ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
DANIEL G. McNAMARA RICHARD K. SHOULTZ
DAVID E. BAILEY Lewis & Wagner
Rothberg Logan & Warsco, LLP Indianapolis, Indiana
Fort Wayne, Indiana
COURT OF APPEALS OF INDIANA
FRANK CERGNUL, )
vs. ) No. 53A01-0206-CV-213
HERITAGE INN OF INDIANA, INC., )
APPEAL FROM THE MONROE CIRCUIT COURT
The Honorable David L. Welch, Judge
Cause No. 53C06-9802-CT-00212
March 24, 2003
Appellant-plaintiff Frank Cergnul appeals the judgment entered in favor of the appellee-defendant Heritage
Inn of Indiana, Inc. (Heritage Inn) with regard to his cause of action
against it for negligence and premises liability. Specifically, Cergnul argues that the
trial court erroneously granted Heritage Inns motion for a judgment on the evidence
because the doctrine of res ipsa loquitur applied and enough evidence was presented
to permit the case to proceed to the jury. Concluding that res
ipsa loquitur does not apply in these circumstances and that Cergnul failed to
present any evidence of Heritage Inns negligence to support his claim, we affirm
the trial courts grant of a directed verdict in Heritage Inns favor.
Heritage Inn owned and operated a Super 8 hotel in Bloomington. In
September 1995, certain renovations at the hotel were performed where the railings in
the stairway were removed and reattached to the wall following the replacement of
On February 16, 1996, Cergnul rented a room at the Super 8 and
had used the hotel stairway on at least two occasions without incident.
Later that day, however, Cergnul again began to ascend the hotel stairway.
As he climbed the stairs, Cergnul grabbed the bottom of the railing and
thought it appeared to be secure. However, on this occasion, the stair
railing came out of the wall and Cergnul fell. As a result
of the incident, Cergnul was injured. Cergnul noticed that the top portion of
the railing had come out of the wall while the bottom remained attached.
He also observed a large screw and some drywall dust near the
On February 13, 1998, Cergnul filed a premises liability action against Heritage Inn,
alleging that the hotel should be held liable for his injuries because it
had negligently installed and maintained the handrail. A jury trial commenced on
April 30, 2002, and Cergnul called Dorothy Duhr, the general manager of the
hotel, to testify. Duhr acknowledged that while she never physically inspected the
hand railings, she would often use them as a steadying device when climbing
the stairs. Duhr stated that she never encountered an instance where the
railings appeared to be loose. She also testified that no one, including
the hotels cleaning staff and other guests, ever reported a problem where the
handrails might have required attention or maintenance.
After Cergnul presented his case-in-chief, Heritage Inn moved for a judgment on the
evidence, claiming that Cergnul did not produce sufficient evidence on the issue of
negligence to permit the case to go to the jury. In opposition,
Cergnul argued that the doctrine of res ipsa loquitur applied and the jury
was warranted in inferring negligence on the part of Heritage Inn. Alternatively,
Cergnul argued that he presented enough evidence of negligence so as to allow
the case to proceed. In the end, the trial court granted Heritage
Inns motion and Cergnul now appeals.
DISCUSSION AND DECISION
I. Standard of Review
In resolving the issues that Cergnul presents, we note that a motion for
a judgment on the evidence should be granted only when an issue in
the case or an essential element of the claim is not supported by
sufficient evidence. Wellington Green Homeowners Assn v. Parsons, 768 N.E.2d 923, 925-26
(Ind. Ct. App. 2002), trans. denied. We look only to the evidence
and reasonable inferences therefrom most favorable to the non-moving party. Id.
If there is any probative evidence or reasonable inference to be drawn therefrom
or if there is evidence that would allow reasonable people to differ as
to the result, judgment on the evidence is improper. Id. at 926.
II. Cergnuls Claims
A. Applicability of Res Ipsa Loquitur
Cergnul claims that the trial court erred in refusing to apply the doctrine
of res ipsa loquitur to the circumstances here. Specifically, Cergnul maintains that
the elements of that doctrine were proven during his case-in-chief and, therefore, the
grant of Heritage Inns motion for judgment on the evidence was error.
Res ipsa loquitur 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.
In certain circumstances, this doctrine will permit the inference of negligence.
