[Cite as Moore v. Grismer Tire Co., 2012-Ohio-1775.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                    MIAMI COUNTY

RYAN MOORE                                        :
                                                  :     Appellate Case No. 2011-CA-31
        Plaintiff-Appellant                       :
                                                  :     Trial Court Case No. 2011-CV-2437
v.                                                :
                                                  :
GRISMER TIRE COMPANY                              :     (Civil Appeal from Miami County
                                                  :     (Municipal Court)
        Defendant-Appellee               :
                                                  :

                                             ...........

                                             OPINION

                              Rendered on the 20th day of April, 2012.

                                             ...........

STEPHEN E. KLEIN, Atty. Reg. #0014351, Klein, Tomb & Collins, LLP, 240 Bohanan
Drive, Vandalia, Ohio 45377
       Attorney for Plaintiff-Appellant

JOHN K. BENINTENDI, Atty. Reg. #0063690, Post Office Box 145496, Cincinnati, Ohio
45250
and
STEVEN F. STOFEL, Atty. Reg. #0073332, 130 West Second Street, Suite 1850, Dayton,
Ohio 45402
       Attorneys for Defendant-Appellee

                                                       .............

HALL, J.

        {¶ 1}    Ryan Moore appeals from the trial court’s entry of final judgment against him

on his complaint against appellee, Grismer Tire Company, alleging negligence and a violation
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of the Ohio Consumer Sales Practices Act (CSPA).

       {¶ 2}     Moore advances three assignments of error on appeal. First, he contends the

trial court erred in failing to apply the doctrine of res ipsa loquitur. Second, he claims the trial

court erred in deciding the case based on his purported lack of credibility. Third, he asserts that

the trial court erred in failing to find a CSPA violation.

       {¶ 3}     The record reflects that Moore took his 2000 Toyota Celica to Grismer for an

oil change on May 11, 2009. After having the oil changed, he drove the car 3,870 miles

without incident over a two-month period. Then, on July 9, 2009, the car’s oil light

illuminated as Moore was driving on the interstate. He pulled off the road and noticed oil on

the pavement. He had the car towed to a repair shop. An examination of the engine revealed

that the oil drain plug was missing, which had caused the engine to lose its oil. The loss of oil

ruined the engine.

        {¶ 4}    On October 1, 2009, Moore sued Grismer, alleging that its employee, Hank

Banks, had not properly tightened the oil drain plug after changing his car’s oil. The case

proceeded to a bench trial before a magistrate. Moore testified that he checked his oil a month

or so after the oil change and that the oil level was normal. Moore also testified that no oil had

leaked on his concrete driveway or garage floor between May 11, 2009, and July 9, 2009. On

cross examination, Moore testified about notes he and his father had written concerning the

incident on July 9, 2009. Although he was unsure, Moore thought the notes had been written

before he had his engine replaced. Among other things, the notes made reference to the

number of threads on the oil plug. Moore stated that he was unsure whether he had the missing

oil plug in his possession when he compiled the notes but that he did not believe so.
                                                                                              3


       {¶ 5}    The next witness was Jay Hensley, a mechanic who testified as an expert for

Moore. Hensley testified that an oil drain plug “should not ever fall out” if it is tightened

properly. Hensley further testified that he had examined the threads on the Celica’s oil pan and

that they looked good. This observation led him to believe that damaged threads did not cause

Moore’s car to lose its oil plug. He opined that the oil plug “had to be left loose” by “whoever

changed the oil.” On cross examination, Hensley admitted that an oil plug can come out for

two reasons: either someone removes it or it falls out after being improperly installed. He

acknowledged not knowing whether Grismer improperly installed the oil plug by not

tightening it enough. Hensley also testified about his experience performing oil changes. He

stated that oil starts to “seep” or “drip” as the drain plug is loosened. Despite having more than

thirty-two years of experience, he was unable to recall a situation where a loose drain plug had

failed to leak oil. Finally, he stated that either the Grismer employee who performed the oil

change failed to tighten the plug or someone later loosened it.

       {¶ 6}    A second mechanic, Robert Cross, also testified as an expert for Moore. Cross

testified that if the Grismer employee had reinserted the oil drain plug properly it should not

have fallen out on July 9, 2009. Cross also opined that the plug in Moore’s car could have

been left loose by the Grismer employee and not leaked or dripped any oil prior to falling out.

Cross stated that he occasionally finds a very loose drain plug that is not leaking oil when he

performs oil changes. He recognized two possible reasons why Moore’s plug fell out on July

9, 2009: either someone removed it or it was not properly tightened by Grismer. Cross

admitted not knowing which event had occurred.

