Dover Elevator Co. v. Swann

• Decision Date: 01 September 1993
• Docket Number: No. 58,58
• Citation: 334 Md. 231,638 A.2d 762
• Parties: DOVER ELEVATOR COMPANY v. David SWANN. ,
• Court: Maryland Court of Appeals

Page 231

334 Md. 231

638 A.2d 762

DOVER ELEVATOR COMPANY v. David SWANN.

No. 58, Sept. Term, 1993.

Court of Appeals of Maryland.

March 25, 1994.

John A. Rego (Francis X. Quinn, Anderson & Quinn, on brief), Rockville, for petitioner.

Alan L. Fishbein (Fishbein & Fishbein, P.A., on brief), Ellicott City, for respondent.

Donald C. Allen (Denise Ramsburg Stanley, Allen, Johnson, Alexander & Karp, on brief), Baltimore, amicus curiae for National Elevator Industry, Inc. Gary I. Strausberg (Randal D. Getz, M.D., J.D., Janet & Strausberg, on brief), Baltimore, amicus curiae for the Maryland Trial Lawyers' Ass'n.

Argued before RODOWSKY, McAULIFFE, ^* CHASANOW, KARWACKI, ROBERT M. BELL, MARVIN H. SMITH, and CHARLES E. ORTH, Jr., Judges of the Court of Appeals (Retired and Specially Assigned), JJ.

CHASANOW, Judge.

We are called upon once again to analyze the multifarious doctrine of res ipsa loquitur. As Chief Judge Orth once exclaimed for the Court of Special Appeals, "[e]ver since 1863 when a barrel of flour rolled out of a warehouse window in England and injured a person passing on the public street, the thing has been attempting to speak for itself...." C & P Tel. Co. v. Hicks, 25 Md.App. 503, 509, 337 A.2d 744, 748, cert. denied, 275 Md. 750 (1975). The doctrine of res ipsa loquitur has also been described as " 'a thing of fearful and wonderful complexity and ramifications, and the problems of its application and effect have filled the courts of all our states with a multitude of decisions, baffling and perplexing alike to students, attorneys and judges.' " Meda v. Brown, 318 Md. 418, 422, 569 A.2d 202, 204 (1990) (quoting William L. Prosser, Res Ipsa Loquitur in California, 37 Calif.L.Rev. 183, 183 (1949)).

In the case before us, we shall address the theory of res ipsa loquitur in the context of injuries sustained by the plaintiff, David Swann, as a result of an allegedly misleveled ¹ elevator car. The two issues presented by the defendant-petitioner, Dover Elevator Company, are summarized as follows:

1. May the plaintiff, who has proffered direct evidence of the specific cause of his injuries, also rely on the doctrine of res ipsa loquitur in order to establish the defendant's negligence?

2. If res ipsa loquitur was an appropriate basis for finding the defendant negligent, did the trial judge err in failing to so instruct the jury and, if so, was that error harmless?

For the reasons stated below, we shall reverse the decision of the Court of Special Appeals. See Swann v. Prudential Ins., 95 Md.App. 365, 620 A.2d 989 (1993).

I. Facts

The plaintiff, David Swann, was injured on February 2, 1987, while attempting to board an elevator that allegedly failed to level properly with the floor. The elevator (designated "elevator number two") is in an office building located at 2277 Research Boulevard in Rockville, Maryland. The building is owned by Prudential Insurance Company of America, managed by Carey Winston Company and leased by IBM, Swann's employer and the building's sole tenant. Elevator number two was manufactured, installed and exclusively maintained by the petitioner, Dover Elevator Company. With the exception of IBM, all of the above-listed organizations were named as defendants in this action.

Upon entering elevator number two, Swann stumbled (but did not fall) and struck his back on the rear wall of the elevator car. The elevator was allegedly "[s]omewhere around a foot" or "[s]omewhat greater than about a foot" lower than the level of the floor from which Swann entered the elevator. At the time Swann entered the elevator car, he was conversing with a coworker, Murtha Donovan, Jr. According to Donovan, Swann did not see the level of the elevator car as he entered it because the two coworkers were looking at each other as they conversed. Donovan entered the elevator car immediately after Swann without incident.

On November 21, 1988, Swann filed a complaint against Prudential Insurance Company of America and Dover Elevator Company in the Circuit Court for Montgomery County, Maryland. The complaint alleged that Swann suffered $3,000,000.00 in damages as a result of the defendants' negligence and defects in the design, manufacture, installation and maintenance of elevator number two. By an amended complaint, Swann included Carey Winston Company as a defendant in the action. The product liability claim was later dismissed as to all the defendants and a two-week jury trial on the negligence claims was held in January, 1992.

