opc7021302-040103.pdf

Syllabus

1. Error in a court's refusal to give a res ipsa loquitur jury instruction is preserved for review through a motion for judgment notwithstanding the verdict. 2. When evidence shows prima facie that the accident is of a type that does not usually happen absent negligence the instrumentality that caused the accident was in the defendant's exclusive control and the plaintiff did not contribute to the accident, the plaintiff is entitled to a res ipsa loquitur jury instruction. 3. A court's failure to give a jury instruction to which a litigant is entitled is a fundamental error of law if such failure affected the outcome of the case, the litigant has been prejudiced and is entitled to a new trial. Reversed and remanded.