Cox v. May Dept. Store Co.
| Decision Date | 03 October 1995 |
| Docket Number | CA-CV,No. 1,1 |
| Citation | 903 P.2d 1119,183 Ariz. 361 |
| Parties | David Preston COX and Janelle Cox, husband and wife, Plaintiffs-Appellants, v. The MAY DEPARTMENT STORE COMPANY, a corporation dba Robinson's; Montgomery Elevator Company, a corporation, Defendants-Appellees. 94-0282. |
| Court | Arizona Court of Appeals |
Janelle and David Preston Cox appeal the summary judgment entered in favor of May Department Store Company ("May") and Montgomery Elevator Company ("Montgomery"). For the following reasons, we reverse and remand.
On December 29, 1990, Janelle Cox ("Cox") was ascending the escalator at Robinson's Department Store ("Robinson's"), owned by May, when the jacket she was wearing became lodged between the escalator's moving handrail and stationary guide. This caused her to be thrown down and dragged to the top of the escalator, resulting in physical injury. Prior to the accident, Cox had noticed nothing unusual about the escalator's operation. Her jacket was not unusual and she was riding the escalator in a normal manner. Cox did not see how her jacket became caught under the handrail.
Robinson's had contracted with Montgomery to maintain the escalator. Eleven days prior to the accident, Montgomery inspected the escalator and found that no maintenance was required. Montgomery also inspected the escalator approximately two weeks after the accident and again found no need for maintenance. Also, the City of Phoenix had inspected the escalator four months before the accident, and again two months after it, and found no problems or defects on either occasion.
Cox and her husband (collectively "plaintiffs") filed a timely complaint against May and Montgomery (collectively "defendants"). Plaintiffs' first cause of action alleged that May was negligent in 1) failing to provide and maintain their premises in a reasonably safe condition; 2) providing and maintaining a hazardous condition on their premises; and 3) failing to warn of the hazardous condition. Their second cause of action alleged that Montgomery was negligent in 1) the design, manufacture, installation, maintenance, repair and service of the escalator; and 2) the failure to warn of the hazardous condition. Plaintiffs also stated a third cause of action against defendants which merely invoked the doctrine of res ipsa loquitur.
Defendants moved for summary judgment, arguing that plaintiffs had neither evidence of a defect in the escalator, nor of negligence on the part of defendants, and that res ipsa loquitur was not applicable to this case. With their response, plaintiffs submitted the affidavit of Dean Jacobsen ("Jacobsen"), which averred that 1) he was a mechanical engineer qualified to offer expert testimony regarding escalators; 2) he had examined the escalator and Cox's jacket; 3) the accident would not have occurred had the escalator been properly maintained and designed; and 4) the escalator was either dangerously designed or improperly maintained. Defendants then filed a motion to strike Jacobsen's affidavit, arguing that it was untimely and contained conclusory opinions not supported by a factual basis.
Following oral argument, the trial court found that plaintiffs had presented no evidence of either a specific defect in the escalator or an act of negligence on the part of defendants. The court further concluded that res ipsa loquitur did not apply in this case. It therefore granted summary judgment in favor of defendants. Because of the summary judgment, the court found that defendants' motion to strike Jacobsen's affidavit was moot, and therefore denied the motion without prejudice.
Plaintiffs timely appealed the summary judgment. We have jurisdiction pursuant to Ariz.Rev.Stat.Ann. ("A.R.S.") section 12-2101(B).
On an appeal from summary judgment, this court reviews the record de novo and applies the same standard as the trial court. United Bank v. Allyn, 167 Ariz 191, 195, 805 P.2d 1012, 1016 (App.1990). Summary judgment is appropriate only where there exists no genuine issue of disputed material fact. In re Estate of Johnson, 168 Ariz 108, 109, 811 P.2d 360, 361 (App.1991). If the facts are undisputed, we must determine if the trial court correctly applied the law to the facts. 7200 Scottsdale Rd. Gen. Partners v. Kuhn Farm Mach., Inc., --- Ariz. ----, ----, 909 P.2d 408, 413 (App. 1995).
