Colmenares Vivas v. Sun Alliance Ins. Co.

• Decision Date: 29 December 1986
• Docket Number: No. 86-1204,86-1204
• Citation: 807 F.2d 1102
• Parties: Jose Domingo COLMENARES VIVAS, et al., Plaintiffs, Appellants, v. SUN ALLIANCE INSURANCE COMPANY, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1102

807 F.2d 1102

6 Fed.R.Serv.3d 815

Jose Domingo COLMENARES VIVAS, et al., Plaintiffs, Appellants, v. SUN ALLIANCE INSURANCE COMPANY, et al., Defendants, Appellees.

No. 86-1204.

United States Court of Appeals First Circuit.

Argued Oct. 9, 1986.

Decided Dec. 29, 1986.

Harold D. Vicente, Santurce, P.R., with whom Hector Cuebas Tanon, San Juan, P.R., and Harold D. Vicente Law Offices, Santurce, P.R., were on brief, for plaintiffs, appellants.

Francisco Agrait-Oliveras, Hato Rey, P.R., for defendant, appellee Sun Alliance Ins. Co.

Francisco J. Colon Pagan with whom Cordero, Colon & Miranda, Old San Juan, P.R., was on brief, for defendant, appellee Westinghouse Elec. Corp.

Before BOWNES, Circuit Judge, BROWN, ^* Senior Circuit Judge, and TORRUELLA, Circuit Judge.

BOWNES, Circuit Judge.

Appellants are plaintiffs in a diversity action to recover damages for injuries they suffered in an accident while riding an escalator. After the parties had presented their evidence, the defendants moved for and were granted a directed verdict. The court held that there was no evidence of negligence and that the doctrine of res ipsa loquitur, which would raise a presumption of negligence, did not apply. We reverse the directed verdict and remand the case to the district court because we hold that res ipsa loquitur does apply.

I. BACKGROUND

The relevant facts are not in dispute. On February 12, 1984, Jose Domingo Colmenares Vivas and his wife, Dilia Arreaza de Colmenares, arrived at the Luis Munoz Marin International Airport in Puerto Rico. They took an escalator on their way to the Immigration and Customs checkpoint on the second level. Mrs. Colmenares was riding the escalator on the right-hand side, holding the moving handrail, one step ahead of her husband. When the couple was about halfway up the escalator, the handrail stopped moving, but the steps continued the ascent, causing Mrs. Colmenares to lose her balance. Her husband grabbed her from behind with both hands and prevented her from falling, but in doing so, he lost his balance and tumbled down the stairs. Mr. and Mrs. Colmenares filed a direct action against the Sun Alliance Insurance Company (Sun Alliance), who is the liability insurance carrier for the airport's owner and operator, the Puerto Rico Ports Authority (Ports Authority). Sun Alliance brought a third-party contractual action against Westinghouse Electric Corporation (Westinghouse) based on a maintenance contract that required Westinghouse to inspect, maintain, adjust, repair, and replace parts as needed for the escalator and handrails, and to keep the escalator in a safe operating condition.

Six days before the trial was scheduled to begin, appellants filed a motion to amend their complaint to allege that Westinghouse was directly liable for their injuries. Westinghouse opposed the motion and asked that it be allowed time to conduct discovery before the trial if the motion were granted. The court denied appellants' motion.

The trial was conducted on January 30 and 31, 1986. Appellants called four witnesses. The Ports Authority's contract and maintenance supervisor testified about his daily weekday inspections of the escalator, about the maintenance contract with Westinghouse, about inspection and maintenance procedures, and about the accident report and subsequent repair and maintenance of the escalator. ¹ The Ports Authority's assistant chief of operations testified about the accident report. Appellants' testimony concerned the accident and their injuries.

Sun Alliance moved for a directed verdict. Appellants argued in opposition that the evidence presented was sufficient to show negligence and, in the alternative, that res ipsa loquitur should be applied to raise an inference that the Ports Authority had been negligent. At this point the court decided to allow the trial to continue. Sun Alliance and Westinghouse submitted their case on the basis of the testimony already presented and Sun Alliance renewed its motion for a directed verdict. After hearing the parties' arguments, the court ruled that there was no evidence that the Ports Authority had been negligent, and that the case could not go to the jury based on res ipsa loquitur because at least one of the requirements for its application--that the injury-causing instrumentality was within the exclusive control of the defendant--was not met.

