Blankenship v. Wagner

• Decision Date: 09 February 1971
• Docket Number: No. 281,281
• Citation: 273 A.2d 412,261 Md. 37
• Parties: Ronald K. BLANKENSHIP v. Martin D. WAGNER et ux.
• Court: Maryland Court of Appeals

Page 37

261 Md. 37

273 A.2d 412

Ronald K. BLANKENSHIP v. Martin D. WAGNER et ux.

No. 281.

Court of Appeals of Maryland.

Feb. 9, 1971.

Thomas F. Santer, Washington, D. C. (Ashcraft & Gerel, Washington, D. C., on the brief), for appellant.

Albert D. Brault, Rockville (Brault, Scott & Brault, Rockville, on the brief), for appellees.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

FINAN, Judge.

'The difficulties arising from the barrel of flour which rolled out of a warehouse window in 1863 and into the lives of tort lawyers,' ¹ compounded by Baron Pollock's casual statement ('res ipsa loquitur') during argument of the case Byrne v. Boadle, 159 Eng.Rep. 299 (1863), are still with us today.

In the case sub judice the plaintiff (appellant) was somewhat intimidated by Judge Sobeloff's comment in Hickory Transfer Co. v. Nezbed, 202 Md. 253, 263, 96 A.2d 241, 245 (1953), that 'Paradoxically, the plaintiffs proved too much and too little.' ² Fearful of proving 'too much' he called only the defendant property owner (appellee) who owned and controlled the steps in question and the plaintiff, who was injured when his co-worker fell through them. Relying on the doctrine of res ipsa loquitur, appellant rested his case. The lower court, on a timely motion, granted a directed verdict for defendants-appellees. The question before us on this appeal is whether the doctrine is applicable to the case at bar. The pertinent facts are as follows:

The appellant was employed as a delivery man for a company which made deliveries for Montgomery Ward stores. He and his co-worker were delivering a refrigerator-freezer to the appellees' house when the accident in question took place on July 12, 1968. They had placed the appliance on a dolly and were bringing it into the house via the rear steps and a porch which had been built by the husband-appellee in 1966. The appellant was ascending the steps ahead of his co-worker, who was moving the refrigerator and dolly up one step at a time by gripping the strap at the bottom of the dolly and lifting. Appellant was on the porch facing his co-worker below and was holding onto the handles of the dolly. When the co-worker began to lift the dolly up one more step, he went through the second step, on which he was standing, and appellant therefore had to hold the refrigerator from above in order to keep it from falling on his co-worker. In doing so he 'felt something snap in his back' and 'felt pain in his back.' He also noticed that the step on which his co-worker had been standing had broken in the middle. The co-worker is said to be approximately 6 3 tall and to weigh between 230 and 240 pounds. It is not known how much the refrigerator-freezer weighed or how high it was except that it was high enough that the appellant could not see over it when standing. The record supports the fact that the refrigerator was not so heavy as to cause the first step to break when the co-worker, lifting from the bottom, placed his weight on that step. It was not until he reached the second step that he fell through.

Recently Judge Singley speaking for the Court in Stoskin v. Prensky, 256 Md. 707, 712, 262 A.2d 48, 50 (1970), made note of Chief Judge Bond's comments on res ipsa loquitur contained in the dissent in Potomac Edison Co. v. Johnson, 160 Md. 33, 40-41, 152 A. 633 (1930), in which he dismissed it as nothing more than 'a common argumentative expression of ancient Latin brought into the language of the law by men who were accustomed to its use in Latin writings.' ³ Whatever one's view may be on the subject it is as much with us today as when first applied by this Court in Howser v. Cumberland & Pennsylvania Railroad Co., 80 Md. 146, 150-151, 30 A. 906 (1894), and it must be dealt with by both the bench and the bar.

For an understanding of the true nature of the doctrine we find no better expression of it than that set forth in Bohlen v. Glenn L. Martin Co., 193 Md. 454, 461, 67 A.2d 251, 254 (1949), wherein our predecessors said: 'The doctrine res ipsa loquitur is not a rule of pleading. It relates to the burden of proof and sufficiency of evidence.' See also, Presumptions and Burden of Proof in Res Ipsa Loquitur Cases in Maryland, 3 Md.L.Rev. 285, 288 (1939), by Roszel C. Thomsen, later Chief Judge of the U. S. District Court for the District of Maryland.