At trial, Swann offered the expert testimony of Donald Moynihan, an elevator consultant and engineer. Mr. Moynihan testified that he conducted an inspection of elevator number two and the machine room in December, 1990. He also testified that he reviewed all of Dover's available maintenance records. These records indicated service calls to correct misleveling problems with elevator number two on various dates from December, 1986 to February, 1987. Ronald Bothell was the mechanic who maintained and serviced elevator number two for Dover.

The specific negligence alleged by Moynihan's testimony was as follows: 1) Dover was negligent in filing and cleaning, as opposed to replacing, contacts 14 and 15 on elevator number two, resulting in a faulty current and the misleveling; 2) Dover was negligent by failing to spend adequate time servicing the elevator; 3) Dover's maintenance records were deficient; and 4) Dover failed to properly stock replacement parts in the elevator's machine room. Swann contends the elevator's misleveling was probably caused by an irregular current running between the number 14 and 15 contacts. The importance of this contention was explained by the Court of Special Appeals: "Although [Dover's Maintenance] Agreement specifically excludes several elevator components and associated systems, the component that Swann contends caused the misleveling, the '14 and 15 contacts', was not excluded." Swann, 95 Md.App. at 373, 620 A.2d at 993.

Following a trial on the merits, the jury returned a verdict in favor of all the defendants. Swann appealed to the Court of Special Appeals, which affirmed the verdict as to Prudential and Carey Winston, but reversed the verdict as to Dover. Swann, 95 Md.App. at 418, 620 A.2d at 1015. Dover petitioned this Court for a writ of certiorari, which was granted on July 22, 1993 in order to address the aforementioned issues.

II. Analysis of the Res Ipsa Loquitur Doctrine

Res ipsa loquitur is applied in negligence actions as a permissible inference that literally means "the thing speaks for itself." Benedick v. Potts, 88 Md. 52, 55, 40 A. 1067, 1068 (1898). Res ipsa loquitur is "merely a short way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify a [court or] jury in inferring negligence as the cause of that accident." Id. The doctrine allows a plaintiff the opportunity to establish a prima facie case "when he could not otherwise satisfy the traditional requirements for proof of negligence." Pahanish v. Western Trails, Inc., 69 Md.App. 342, 359, 517 A.2d 1122, 1130-31 (1986). The jury is thereby permitted, but not compelled, to infer a defendant's negligence without the aid of any direct evidence. Even when the doctrine applies, however, the burden of proving the defendant's negligence remains upon the plaintiff. Munzert v. American Stores, 232 Md. 97, 103, 192 A.2d 59, 62 (1963) (noting that a permissible inference of negligence does not shift the burden of proof to a defendant but only presents a question of fact to the jury). See also Shirks Motor Express v. Oxenham, 204 Md. 626, 635, 106 A.2d 46, 49 (1954) (stating that, if the trial court finds conflicting permissible inferences, the choice between them is made by the jury); Harris v. Otis Elevator, 92 Md.App. 49, 51-52, 606 A.2d 305, 307 (1992) (inference of negligence may arise from circumstances of the case without shifting burden of proof to defendant). Under Maryland's tort law, successful reliance on res ipsa loquitur requires proof of the following three components:

" ' "1. A casualty of a sort which usually does not occur in the absence of negligence.

2. Caused by an instrumentality within the defendant's exclusive control.

3. Under circumstances indicating that the casualty did not result from the act or omission of the plaintiff." ' "

Meda, 318 Md. at 423, 569 A.2d at 204 (quoting Hicks, 25 Md.App. at 516, 337 A.2d at 752, in turn quoting Leikach v. Royal Crown, 261 Md. 541, 547-48, 276 A.2d 81, 84 (1971)).

A plaintiff's reliance on res ipsa loquitur is generally necessitated, therefore, by the fact that direct evidence of negligence is either lacking or solely in the hands of the defendant. As stated by this Court in Peterson v. Underwood, 258 Md. 9, 19, 264 A.2d 851, 856 (1970), "relaxation of the normal rules of proof is thought to be justified because the instrumentality causing injury is in the exclusive control of the defendant, and it is assumed he is in the best position to explain how the accident happened. " (Emphasis added). Antithetically, numerous Maryland cases have explained that a plaintiff's "attempt to establish specific grounds of alleged negligence precludes recourse to the doctrine of res ipsa loquitur. " Smith v. Bernfeld, 226 Md. 400, 409, 174 A.2d 53, 57 (1961). See also Peterson, 258 Md. at 20, 264 A.2d at 857 (holding that res ipsa loquitur was unavailable because "plaintiff attempted to establish specific grounds of negligence"); Smith v. Baltimore Transit Co., 214 Md. 560, 566, 136 A.2d 386, 389 (1957) (stating that, "where the plaintiff himself proves the details of the happening and, having undertaken to prove the details, he has foregone reliance on res ipsa loquitur ").

The dilemma between the doctrine of res ipsa loquitur and offering direct evidence of negligence is best summarized by the oft-quoted discussion in Hickory Transfer Co. v. Nezbed, 202 Md. 253, 96 A.2d 241...