K-Mart Corp. v. Gipson, 563 N.E.2d 667, 669 (Ind. Ct. App. 1990), trans.
denied. Specifically, res ipsa loquitur permits an assumption that in some situations
an occurrence is so unusual that, absent a reasonable justification or explanation, those
persons in control of the situation should be held responsible. Shull, 477
N.E.2d at 926. Before the doctrine will apply, the plaintiff must present
evidence that (1) the injuring instrumentality is under the exclusive control of the
defendant, and (2) the accident is one which in the ordinary course of
things does not happen if those who control the instrumentality use proper care.
Id. at 927. If facts are introduced to support these elements,
a permissive inference of negligence will exist. Deming Hotel Co. v. Prox,
236 N.E.2d 613, 620 (Ind. Ct. App. 1968). By the same token,
negligence may not be inferred from the simple fact that an injury occurred.
See K-Mart, 563 N.E.2d at 669.
In cases involving premises liability, our supreme court has determined that a landowner
owes an invitee
See footnote a duty to exercise reasonable care for his protection while
he is on the landowners premises.
Burrell v. Meads, 569 N.E.2d 637,
639 (Ind. 1991). It has also been established that the landowner is
not absolutely liable for, or an insurer of, the invitees safety. Hopper
v. Colonial Motel Props., Inc., 762 N.E.2d 181, 189 (Ind. Ct. App.
2002), trans. denied. Specifically, in Burrell, the Restatement (Second) of Torts §
343 (1965) was adopted to define the duty to an invitee:
A possessor of land is subject to liability for physical harm caused to
his invitees by a condition on the land, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition,
and should realize that it involves an unreasonable risk of harm to such
(b) should expect that they will not discover or realize the danger, or
will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Burrell, 569 N.E.2d at 639-40.
In the instant case, Cergnul places great emphasis upon this courts holding in
K-Mart v. Gipson for the proposition that res ipsa loquitur should apply here
because the railing was under the exclusive control of Heritage Inn, notwithstanding the
Super 8 managers testimony that an independent contractor had attached the railing when
the interior of the hotel was renovated. In K-Mart, the defendant-department
store installed a rack made of heavy metal wire, affixed with wire hooks,
that stood approximately seven feet off the ground that held wind chimes.
Id. at 670. As Gipson, a prospective customer, approached the rack and
touched the chimes, the fixture fell and knocked her off her feet.
Id. As a result, Gipson sued K-Mart for the injuries she sustained, alleging
that the store should be responsible under res ipsa loquitur. The jury
entered a verdict in Gipsons favor and the store appealed alleging that insufficient
evidence was presented to permit the case to go to the jury.
Id. at 668-69. K-Mart argued that Gipson failed to show that it
was in exclusive control of the rack at the time of the accident.
Id. at 671. On appeal, however, this court observed that Gipson
presented evidence that the rack had been installed by K-Marta fact that was
necessary to establish exclusive control. Specifically, we observed that:
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 racks fall.
Id. at 670-71. We also agreed with Gipsons contention that display racks
do not ordinarily fall in the absence of someones negligence. Id. at
670.B. Probability of Negligence
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
8s manager nor any of the hotel employees experienced any difficulties with the
railing prior to Cergnuls fall. Even Cergnul did not encounter a problem
before the railing came off the wall. Appellees App. p. 23, 25.
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 Inns 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.
The circumstances in K-Mart are markedly different from those presented here. Unlike
the situation in K-Mart where a display rack crashed to the floor and
it was shown that the agents of the store had installed the device
and were responsible for maintaining it, we will not infer negligence on the
part of Heritage Inn for the broken stair railing in these circumstances.
To be sure, Heritage Inn was not an insurer of Cergnuls safety and
there was no evidence demonstrating that the hotel was alerted to any potential
problem with the railing prior to Cergnuls fall. Thus, we cannot say
that Cergnuls accident was one which in the ordinary course of things does
not happen if those who control the instrumentality use proper care. See
Shull, 477 N.E.2d at 927. As a result, Cergnul failed to satisfy the
requirements of the res ipsa loquitur doctrine, and the trial court properly entered
a judgment on the evidence for Heritage Inn.
