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March 16, 2026 Get Citation Alerts Download PDF Add Note

Wagner v. Athletico, Ltd.

Ohio Court of Appeals

• Citations: 2026 Ohio 888
• Docket Number: 2025 CA 00054

• Judges: Baldwin

• Opinion

• Authorities (19)

• Cited By (0)

• Summaries (0)

• Similar Cases (14.5K)

• PDF

Syllabus

Premises liability; Directed verdict

Combined Opinion

[Cite as Wagner v. Athletico, Ltd., 2026-Ohio-888.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JON H. WAGNER, et al. Case No. 2025 CA 00054

Plaintiffs - Appellees Opinion And Judgment Entry

-vs- Appeal from the Licking County Court of
Common Pleas, Case No. 22 CV 01138
ATHLETICO, LTD.
Judgment: Reversed and Remanded
Defendant - Appellant
Date of Judgment Entry: March 16, 2026

BEFORE: David M. Gormley; Craig R. Baldwin; Robert G. Montgomery, Judges

APPEARANCES: C. JOSEPH MCCOY, for Plaintiffs-Appellees; JENNIFER L. WILSON,
JOSEPH G. BOGDEWIECZ, for Defendant-Appellant Athletico.

Baldwin, J.

{¶1} The appellant, Athletico, appeals the jury’s verdict against it and in favor of

the appellees, Jon H. and Lynda Wagner.

STATEMENT OF FACTS AND THE CASE

{¶2} Appellee Jon H. Wagner, who underwent physical therapy at appellant

Athletico’s Newark, Ohio location, suffered injuries on November 20, 2020, when a

wooden board to which resistance bands were attached broke away from the wall during

a therapy session and struck him in the forehead. The appellees filed a complaint against

the appellant, as well as John Doe defendants, on October 7, 2022, setting forth a claim

of negligence based upon an allegedly hazardous condition on the appellant’s premises.

{¶3} The appellant filed a motion for summary judgment on November 14, 2023,

in which it argued that it owed the appellees no duty because the undisputed facts
demonstrated that it had no knowledge or notice of the allegedly dangerous or hazardous

nature of the equipment. The trial court denied the appellant’s motion for summary

judgment.

{¶4} The matter proceeded to a jury trial on March 3, 2025, at which the following

testimony was presented. The appellant is a physical therapy business. The appellant,

which was previously located in Granville, Ohio, moved to a new location in Newark, Ohio

in 2019. The appellant brought equipment with it to the new location as part of the move,

including the equipment at issue in this case – the board to which resistance bands were

attached that patients used to perform strengthening exercises. The board was attached

to a wall at the new location.

{¶5} The appellant’s clinic manager S.M., who was involved in the transition of

office locations, testified that the appellant contracted out the installation of equipment,

including the board to which the resistance bands were attached. The appellant did not,

itself, install the board at issue. Instead, it was installed by an outside contractor. The

board had been up at the new location for approximately one year at the time of the

incident involving appellee Jon Wagner.

{¶6} S.M. testified that the appellant performed annual safety assessments of its

facilities, and that said assessments included assuring that wall fixtures, such as the

board at issue in this case, are secure. Furthermore, S.M. testified that he assessed the

security of the subject board every day that he was at the clinic, which included assessing

whether the bands were frayed, whether there was any potential that the bands could

break, and whether the board was secure. In addition, J.R., one of the appellant’s physical

therapy assistants, testified that he also assessed the security of the board prior to

patients using it. In fact, J.R. testified that between November 2019 and November 2020,
he had demonstrated exercises using the subject board between 100 and 200 times, and

that he had observed no defects or issues with the board or the resistance bands. J.R.

was working with appellee Jon Wagner on the day of the incident, demonstrated the

resistance band exercises using the board prior to the appellee’s use of the bands, and

oversaw the appellee’s session. J.R. did not observe any issues regarding the equipment.

{¶7} Appellee Jon Wagner testified that each time he had used the resistance

bands a member of the appellant’s staff demonstrated the exercise, and that on the date

of the incident J.R. pulled on the bands attached to the board first before the appellee

performed his exercises using the board. The appellee testified that, during these

demonstrations, he did not notice the board separating from the wall or being shaky,

defective, or hazardous in any way. He testified further that he had completed two sets of

ten repetitions using the board on the date of the incident with no issue, nor with any

indication that the board was loose or defective in any way. On his third set, the board

detached from the wall and struck his forehead. Following the incident, clinic manager

S.M. observed insulation on some of the screws on the backside of the board, which

indicated to S.M. that the board was screwed into drywall and not into a stud. However,

J.R. and S.M. both testified that the appellant’s staff had no knowledge that the bands or

the board to which they were attached were unsafe prior to the November 20, 2020,

incident. The appellees presented no evidence to the contrary, and instead relied on the

doctrine of res ipsa loquitor to establish this element of their claim.

