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Sun Ins.9/21/1994
Per Curiam.
This appeal arises from a negligence action to recover damages caused by a house fire. Plaintiff-appellant Sun Insurance, Inc., d.b.a. Chubb Group of Insurance Companies, is the subrogee of the homeowners, and defendant-appellee Don Edwards, d.b.a. Don Edwards Painting Co., is a painting contractor. The case was tried to a jury, which returned a verdict for defendant. Plaintiff appeals, asserting as error the trial court's refusal to instruct the jury on the doctrine of res ipsa loquitur and on the law concerning dangerous instrumentalities, and the trial court's denial of plaintiff's motion for judgment notwithstanding the verdict or for a new trial. We reverse.
On August 2, 1988, defendant Don Edwards was using a heat gun to strip old paint off of a house in the Hyde Park section of Cincinnati. Defendant stripped the paint off one side of the house, took a break, and approximately ten minutes later noticed smoke rising from the area in which he had been working. The fire caused over $300,000 in damage to the house. Plaintiff's complaint included a claim against Edwards for negligent use of the heat gun, and a claim against the manufacturer of the heat gun for product risibility. The manufacturer was never served and the claim against it was dropped.
The case against Edwards was tried to a jury on July 21 through 24, 1992. Over plaintiffs objection, the trial court declined to instruct the jury on the doctrine of res ipsa loquitur and the use of dangerous instrumentalities. The trial court entered judgment upon the jury's verdict in favor of defendant and denied plaintiffs motion for judgment notwithstanding the verdict or for a new trial, and plaintiff appealed.
Plaintiff's first assignment of error claims that the trial court erred in refusing to instruct the jury regarding the applicability of res ipsa loquitur. The doctrine of res ipsa loquitur is an evidentiary rule which permits, but does not require, the jury to draw an inference of negligence when the logical premises for the inference are demonstrated. Jennings Buick, Inc. v. Cincinnati (1980), 63 Ohio St.2d 167, 17 O.O.3d 102, 406 N.E.2d 1385. The prerequisites which warrant a jury instruction on res ipsa loquitur are set forth in Jennings Buick, id. at 170, 17 O.O.3d at 104-105, 406 N.E.2d at 1388 (quoting Hake v. Wiedemann Brewing Co. , 23 Ohio St.2d 65, 66-67, 52 O.O.2d 366, 367, 262 N.E.2d 703, 705), as follows:
"To warrant application of the rule a plaintiff must adduce evidence in support of two conclusions: (1) That the instrumentality causing the injury was, at the time of the injury, or at the time of the creation of the condition causing the injury, under the exclusive management and control of the defendant; and (2) that the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed."
The record contains both a statement and testimony from defendant that he alone was using his heat gun in the area of the house where the fire began, and that the fire resulted from his use of the heat gun. Therefore, there was ample evidence to support the conclusion that the instrumentality causing the injury was under defendant's exclusive management and control at the time of the injury. We also believe there was evidence to support the second Jennings Buick prerequisite, because plaintiffs expert testified that the heat gun used by defendant was not mechanically defective, that heat guns such as the one used by defendant can safely be used to strip paint from wood buildings without danger of spontaneous combustion, and that if defendant had used the gun properly,
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