In a closely related argument, Cergnul goes on to assert that even if
the res ipsa loquitur doctrine does not apply, specific and sufficient evidence of
negligence was offered at trial that would warrant the case to be submitted
to the jury. In essence, Cergnul contends that the evidence was sufficient
to support the conclusion that Heritage Inn negligently failed to discover and correct
the improper attachment of the railing prior to Cergnuls fall. Appellants Br.
In addressing this claim, we turn to this courts opinion in Wellington Green
Homeowners Assn v. Parsons, 768 N.E.2d 923 (Ind. Ct. App. 2002), for guidance.
In Wellington Green, Parsons, a mail carrier, was delivering mail to residents
at a condominium complex. This complex used a multi-box mailbox where a
central location was placed for use by the individual condominium owners. Id.
at 924. Screws had been placed in the drywall to secure the
mailbox, rather than in the studs. Id. at 925.
On one occasion, Parsons used his key and attempted to jiggle the mailbox
open. At some point, the box came out of the wall and
caused Parsons to lose his balance and sustain an injury. Id. at
924-25. As a result, Parsons sued the management company and owners of
the condominium property.
During the trial, it was established that neither the management company nor the
property owner had knowledge of any problems with the mailbox. The maintenance
technician for the management company testified that he did not check the mailboxes
to make sure they were securely attached to the wall. Id. at
927. He also testified that he could not see behind the mailboxes
because only the postal service possessed a key to open the boxes that
would permit their removal from the wall. Id. at 927-28. Furthermore,
the maintenance technician acknowledged that the management company had not received reports of
any problems with the mailboxes by any of its residents. Id. at
927. After Parsons presented his case-in-chief, the management company and owners moved
for a judgment on the evidence that was subsequently denied by the trial
court. Following a jury verdict entered in Parsons favor, the management company
and owners appealed.
We reversed the trial court and concluded that the management company was entitled
to a judgment on the evidence. Id. at 929. In so
doing, we observed that Parsons completely failed to prove that the appellants possessed
either actual or constructive knowledge of any problems with the mailbox. Specifically,
we noted that:
The [landowners] were hindered in their ability to inspect the multi-box mailboxes.
Granted, [the maintenance technician] stated that he could have jiggled the multi-box
mailboxes to see if they were securely attached to the wall. However,
there was never a reason to do so, as there was no evidence
of any complaints made by tenants of [the condominium complex], or by another
mail carrier, regarding the multi-box mailboxes. Moreover, there was no evidence that
the [landowners] installed the multi-box mailboxes. Thus, there was no evidence that
the [landowners] were aware of how the multi-box mailboxes were attached to the
wall, i.e. whether the screws were attached to the studs or to the
Id. at 928. CONCLUSION
Here, Cergnul acknowledged that he did not look into the hole in the
wall in order to determine how the screw had been attached. Additionally,
like the circumstances in Wellington Green, the manager of the Super 8 did
not conduct any type of inspection where she physically shook or jiggled the
railing to see whether it was loose. Appellees App. p. 36.
She used the railing and had no reason to believe that it may
have been loose. Appellees App. p. 35-37. As set forth above,
no complaints were ever received indicating that the railing might have been damaged.
Additionally, Cergnul acknowledged that his wife and daughters also used the stairs and
did not experience any problems with the railing. Appellees App. p. 23-24.
Only seconds before the fall, Cergnul grabbed the lower portion of the
railing and it felt secure. Appellees App. p. 29. Thus, it
is apparent that Cergnul was not aware of any problem with the railing
immediately before it came out of the wall. Even so, Cergnul argues
that the jury could have concluded that Heritage Inn was negligent because the
railing was anchored in drywall instead of wall studs. Appellants Br. p.
12. However, no evidence was presented that Heritage Inn possessed either actual
or constructive knowledge that there may have been a problem with the railing.
Thus, no issue was preserved for the jurys consideration with respect to
In conclusion, the trial court properly granted Heritage Inns motion for judgment on
the evidence because the doctrine of res ipsa loquitur does not apply in
these circumstances. Heritage Inns motion was also properly granted because Cergnul failed
to present any evidence establishing that Heritage Inn had, or should have had,
any knowledge that the stair railing was improperly attached to the wall.
RILEY, J., and MATHIAS, J., concur.
The parties do not dispute that Cergnul was an invitee
on Heritage Inns property.