Appellants argue that the district court erred in three ways: (1) by not applying res ipsa loquitur; (2) by granting Sun Alliance's second motion for a directed verdict after it already had denied such a motion on the same evidence; and (3) by not allowing the appellants to amend their complaint to allege that Westinghouse was directly liable for their injuries.

II. RES IPSA LOQUITUR

Under Puerto Rico law, three requirements must be met for res ipsa loquitur ("the thing speaks for itself") to apply: "(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of defendant; [and] (3) it must not be due to any voluntary action on the part of plaintiff." Community Partnership v. Presbyterian Hosp., 88 P.R.R. 379, 386 (1963). If all three requirements are met, the jury may infer that the defendant was negligent even though there is no direct evidence to that effect. Id. at 398.

A. The First Requirement: Inference of Negligence

The first requirement that must be met for res ipsa loquitur to apply is that "the accident must be such that in the light of ordinary experience it gives rise to an inference that someone has been negligent." Community Partnership v. Presbyterian Hosp., 88 P.R.R. at 388-89. It is not clear to us whether the district court decided that this requirement was met, although the court did suggest that it was giving the benefit of the doubt on this question to the appellants. We hold that this requirement was met because an escalator handrail probably would not stop suddenly while the escalator continues moving unless someone had been negligent. ²

This requirement would not be met if appellants had shown nothing more than that they had been injured on the escalator, because based on this fact alone it would not be likely that someone other than the appellants had been negligent. See Conway v. Boston Elevated Ry. Co., 255 Mass. 571, 574, 152 N.E. 94, 94-95 (1926) (negligence element not satisfied when all that had been shown was that a child's hand had been caught beneath the escalator handrail belt); Fuller v. Wurzburg Dry Goods Co., 192 Mich. 447, 448-49, 158 N.W. 1026, 1026 (1916) (negligence may not be inferred from a fall on an escalator because the plaintiff did not show that the escalator was improperly constructed or that it malfunctioned). Here, it was not disputed that the handrail malfunctioned and stopped suddenly, an event that foreseeably could cause riders to lose their balance and get injured. Thus, the evidence gave rise to an inference that someone probably had been negligent in operating or maintaining the escalator, and the first requirement for the application of res ipsa loquitur was met.

B. The Second Requirement: Exclusive Control

The second requirement for res ipsa loquitur to apply is that the injury-causing instrumentality--in this case, the escalator--must have been within the exclusive control of the defendant. The district court found that this requisite was not met, despite the parties' stipulation that "[t]he escalator in question is property of and is under the control of the Puerto Rico Ports Authority." We agree that this stipulation was not by itself enough to satisfy the res ipsa loquitur requirement. It did not exclude the possibility that someone else also had control over the escalator; indeed, the stipulation said that Westinghouse maintained the escalator. We hold, however, that the Ports Authority effectively had exclusive control over the escalator because the authority in control of a public area has a nondelegable duty to maintain its facilities in a safe condition.

Few courts have required that control literally be "exclusive." See F. Harper, F. James & O. Gray, The Law of Torts Sec. 19.7, at 45 (2d ed. 1986). The Supreme Court, reviewing a case in which this court applied the exclusive control requirement literally, said that the question "really is not whether the application of the rule relied on fits squarely into some judicial definition, rigidly construed," because such an approach unduly restricts "the jury's power to draw inferences from facts." Jesionowski v. Boston & Maine R.R., 329 U.S. 452, 457, 67 S.Ct. 401, 91 L.Ed. 416 (1946) (reversing 154 F.2d 703 (1st Cir.)). The exclusive control requirement, then, should not be so narrowly construed as to take from the jury the ability to infer that a defendant was negligent when the defendant was responsible for the injury-causing instrumentality, even if someone else might also have been responsible. The purpose of the requirement is not to restrict the application of the res ipsa loquitur inference to cases in which there is only one actor who dealt with the instrumentality, but rather "to eliminate the possibility that the accident was caused by a third party." Community Partnership v. Presbyterian Hosp., 88 P.R.R. at 390 (emphasis added); see also Giacalone v. Raytheon Mfg. Co., 222 F.2d 249, 252 (1st Cir.1955) ("[I]n the absence of evidence of control no inference of causal negligence on the part of the defendant can be drawn from the improper functioning of the instrumentality, for it would be just as probable that the negligence of someone other than the defendant caused it to function improperly with injurious consequences."). It is not necessary, therefore, for the defendant to have had actual physical control; it is enough that the defendant, and not a third party, was ultimately responsible for the instrumentality. Thus, res ipsa...