{¶8} The appellees rested their case, and the appellant moved for a directed

verdict, arguing that the appellees had presented no evidence to demonstrate that the

appellant knew or should have known of a dangerous condition associated with the

equipment at issue. The trial court overruled the motion based upon res ipsa loquitur,
stating “… I guess I cannot say that if ordinary care had been observed by someone that

it would not have occurred. On that basis, I’ll overrule the directed verdict on the

negligence case, negligence charge.”

{¶9} The appellant presented its case and rested. It thereafter made a second

motion for directed verdict, arguing that it had no notice of any defect regarding the subject

equipment, and that res ipsa loquitur was inapplicable because the cause of the incident,

i.e., improper installation of the equipment by another company, was known. The trial

court overruled the appellant’s second motion for directed verdict, stating, “…this certainly

would appear to come under the res ipsa law that but for ordinary care this would not

have occurred.” The trial court stated further that “I don’t disagree there’s been no

knowledge of any defect or problem there.” The jury was instructed on, inter alia, res ipsa.

{¶10} The matter was submitted to the jury, who returned a verdict in favor of the

appellees and awarded them a total of $110,000.00, $100,000.00 to appellee Jon Wagner

for his injuries and $10,000.00 to appellee Lynda Wagner for loss of consortium. The

appellant filed a timely appeal, and sets forth the following four assignments of error:

{¶11} “I. THE TRIAL COURT ERRED IN FAILING TO GRANT SUMMARY

JUDGMENT TO ATHLETICO AS TO APPELLEES’ CLAIMS.”

{¶12} “II. THE TRIAL COURT ERRED IN DENYING ATHLETICO’S MOTION

FOR DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT

WHERE APPELLEE FAILED TO PRESENT EVIDENCE OF KNOWLEDGE TO

ESTABLISH A DUTY OWED.”

{¶13} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FURNISHING

INCORRECT AND UNWARRANTED JURY INSTRUCTIONS.”
{¶14} “IV. THE JURY’S VERDICT IS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE AND IS CONTRARY TO LAW, WARRANTING A NEW TRIAL.”

{¶15} For ease of analysis, and because we find the appellant’s second

assignment of error to be dispositive, we will address the assignments of error out of

order.

ASSIGNMENT OF ERROR NO. II

{¶16} The appellant argues in its second assignment of error that the trial court

erred when it denied its motion for directed verdict and judgment notwithstanding the

verdict. We agree.

Standard Of Review

{¶17} "The standard of review for the grant or denial of a motion for directed

verdict is: whether there is probative evidence which, if believed, would permit reasonable

minds to come to different conclusions as to the essential elements of the case,

construing the evidence most strongly in favor of the non-movant. Sanek v. Duracote

Corp. (1989), 43 Ohio St.3d 169, 172, 539 N.E.2d 1114." Stark Cty. Bd. of Commrs. v.

Eslich Wrecking Co., 2002-Ohio-2656, ¶ 10 (5th Dist.). “When ruling on a motion for

JNOV, a trial court applies the same test as in reviewing a motion for a directed verdict.”

Teeter v. Ball Jar Corp., 2020-Ohio-6997, ¶ 57 (5th Dist.).

Analysis

{¶18} The case sub judice is a personal injury case in which the appellees argued

that the appellant was negligent in failing to maintain its premises in a safe condition and

to warn of hazardous conditions thereon. The case of Keister v. Park Center Lanes, 3

Ohio App.3d 19 (5th Dist. 1981), although primarily a summary judgment case, is

instructive regarding the analysis in negligence cases. The Keister court stated:
Compare a negligence case to a hurdle race. Plaintiff runs the race

alone at first. Plaintiff's run to the finish line (verdict), is interrupted by

several hurdles, each of which must be crossed in succession before he

gets into the stretch -- the foot race to the finish line. Until he crosses all the

hurdles he is in the hands of the judge. Legal questions are involved. When

he reaches the stretch the race to the finish line is in the hands of the jury

(fact finder).

---

Plaintiff's hurdles. Plaintiff's first hurdle is DUTY. He must identify a

duty, or duties, owed him by the defendant. Because this is a law question

he crosses the hurdle if he alleges and identifies the duty.

The second hurdle is BREACH of duty. The dimensions of the hurdle

are fixed by the nature of the duty. Breach of duty is generally a question of

fact. However, the jury has no right to consider the question (i.e., the plaintiff

does not cross the hurdle) unless the evidence in the specific case allows

the inference that a specific duty was breached. Otherwise, as a matter of

law, plaintiff fails to clear the duty hurdle.

