Baxter v. Cramco
Annotate this CaseSeptember 1992 Term
___________
No. 20923
___________
MARGARET J. BAXTER,
Plaintiff Below, Appellee
v.
CRAMCO, INC., ALTON D. SHAWVER,
AND LILLIAN P. SHAWVER,
Defendants Below
ALTON D. SHAWVER,
Appellant
_______________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable John Hey, Judge
Civil Action No. 88-C-602
REMANDED
________________________________________________________
Submitted: September 22, 1992
Filed: December 16, 1992
Brian M. Kneafsey, Jr.
Hunt & Wilson
Charleston, West Virginia
Attorney for the Appellee
William E. Mohler
Charleston, West Virginia
Attorney for the Appellant
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "Before the doctrine of res ipsa loquitur is
applicable, three essentials must exist: (1) the instrumentality
which causes the injury must be under the exclusive control and
management of the defendant; (2) the plaintiff must be without
fault; and, (3) the injury must be such that in the ordinary course
of events it would not have happened had the one in control of the
instrumentality used due care." Syllabus Point 2, Royal Furniture
Co. v. Morgantown, 164 W. Va. 400, 263 S.E.2d 878 (1980).
2. "'"The doctrine of res ipsa loquitur cannot be
invoked if the defendant does not have control or management of the
premises or operations where the accident occurred; or where there
is divided responsibility, and the unexplained accident may have
been the result of causes over which defendant had no control."
Point 1, Syllabus, Laurent v. United Fuel Gas Co., 101 W. Va. 499,
133 S.E. 116.' Syllabus point 3, Walton v. Given, 158 W. Va. 897,
215 S.E.2d 647 (1975)." Syllabus Point 2, Bronz v. St. Jude's
Hospital Clinic, 184 W. Va. 594, 402 S.E.2d 263 (1991).
3. "Res ipsa loquitur is not available when divided control exists unless it is established either that the control of the responsible party caused the accident or that other parties having control were not responsible. However, if no evidence is presented on this issue, summary judgment may be appropriate." Syllabus Point 5, Bronz v. St. Jude's Hospital Clinic, 184 W. Va. 594, 402 S.E.2d 263 (1991).
Per Curiam:
This personal injury case is before us on appeal from the
Circuit Court of Kanawha County. The appellant, Alton D. Shawver,
was a defendant in the suit brought by Margaret Baxter against Mr.
Shawver, his wife (who has since died), and Cramco, Inc., a
manufacturer of dinette sets, for injuries she received when a
chair in which she was sitting broke. The jury found that Mr.
Shawver's negligence proximately caused Ms. Baxter's injuries, and
that neither Ms. Baxter nor Cramco, Inc., were negligent. Mr.
Shawver asks us to set aside the jury verdict.
Ms. Baxter was employed in the Shawvers' home, beginning
in September of 1986, primarily as a caretaker for Mrs. Shawver,
who had suffered a stroke. Her duties included preparing meals for
the couple and feeding Mrs. Shawver. On May 6, 1987, the date of
the accident, Ms. Baxter had seated Mrs. Shawver in a chair at the
kitchen table. Ms. Baxter was seated in another chair which was
part of the same dinette set. The telephone rang and Ms. Baxter
reached back to answer it. As she did so, the chair apparently
collapsed and Ms. Baxter fell. She was knocked unconscious briefly
and, when she regained consciousness, found that she was pinned
between the chair and the wall. The Shawvers' niece, with whom Ms.
Baxter had been speaking on the telephone, suggested that Ms.
Baxter go to the hospital. Ms. Baxter, however, worked until later
that afternoon, then went to see her physician. Since the
accident, she has suffered back pain and has been unable to work.
Ms. Baxter brought this civil action in the Circuit Court
of Kanawha County, alleging negligence on the part of Cramco, Inc.,
the manufacturer of the chair, and the Shawvers.See footnote 1 At trial, the
jury found no negligence on the part of Ms. Baxter or Cramco. They
did, however, find that Mr. Shawver's negligence was a proximate
cause of the accident and awarded Ms. Baxter damages in the amount
of $63,356.86.
Mr. Shawver appeals, arguing that the case should not
have gone to the jury with plaintiff's res ipsa loquitur
instructionSee footnote 2 to which the defendant had objected. We agree, and
remand the case to the circuit court.
Plaintiff's Instruction No. 17 on res ipsa loquitur
accurately enunciated our law, as stated in Syllabus Point 2 of
Royal Furniture Co. v. Morgantown, 164 W. Va. 400, 263 S.E.2d 878
(1980):
"Before the doctrine of res ipsa
loquitur is applicable, three essentials must
exist: (1) the instrumentality which causes
the injury must be under the exclusive control
and management of the defendant; (2) the
plaintiff must be without fault; and, (3) the
injury must be such that in the ordinary
course of events it would not have happened
had the one in control of the instrumentality
used due care."
The problem lies, however, not in the content of the
instruction, but in the application of the doctrine to this case.
It is well settled law that to be held responsible under a res ipsa
loquitur theory, the defendant must have had control over the
instrumentality of the accident. As we stated in Syllabus Point 2
of Bronz v. St. Jude's Hospital Clinic, 184 W. Va. 594, 402 S.E.2d 263 (1991):
"'"The doctrine of res ipsa loquitur
cannot be invoked if the defendant does not
have control or management of the premises or
operations where the accident occurred; or
where there is divided responsibility, and the
unexplained accident may have been the result
of causes over which defendant had no
control." Point 1, Syllabus, Laurent v.
United Fuel Gas Co., 101 W. Va. 499, 133 S.E. 116.' Syllabus point 3, Walton v. Given, 158
W. Va. 897, 215 S.E.2d 647 (1975)."
In this case, Ms. Baxter did not sufficiently establish
that Mr. Shawver had exclusive control over the chair. The
situation was apparently one of divided control. The Shawvers
purchased the dinette set and used it in their home. There is no
evidence regarding which of them, Mr. or Mrs. Shawver, had primary
responsibility for the maintenance of the chairs. There is
evidence that the chair had been taken apart and rewelded. There
is no evidence, however, regarding who authorized or performed the
repairs.
We sought to further clarify this issue of divided
control in a res ipsa loquitur case in Syllabus Point 5 of Bronz:
"Res ipsa loquitur is not available
when divided control exists unless it is
established either that the control of the
responsible party caused the accident or that
other parties having control were not
responsible. However, if no evidence is
presented on this issue, summary judgment may
be appropriate."
While Bronz involved a summary judgment issue, its principles are
applicable to the evidence necessary to invoke the doctrine at
trial. Because the jury verdict was based on the theory of res
ipsa loquitur, which was improperly applied, we remand the case to
the circuit court for further proceedings consistent with this
opinion.
Remanded.
Footnote: 1Upon her death, Mrs. Shawver was dismissed a party
defendant, and no substitution of her estate was made.
Footnote: 2Plaintiff's Instruction No. 17, as given, reads:
"In ordinary cases the mere fact
that an accident happened does not furnish
evidence that it was caused by any person's
negligence and the plaintiff must point to
some negligent act or omission on the part of
the defendant Shawver.
"However, if you find that:
"1. The means of instrumentality
causing the accident was under the exclusive
control of the defendant Shawver; and
"2. The accident was not due to
any voluntary action or contribution on the
part of the plaintiff which was the
responsible cause of the injury; and
"3. An accident has occurred which
normally would not have occurred if the
defendant Shawver had used ordinary care;
then you may find that the accident and
ensuing injury were caused by the negligence
of the defendant Shawver."
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