[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
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[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
"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.