App. No. 88AP-551, unreported. See, also, Guilford v. Cent. Hardware Co. (1989), 62 Ohio App. 3d 58 (holding that when evidence indicated that store owner created hazardous condition by placing a splintered rake on display, the plaintiff is not required to show notice).

If, however, a person other than the owner/operator creates a dangerous condition, the plaintiff must show that the "owner had, or in the exercise of ordinary care should have had, notice of the condition for a sufficient time to enable him, in the exercise of ordinary care, to remove the hazard or warn his patrons about it." Gregg, supra, citingPresley v. Norwood (1973), 36 Ohio St. 2d 29.

Moreover, the Ohio Supreme Court has held that an occupier must not only use care not to injure the visitor by negligent activities, and warn him of latent dangers of which the occupier knows, but he must also inspect the premises to discover possible dangerous conditions of which he does not know, and take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use. Perry v.Eastgreen Realty Co. (1978), 53 Ohio St. 2d 51, 52 (citations omitted). We do note, however, that a merchant is not an insurer of a customer's safety. Parchal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St. 3d 203,204.

The burden of proof that a merchant has failed to take reasonable precautions is on an invitee. Perry, 53 Ohio St.2d at 53. "The mere happening of an accident gives rise to no presumption of negligence, and where one is accidentally injured while he is a business guest upon the premises of another, the burden is upon the person injured to show negligence upon the part of such other before he can recover damages from such other." Parras v. Std. Oil Co. (1953), 160 Ohio St. 315, paragraph one of the syllabus.

In its motion for a directed verdict, Wal-Mart argued that Mr. Kubiak did not establish that the gravity rider had a defect or that the defect had been there a sufficient amount of time for Wal-Mart to be on notice and to repair it or put other customers on notice.

At trial, Mr. Kubiak testified that the first time he pulled up on the handlebars of the gravity rider, he heard a noise and saw something shoot out of the right-hand side of the machine. The machine collapsed and Mr. Kubiak landed on his tailbone. Mrs. Kubiak and Kateri both witnessed the gravity rider collapse.

Mr. Lewis and Mr. Halterman each testified that there was not a maintenance schedule to inspect the assembled exercise equipment. Moreover, Mr. Lewis testified that it was foreseeable that someone could have tampered with the gravity rider. He testified that, at the time of the incident, there were about 5,000 customers on a daily basis to the store. Mr. Halterman stated that children would "get on them [the displayed gravity riders] and ride them real hard." Mr. Halterman also testified that he would know if a piece of exercise equipment needed repair if "somebody walking by and seen [sic] it or a customer reporting it" or occasionally he would go out to the sales floor and examine the equipment himself.

Mr. Kubiak is not relying upon the mere fact that he was injured on Wal-Mart's premises. Rather, Mr. Kubiak contends that Wal-Mart's failure to employ maintenance inspections on the displayed exercise equipment was negligent in view of the foreseeable risk that the customers may abuse the equipment and render it harmful to a customer testing such equipment.

We find that the above cited evidence could reasonably support the conclusion that the gravity rider's collapse was due to its use by Wal-Mart patrons, that Wal-Mart failed to use reasonable and ordinary care to learn of the existence of the defect, and that Wal-Mart's negligence was the proximate cause of Mr. Kubiak's injuries.

The trial court was required to view the evidence most strongly in favor of Mr. Kubiak in deciding Wal-Mart's motion for a directed verdict. In doing so, it was required to deny Wal-Mart's motion. As we find that reasonable minds could find for Mr. Kubiak on the issue of liability, we find that the trial court properly overruled Mr. Kubiak's motion for a directed verdict.

II. We will next address whether the trial court erred in instructing the jury on negligence. We first note that Wal-Mart failed to discuss this issue in its brief as required by App. R. 16. After reviewing the record, we next note that Wal-Mart appears to have objected to the jury instructions at trial during oral arguments for its motion for a directed verdict. Specifically, it appears that Wal-Mart objected to the following:

However, the occupier or owner of such premises impliedly warrants that his premises are safe for the purposes intended. And he is therefore under a continuing duty of inspection to see that the premises are safe. And if he neglects this duty, his knowledge or ignorance of a defect[,] which renders the premises unsafe[,] is immaterial. This language was taken directly from 76 Ohio Jurisprudence 3d (1987), Premise Liability, Section 34, which cites Perry, 53 Ohio St. 2d 51. The Perry case, as cited above, is still law in Ohio. Thus, after a review of the jury instructions in this case, we find no error that would undermine the legitimacy of the judicial process because the court's instruction on negligence adequately stated the law. See Larder v. St. Rita's Medical Ctr. (1997),122 Ohio App. 3d 587.

III. In its brief, Wal-Mart also contends that it cannot be liable under the rule of res ipsa loquitor. "The res ipsa loquitor doctrine is an evidentiary rule which permits, but does not require, an inference of negligence when the elements of the doctrine are shown." Cochran v. OhioAuto Club (Oct. 3, 1996), Marion App. No. 9-96-33, unreported, citingMorgan v. Children's Hospital (1985), 18 Ohio St. 3d 185. We can find no evidence in the record that supports Wal-Mart's contention that the jury relied upon res ipsa loquitor in rendering their verdict. Accordingly, we find no merit in this argument.

Wal-Mart's assignment of error is overruled and the judgment of the trial court is affirmed.

BRYANT, P.J., and WALTERS, J., concur.