Judge Delaplaine discussed the characteristics of res ipsa loquitur and the reason for the rule in Potts v. Armour & Co., 183 Md. 483, 487, 39 A.2d 552, 554 (1944), as follows:

'* * * Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict.' ⁴

In further discussing the rule he stated:

'* * * The justice of the rule permitting proof of negligence by circumstantial evidence is found in the circumstance that the principal evidence of the true cause of the accident is accessible to the defendant, but inaccessible to the victim of the accident. The rule is not applied by the courts except where the facts and the demands of justice make its application essential, depending upon the facts and circumstances in each particular case.' (Also quoted by this Court in Coastal Tank Lines v. Carroll, 205 Md. 137, 145, 106 A.2d 98 (1954).) 183 Md. at 488, 39 A.2d at 555.

In order to invoke the doctrine of res ipsa loquitur in Maryland certain circumstances must be shown by the evidence. First, it must appear that the accident was of such a nature that it would not ordinarily occur without the defendant's negligence. Williams v. McCrory Stores Corp., 203 Md. 598, 601, 102 A.2d 253 (1954); Cf. Short v. Wells, 249 Md. 491, 496, 240 A.2d 224 (1968). Second, the plaintiff must demonstrate that the apparatus or instrument which caused the injury was in the defendant's exclusive control. Smith v. Kelly, 246 Md. 640, 644, 229 A.2d 79 (1967). The third element is that it must appear from the evidence that no action on the part of the plaintiff or a third party or other intervening force might just as well have caused the injury. Johnson v. Jackson, 245 Md. 589, 593, 226 A.2d 883 (1967); Joffre v. Canada Dry Ginger Ale, Inc., 222 Md. 1, 9, 158 A.2d 631 (1960); Hickory Transfer Co. v. Nezbed, supra, 202 Md. at 263, 96 A.2d 241. Cf. Restatement (Second) of Torts, § 328D (1965). Our statement of the law is in accord with the prior decisions of this Court, and when applied to the case at bar supports the appellant's contention that the directed verdict should not have been granted. ⁵

The instant case does not fall neatly into the 'classic pattern' of res ipsa cases in which someone is struck by a falling object. See Bernheimer-Leader Stores v. Burlingame, 152 Md. 284, 136 A. 622 (1927) (wherein a pedestrian was struck by a substance falling from a building in course of construction); Munzert v. American Stores Co., 232 Md. 97, 192 A.2d 59 (1963) (injury caused by soft drink cartons falling from handcart); Leidenfrost v. Atlantic Masonry, Inc., 235 Md. 244, 201 A.2d 336 (1964) (wherein slag blocks fell from pile, injuring plaintiff). Nonetheless, it comes within the ambit of the doctrine and similar situations are not unknown to tort law in this country. In the cases of DiMare v. Cresci, 58 Cal.2d 292, 23 Cal.Rptr. 772, 373 P.2d 860 (1962), a woman descending an exterior stairway in her apartment house was injured when one of the steps collapsed and she fell through. The court held that res ipsa loquitur was applicable, stating that steps do not ordinarily collapse unless the person having the duty to maintain and inspect them was negligent. In the earlier case of Katz v. Goldring, 237 App.Div. 824, 260 N.Y.S. 796 (1932), the New York Court held in a per curiam opinion that res ipsa loquitur applied when a plumber's helper who was moving a washtub out of an apartment in the defendant's tenement house was injured as he paused to rest on a landing and it collapsed.

In the present case the plaintiff called the defendant as his witness and elicited the following answers concerning the control of the stairway:

'Q. Are you the owner of the home at which Mr. Blankenship has testified he was injured on July 12, 1968? A. Yes.

'Q. When did you purchase that home? A. 1950. I believe November, 1950.

'Q. Did you purchase it new? Was it a new home when you bought it? A. Yes.

'Q. You still live there today? A. Yes.

'Q. Do you own this house alone or do you and your wife both own it? A. My wife and I.

'Q. Prior to July 12, 1968, did you, in any way, repair or replace the steps in the back of your home? 'A. Yes, In 1966 I replaced the steps and the porch.

'Q. Did you do this yourself? A. Yes.

'Q. With the aid of anyone else? A. Actually, no.

'Q. Since the replacement of those steps in the rear of the house up until July 12, 1968, did anyone repair or alter those steps? A. No.'

Here the plaintiff proved the construction, maintenance and exclusive control of the steps to be within the dominion of the defendant. There is nothing in the evidence which tends to rebut the inference of negligence on the part of the defendant or to introduce a third party or other intervening factors into the case. Of course, on remand the defendant will have an opportunity to balance this inference by introducing evidence tending to show due care on his part or raising the probability that other factors beyond his control caused or contributed to the plaintiff's injury. In that event, and depending on the state of the evidence, a directed verdict may properly be granted, or the case be submitted to the jury for its consideration.

The...