Id. at 22. Thus, in this case, the appellees were required to establish a duty on the part of

the appellant to overcome the first and second hurdles. The appellees, however, failed to

overcome both the first and second hurdles, and thus failed to overcome the duty hurdle.

{¶19} It is undisputed that appellee Jon Wagner was an invitee on the appellant’s

premises. The issue of the duty owed to an invitee by a premises owner was addressed

by this Court in Ball v. New Era Golf BT Inc., 2022-Ohio-2125 (5th Dist.):
To prove a breach of the duty of care in a premises-liability action,

the plaintiff must establish either (1) the defendant, through its officers or

employees, was responsible for the hazard; (2) the defendant had actual

knowledge of the hazard and neglected to promptly remove it or give

adequate notice of its presence; or (3) the hazard existed for a sufficient

length of time to reasonably justify the inference that the failure to remove

it or warn against it was attributable to a lack of ordinary care. Simmons

2016-Ohio-525, ¶ 26, 60 N.E.3d 454 citing Johnson v. Wagner Provision

Co., 141 Ohio St. 584, 589, 49 N.E.2d 925 (1943).

Id. at ¶ 25. The Ball Court stated further:

… In negligence cases, the foreseeability of an injury is the core of

whether a duty is owed to the plaintiff. See Clark v. Barcus, 5th Dist.

Muskingum No. CT2017-0019, 2018-Ohio-152, 2018 WL 456222, ¶ 20

citing Menifee v. Ohio Welding Prods., Inc. 15 Ohio St.3d 75, 77, 15 Ohio

B. 179, 472 N.E.2d 707 (1984).

"Where negligence revolves around the existence of a hazard or

defect, a duty of reasonable care does not arise unless the defendant has

notice, either actual or constructive, of such hazard or defect." Bieber v.

Perry Cnty. Bd. of Comm'rs, 5th Dist. Perry No. 2019 CA 00016, 2020-Ohio-

3996, 2020 WL 4558073, ¶ 32 quoting Cone v. City of Canton, 5th Dist.

Stark No. 2017CA00043, 2017-Ohio-8035, 2017 WL 4350971, ¶ 14 quoting

Davis v. City of Akron, 9th Dist. Summit No. 19553, 2000 Ohio App. LEXIS

843, 2000 WL 254900, *1 (Mar. 8, 2000), citing Heckert v. Patrick, 15 Ohio

St.3d 402, 15 Ohio B. 516, 473 N.E.2d 1204 (1984)."Notice may be actual
or constructive, the distinction being the manner in which the notice is

obtained rather than the amount of information obtained." Bieber, 2020-

Ohio-3996, ¶ 35 quoting Current v. Ohio Dep't of Rehab. & Correction,

2020-Ohio-1247, 153 N.E.3d 648, 2020 WL 1528434, ¶ 8 citing Hughes v.

Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-1052, 2010-Ohio-4736,

¶ 14. Actual notice exists where the information was personally

communicated to or received by the party. Id. "Constructive notice is that

notice which the law regards as sufficient to give notice and is regarded as

a substitute for actual notice." Id., citing In Re Estate of Fahle, 90 Ohio App.

195, 197, 105 N.E.2d 429 (6th Dist.1950).

Id. at ¶ 26-27.

{¶20} In the case before us, there was no evidence establishing that the appellant

had notice, actual or constructive, regarding the potentially hazardous condition of the

board to which the resistance bands were secured. Instead, the appellees, and the trial

court, erroneously relied upon the doctrine of res ipsa loquitor to make this analytical leap.

{¶21} Res ipsa loquitor was recently discussed by this Court in Austin v.

OhioHealth Mansfield Hosp., 2025-Ohio-4932 (5th Dist.):

"The doctrine of res ipsa loquitur is not a substantive rule of law

furnishing an independent ground for recovery." Jennings Buick, Inc. v. City

of Cincinnati, 63 Ohio St.2d 167, 169, 406 N.E.2d 1385 (1980). Rather, the

doctrine "is an evidentiary rule which permits, but does not require, a jury to

draw an inference of negligence from circumstantial evidence." King v.