"Res ipsa loquitur is 'a theory of circumstantial evidence under which the jury may reasonably find negligence and causation from the fact of the accident and the defendant's relation to the accident.' " Ward v. Mount Calvary Lutheran Church, 178 Ariz. 350, 354, 873 P.2d 688, 692 (App.1994) (quoting Jackson v. H.H. Robertson Co., 118 Ariz. 29, 31, 574 P.2d 822, 824 (1978)). A plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence. Id.; McDonald v. Smitty's Super Valu, Inc., 157 Ariz. 316, 318, 757 P.2d 120, 122 (App.1988).
The necessary elements of res ipsa loquitur in Arizona have been:
1. The accident must be of a kind which ordinarily does not occur in the absence of negligence; 2
2. The accident must be caused by an agency or instrumentality within the exclusive control of the defendant;
3. The accident must not have been due to any voluntary action on the part of the plaintiff; and
4. The plaintiff must not be in a position to show the particular circumstances which caused the offending agency or instrumentality to operate to her injury.
Ward, 178 Ariz. at 355, 873 P.2d at 693; McDonald, 157 Ariz. at 319, 757 P.2d at 123. In the instant case, the trial court concluded that plaintiffs had sufficiently established elements one, three, and four, but that they had not established the second element. We analyze each element in turn.
The trial court concluded, and we agree, that this type of accident would not likely have occurred without negligence on someone's part. This first element merely requires a weighing of the probabilities of the cause of the accident. Tucson Gas & Elec. Co. v. Larsen, 19 Ariz.App. 266, 267, 506 P.2d 657, 658 (1973). To survive summary judgment on this element, the evidence presented must be sufficient to allow the jury to infer that negligence was more likely than not the cause of the accident: "The facts must justify the conclusion that negligence is the most likely explanation for the occurrence." Id. This issue, "in borderline cases, is properly left to the jury." Ruiz v. Otis Elevator, 146 Ariz. 98, 101, 703 P.2d 1247, 1250 (App.1985).
The jury, in turn, may find negligence based upon either its common knowledge, which generally is "past experience that is common to the community," or, where such common knowledge is lacking, through expert testimony that such an accident does not usually occur absent negligence. Ward, 178 Ariz. at 355, 873 P.2d at 693.
We conclude that it is permissible for a trier of fact to find that the accident in the instant case would not likely have occurred without negligence. Cox was ascending the escalator in a normal fashion and wearing a normal jacket when her jacket became caught under the handrail. Its common experience with escalators would allow the jury to infer that such an accident would not occur absent the negligent design, construction, maintenance, inspection, or repair of the escalator. See McDonald, 157 Ariz. at 319, 757 P.2d at 123; cf. Manzi v. Montgomery Elevator Co., 865 P.2d 902, 904 (Colo.Ct.App.1993) (); Ott v. J.C. Penney Co., 360 So.2d 524, 527 (La.Ct.App.1978) (); Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94, 102 (1974) ().
Furthermore, even if such common knowledge were lacking, plaintiffs presented expert evidence in the form of an affidavit from a mechanical engineer who had inspected the escalator and opined that Cox's accident could only have occurred if the escalator had been improperly designed or maintained. We therefore conclude that plaintiffs have established the first element of res ipsa loquitur.
The second element requires that the instrumentality causing the accident be within the exclusive control of defendants. The trial court concluded that this element was not satisfied:
The Plaintiff argues that the accident was caused by the escalator. With this the Court disagrees. The accident was caused by the Plaintiff's jacket getting caught in the handrail of the escalator. This circumstance is as much within the control of the Plaintiff as it is the Defendants.
We disagree, however, with the trial court's analysis. This element of res ipsa loquitur involves the control over the instrumentality that caused the accident, not the control over the other steps leading up to the accident.
An analysis akin to the trial court's was rejected in Larsen, where plaintiff's automobile struck a guy wire that had dropped across the road as a result of a...
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