       {¶ 7}    The last witness was Hank Banks, the Grismer employee who had performed
                                                                                              4


Moore’s oil change. After being qualified as an expert witness for the defense, Banks testified

about the procedure he uses when he performs oil changes. He explained that he marks the oil

pan and drain plug with a paint line as part of the procedure. That way, he can tell if the plug

has been tampered with or removed after his oil change. Banks could not examine Moore’s

plug after the July 9, 2009, incident because he was not provided with it. Banks testified,

however, that he knows he tightened the drain plug because he examined Moore’s oil pan after

the incident and saw his paint mark on it. Banks explained: “I’m not gonna mark it unless I

know it’s tight.” Banks also testified that Moore’s car would have started leaking oil soon

after his oil change if the drain plug had been too loose. According to Banks, “[i]f [the plug] is

backed out in any little bit, you’re going to get leaks, and, uh, not to mention if they are left

loose, an engine puts off standard harmonic vibrations, like a lawnmower. And it would

actually vibrate the drain plug out a lot sooner than the mileage that was indicated on the

vehicle.” Banks added that he had never seen a car travel 3,870 miles with a loose oil drain

plug and not leak before the plug fell out. Later, on cross examination, Banks reiterated his

opinion, stating: “[P]rior to [a drain plug falling out], it’s not going to come out all of the

sudden. It takes time. And during that time, oil will seep past the threads of the pan and the

drain plug. Therefore, leaving traces of oil on garage floors, roads, whatever. It’s gonna leave

traces of oil.”

        {¶ 8}     After considering the evidence, the magistrate filed an April 28, 2011 decision

and entry, ruling in favor of Grismer on Moore’s claims. In his ruling, the magistrate declined

to apply the doctrine of res ipsa loquitur. The magistrate also found that Moore had failed to

prove negligence by a preponderance of the evidence. In reaching this conclusion, the
                                                                                                  5


magistrate described Moore’s testimony as “not particularly credible.” The magistrate then

rejected the CSPA claim, noting that it was predicated on Banks having negligently changed

the oil.

           {¶ 9}   In response to a subsequent motion by Moore, the magistrate filed “Specific

Findings of Fact and Conclusions of Law” on July 25, 2011.                   Therein, the magistrate

expressly found that Moore and his witnesses were not credible. The magistrate further found

that Grismer employee Banks had followed “the standard procedure with respect to tightening

the oil drain plug and marking it with a paint-line[.]” The magistrate also found a lack of

sufficient, credible evidence to show that the loss of oil on July 9, 2009, “was proximately

caused by the negligence of the Defendant or the Defendant’s employee or by some deviation

of the standard of care for this type of work by the Defendant or its employee.” Moore filed

objections to the magistrate’s ruling.

           {¶ 10} The trial court overruled the objections on November 29, 2011. It reasoned in

part:

                   * * * While the Court has the duty to independently review the decision

           of the Magistrate when an objection is filed to that decision its clear from

           reviewing the transcript, that the Magistrate could reasonably conclude that

           Plaintiff had failed to provide sufficient evidence establishing that the

           Defendant had committed negligence with respect to the changing of the oil of

           the Plaintiff’s automobile. The Magistrate appears to have determined that the

           Plaintiff failed to establish that the doctrine of res ipsa loquitur applied in this

           case. While Plaintiff’s car was clearly in the exclusive possession of the
                                                                                     6


Defendant while the oil change was performed by the Defendant, there is no

question that the Plaintiff had the exclusive care, custody and control of the car

for eight weeks and 3,870 miles before the damage occurred to the Plaintiff’s

car for which he is now suing the Defendant for damages.

       The Magistrate, who had a chance to observe the demeanor of the

parties as well as to listen to their testimony, found that the Plaintiff and his

witnesses were not credible. Based upon an independent review of the

transcript, it would appear that the Magistrate was correct. The Plaintiff was

asked upon cross examination to review Defendant’s Exhibit H and was then

asked if he had the drain plug in his possession at the time he and his father

wrote the note marked Defendant’s Exhibit H. The Plaintiff responded that he

did not know and that he wasn’t sure. The same exhibit contained a notation

made by the Plaintiff about how many threads were on the oil drain plug. It is

clear that had the drain plug been available for review by all the parties and

their respective witnesses, it would have been more likely than not that the

issue would have been resolved conclusively. The Court finds that the

Magistrate’s finding appears to be correct.

       As to the issue of a possible violation of the Consumer Sales Practices

Act, the Court finds that there does not appear to be any error of findings of

fact or conclusions of law with regards to the Magistrate’s decision. Since there

does not appear to be sufficient credible evidence presented by the Plaintiff

supporting his contention of negligence with regards to the actions of the
                                                                                             7


       Defendant relating to the oil change of May 11, 2009, there can be no finding

       of a violation of the CSPA. As the Defendant correctly argued in its brief, the

       Plaintiff himself testified that he had no facts to support the allegation that the

       Defendant was negligent in any way with the installation of the oil drain plug

       or causing damage to his vehicle. * * *

(Final Entry, Doc. #44 at 1-2).

       {¶ 11} In his first assignment of error, Moore contends the trial court erred in failing

to apply the doctrine of res ipsa loquitur. According to Moore, if Grismer employee Hank

Banks had tightened the oil drain plug properly, it would not have fallen out. Moore reasons

that Banks had exclusive control over the drain plug, that he must not have tightened the plug

enough, and that his failure to do so was the proximate cause of the engine failure. Therefore,

he asserts that the case fits within the res ipsa loquitur doctrine, which “allows a common

sense appraisal of the circumstances surrounding an unusual accident, permitting a [trier of

fact] to draw the obvious conclusion that the accident was the defendant’s fault and requiring

the defendant to explain why the accident was not his fault.” Estate of Hall v. Akron Gen.