Emergency Med. Transp., Inc., 2024-Ohio-2542, ¶ 25, 247 N.E.3d 1075

(5th Dist.), citing Estate of Hall v. Akron Gen. Med. Ctr., 125 Ohio St. 3d
300, 2010-Ohio-1041, ¶ 16, 927 N.E.2d 1112. Thus, the doctrine "does not

alter the nature of the plaintiff's claim in a negligence action; it is merely a

method of proving the defendant's negligence through the use of

circumstantial evidence." Jennings Buick at 170. The res ipsa loquitur rule is

most often utilized in cases involving "falling objects, passenger common

carriers, or other situations which presented a dangerous threat of serious

injury or death." (Citation omitted.) King at ¶ 25. A plaintiff need not

"specifically plead the doctrine in order to invoke it," and "specific allegations

of negligence in the complaint [do not] foreclose reliance upon it." Jennings

Buick at 169.

Where the predicate conditions of res ipsa loquitur are established,

the plaintiff is not required to offer affirmative evidence of the defendant's

negligence, but may urge the factfinder to infer the defendant's negligence

from the predicate conditions. Torres v. Gentry, 2007-Ohio-4781 (5th Dist.).

"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." Hake v. George Wiedemann Brewing Co., 23 Ohio

St.2d 65, 66-67, 262 N.E.2d 703 (1970).

The Ohio Supreme Court has stressed this rule of evidence should

only be utilized when a defendant's negligence is the only reasonable
inference from the facts. (Emphasis added.) King, 2024-Ohio-2542 at ¶ 28,

citing Estate of Hall, 2010-Ohio-1041; Jennings Buick, 63 Ohio St.2d at 169.

When there is evidence presented to the jury which would allow the jury to

find one or another potential cause of the injury is not attributable to the

negligence of the defendant, res ipsa loquitur does not apply. (Citation

omitted.) Id.

Id. at ¶¶ 28-30. See, also, King v. Emergency Med. Transp., Inc., 2024-Ohio-2542 (5th

Dist.) Both Austin and King rely upon the Ohio Supreme Court case of Estate of Hall v.

Akron Gen. Med Ctr., 2010-Ohio-1041, in which the appellant argued that res ipsa applied

to a medical malpractice case involving a dialysis-catheterization procedure. The Court

determined that res ipsa did not apply, stating:

This holding is consistent with the doctrine of res ipsa loquitur, which

was "founded upon an absence of specific proof concerning acts or

omissions which would constitute negligence." Morgan v. Children's Hosp.,

18 Ohio St.3d at 192, 480 N.E.2d 464 (Holmes, J., dissenting). Under the

evidence presented in this case, there are two equally efficient and probable

causes of the injury; thus, it would have been improper to instruct the jury

that it could infer negligence. Based on the evidence produced, this is not a

situation where it can be said that "the thing speaks for itself." Rather, this

case represents the classic battle between expert witnesses. As the court

of appeals stated, "The trier of fact must weigh the evidence and decide

which experts to believe." 2008 Ohio 4332, P 30. Consequently, the trial

court properly declined to instruct the jury on the doctrine of res ipsa

loquitur.
Id. at ¶ 35.

{¶22} In this case, evidence was presented during trial that the appellant hired an

outside company to assist in moving its physical therapy equipment, including the

resistance band board, to the new location in 2019. It was this company that installed the

board. The appellant did not install the board, and had no knowledge regarding the nature

of the installation. Thus, there was a potential cause of the injury not attributable to the

appellant – i.e., the outside company – presented to the jury. Because the jury was

presented with evidence of negligence on the part of both the appellant and the outside

company, res ipsa loquitur does not apply herein, and the trial court erred when it allowed

the appellees to rely upon res ipsa to establish the nexus between the appellant’s duty

and the appellees’ injuries.

{¶23} We are sympathetic to the injuries suffered by the appellees. However, we

are bound by the law set forth in the Estate of Hall, King, and Austin cases. Without the

application of res ipsa, the appellees cannot overcome the first and second hurdles of

their negligence claim against the appellant, and the trial court erred when it denied the

appellant’s motion for directed verdict. We find that the appellant’s second assignment of

error is well taken. It is therefore sustained, and the decision of the trial court denying the

appellant’s motion for directed verdict is reversed.

ASSIGNMENTS OF ERROR NOS. I, III, and IV

{¶24} Our decision to sustain the appellant’s second assignment of error leads to

the reversal of the trial court's decision, is dispositive, and renders the appellant’s

assignments of error numbers one, three and four moot.
CONCLUSION

{¶25} Based upon the foregoing, we sustain the appellant’s second assignment

of error, reverse the decision of the trial court denying the appellant’s motion for directed

verdict, and remand the matter for entry of a directed verdict consistent with this

opinion. Because the appellees’ claims are subject to a directed verdict, thus

concluding the case, the appellant’s assignments of error numbers one, three, and four

are moot.

{¶26} Costs to appellees.

By: Baldwin, J.

Gormley, P.J. and

Montgomery, J. concur.