Med. Ctr., 125 Ohio St.3d 300, 2010-Ohio-1041, 927 N.E.2d 1112, ¶17.

       {¶ 12} “The doctrine of res ipsa loquitur is a rule of evidence permitting, but not

requiring, the factfinder to ‘draw an inference of negligence when the logical premises for the

inference are demonstrated.’ Invoking the doctrine is ‘merely a method of proving the

defendant’s negligence through the use of circumstantial evidence. (Citations omitted.)’ ”

Hunter v. Children’s Med. Cntr., 2d Dist. Montgomery. No. 17103, 1998 WL 879138, *2

(Dec. 18, 1998). Application of the rule requires evidence “ ‘(1) [t]hat the instrumentality
                                                                                               8


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.’ ” Id., quoting Hoke v. Wiedemann Brewing

Co., 23 Ohio St.2d 65,67, 262 N.E.2d 703 (1970).

       {¶ 13} We find no error in the trial court’s rejection of res ipsa loquitur here. When

Moore’s engine lost its oil on July 9, 2009, the drain plug had not been under Grismer’s

control for two months. In that time, Moore had driven his car 3,870 miles. In support of his

res ipsa argument, Moore presumes that Grismer employee Hank Banks was the last person to

touch the plug before it fell out. Therefore, he infers that the drain plug necessarily was under

Grismer’s control at the time of the creation of the condition (i.e., insufficient tightening) that

caused the engine failure.

       {¶ 14} One problem with Moore’s argument is that the evidence supports an equally

plausible, alternative inference. Moore’s own expert Jay Hensley admitted that oil typically

starts to “seep” or “drip” as an oil drain plug becomes loose. He could not recall a situation

where a loose drain plug failed to leak oil. (Trial transcript at 80-81). This testimony is

consistent with Banks’s own opinion. He testified that Moore’s car would have started leaking

oil soon after his oil change if the drain plug had been left loose. He also opined that a loose

plug would have fallen “out a lot sooner than the mileage that was indicated on the vehicle.”

Banks testified that he had never seen a car travel 3,870 miles with a loose oil drain plug and

not leak before the plug fell out. (Id. at 126-127).

       {¶ 15} The foregoing testimony, which the trial court was entitled to credit, supports
                                                                                             9


the reasonable inference that Banks properly tightened the drain plug when he changed the oil

in Moore’s car. This is so because Moore admitted that his car leaked no oil between May 11,

2009, when he had the oil changed, and July 9, 2009, when the engine lost all of its oil. (Id. at

29-31). Because the evidence reasonably supports a finding that Banks was not negligent and

that Grismer did not have exclusive control of the oil drain plug at the critical time, the trial

court’s refusal to apply res ipsa loquitur is supported by the record. Accordingly, Moore’s

first assignment of error is overruled.

       {¶ 16} In his second assignment of error, Moore claims the trial court erred in

deciding the case based on his purported lack of credibility. Moore reasons that the trial court

erred in finding his own testimony not credible, while ignoring “uncontradicted” evidence that

“[t]he last person to touch the drain plug proximately caused the motor damage” and that

“Grismer’s employee was the last person to touch the drain plug.”

       {¶ 17} Upon review, we find Moore’s argument to be without merit. “The weight to

be given the evidence and the credibility of the witnesses are primarily matters for the trier of

fact to determine.” Barnett v. Combs, 2d Dist. Montgomery No. 24134, 2011-Ohio-5947, ¶24.

“We cannot reverse a decision simply because we might hold a different opinion regarding the

evidence submitted and the credibility of the witnesses.” Id. In the exercise of its fact-finding

function, the trial court was permitted to find Grismer’s witness, Hank Banks, more credible

than Moore and his witnesses.

       {¶ 18} In any event, we note that Banks’s expert and Moore’s own expert Jay

Hensley essentially agreed on a key point: Moore’s car should have been dripping oil between

May 11, 2009, and July 9, 2009, if Banks had left the oil drain plug too loose. Moore testified
                                                                                       10


that his car was not dripping oil during that time. This evidence supports a reasonable

inference that Banks properly tightened the drain plug and that, if it was loosened, someone

other than Banks loosened it after the May 11, 2009 oil change. Accordingly, Moore’s second

assignment of error is overruled.

       {¶ 19} In his third assignment of error, Moore asserts that the trial court erred in

failing to find a CSPA violation. We disagree. The CSPA claim depends on a finding that

Banks negligently performed an oil change. Because the evidence supports the trial court’s

finding that Moore failed to prove negligence, the CSPA claim necessarily fails. The third

assignment of error is overruled.

       {¶ 20} The judgment of the Miami County Municipal Court is affirmed.

                                                .............

GRADY, P.J., and DONOVAN, J., concur.

Copies mailed to:

Stephen E. Klein
John K. Benintendi
Steven F. Stofel
Hon. Elizabeth S. Gutmann
