First Nat. Bank of Ariz. v. Otis Elevator Co.

Decision Date11 October 1965
Docket NumberNos. 1,CA-CIV,s. 1
PartiesFIRST NATIONAL BANK OF ARIZONA, a corporation, and First Bank Building Corporation, Appellants and Cross-Appellees, v. OTIS ELEVATOR CO., Inc., Cross-Appellant, v. Una MAURER, Appellee. * 29, 1 30.
CourtArizona Court of Appeals

Moore, Romley, Kaplan, Robbins & Green, Phoenix, by Philip A. Robbins, Phoenix, for appellants and cross-appellees First Nat. Bank of Arizona and First Bank Bldg. Corp.

Jennings, Strouss, Salmon & Trask, by Thomas J. Trimble, Phoenix, for appellant Otis Elevator Co., Inc.

Leonard S. Sharman, Phoenix, for appellee Una Maurer.

DONOFRIO, Judge.

This is an appeal of the defendants the First National Bank and First Building Corporation, hereinafter jointly referred to as the Bank, from a judgment for damages for personal injuries awarded against them in favor of Una Maurer, hereinafter called plaintiff. Consolidated with this is the appeal of Otis Elevator Company, hereinafter called Otis, from a judgment rendered against it in favor of the Bank for the amount of plaintiff's judgment against the Bank.

Plaintiff originally brought her action against the Bank and Otis, and the Bank cross-claimed against Otis. After the trial commenced, plaintiff moved to dismiss the action as against Otis, and the Court granted the motion to dismiss with prejudice as to the plaintiff after counsel for the Bank and counsel for Otis stipulated in chambers that this dismissal would have no effect on the cross-claim of the Bank against Otis.

We will first consider the appeal of the Bank from the judgment in favor of the plaintiff, and second consider the appeal of Otis from the judgment for the Bank on its cross-claim.

Plaintiff was a woman 72 years of age on January 7, 1959, the date of the incident from which this cause arose. Plaintiff went to the Bank Building on that date and made an insurance premium payment at an office on one of the upper floors. She transacted her business and rang for an automatic elevator to go downstairs. After a short wait, the elevator stopped, the doors opened, and two men stepped off. Plaintiff alleged that she started to walk into the elevator, and was struck by the door, which knocked her to the floor causing the injuries upon which her cause of action is based. There were no witnesses to the incident.

The first question raised by the Bank is whether the court erred in permitting the case to go to the jury under the doctrine of res ipsa loquitur. The conditions determining the applicability of res ipsa loquitur have been clearly set down in Capps v. American Airlines, Inc., 81 Ariz. 232, 234, 303 P.2d 717, 718 (1956) as follows:

(1) the accident must be of a kind which ordinarily does not occur in the absence of some one's negligence;

(2) it must be caused by an agency or instrumentality within the exclusive control of defendant;

(3) it must not have been due to any voluntary action on the part of the plaintiff;

(4) plaintiff must not be in a position to show the particular circumstances which caused the offending agency or instrumentality to operate to his injury.

We shall apply these four tests as to the applicability of res ipsa loquitur to the facts of this case:

(1) Was the accident of a kind which ordinarily would not have occurred in the absence of someone's negligence?

We have only the testimony of the plaintiff as to how the accident happened. She testified in part as follows as to the circumstances of the accident:

'Q. Well, no, let's go back--my question is this--you don't actually remember the door striking you, do you; isn't that correct?

A. Sure I remember. It hit me on the side and knocked me to the left side. But it was all so quick I couldn't explain just how it was because I had to wait for these men to come off and then I started on.'

After examining the entire record, we hold that there was sufficient evidence for the jury to have found that plaintiff attempted to enter the elevator while the elevator doors were open, that she was struck on the right side by the elevator door with sufficient force to cause pain and soreness in her right limbs, and to cause her to fall to the floor on her left side, sustaining bruises on the left side of her body and a bump on the left side of her head.

The Bank argues that the doctrine of res ipsa loquitur is not applicable in the instant case because it appears from the evidence that the particular accident could have resulted from one of several causes, for one or more of which defendant would not be responsible. With this we cannot agree. We believe that the facts are sufficient from which a jury might well believe plaintiff was hit by the elevator door, and that elevator doors do not hit people in the absence of someone's negligence.

Plaintiff testified that she remembered the door hitting her, and further she had pain and soreness in her right limbs, which fact would be consistent with her being hit by the door and inconsistent with the theory suggested by the Bank that she fell. A fall sufficiently severe to leave pronounced bruises and bumps on the left side would not also produce secondary injuries to the right side.

The Bank argues that even assuming that the elevator door came in contact with the plaintiff, no inference of negligence on the part of the Bank can reasonably be drawn from plaintiff's evidence. The strongest inference that can be drawn in plaintiff's favor they say, is that the elevator did not function with absolute perfection, and the Bank cites Nieman v. Jacobs, 87 Ariz. 44, 347 P.2d 702 (1959) in support of that position. To us the Nieman case is not applicable on its facts. There the plaintiff was injured leaving a stalled elevator after it had stopped. In Rodin v. American Can Co., 133 Cal.App.2d 524, 284 P.2d 530 (1955), the plaintiff was injured in a falling elevator. The court held:

'[That] res ipsa loquitur does apply. * * * The failure of the elevator to stop threw the burden on the respective defendants to explain the failure and to show it was not due to its or their negligence.'

In the case at bar plaintiff was injured when she was struck by the elevator door. From the record on appeal this Court is of the opinion that there were sufficient facts before the jury for the jury to have determined that these particular elevator doors would not have malfunctioned and struck the plaintiff in the absence of negligence. The answer as to whether or not the particular type of accident was of a kind which ordinarily would not have occurred in the absence of someone's negligence, in borderline cases, is properly left to the jury. Judge Magruder in Marshall v. Nugent, 1 Cir., 222 F.2d 604, 611, 58 A.L.R.2d 251, explained the reason why such questions are properly questions for a jury:

'When an issue of proximate cause arises in a borderline case, as not infrequently happens, we leave it to the jury with appropriate instructions. We do this because it is deemed wise to obtain the judgment of the jury, reflecting as it does the earthy viewpoint of the common man--the prevalent sense of the community--as to whether the causal relation between the negligent act and the plaintiff's harm which in fact was a consequence of the tortious act is sufficiently close to make it just and expedient to hold the defendant answerable in damages. That is what the courts have in mind when they say the question of proximate causation is one of fact for the jury. (citing cases) It is similar to the issue of negligence, which is left to the jury as an issue of fact. Even where on the evidence the facts are undisputed, if fairminded men might honestly and reasonably draw contrary inferences as to whether the facts do or do not establish negligence, the court leaves such issue to the determination of the jury, who are required to decide, as a matter of common-sense judgment, whether the defendant's course of conduct subjected others to a reasonable or unreasonable risk, i. e., whether under all the circumstances the defendant ought to be recognized as privileged to do the act in question or to pursue his course of conduct with immunity from liability for harm to others which might result.'

This brings us to the second requirement: (2) Was the accident caused by an agency or instrumentality within the exclusive control of defendants?

The Bank in its answer admitted that it owned and operated the passenger elevators in question and that they were used for the purpose of transporting tenants and members of the public as passengers to and from the different floors of the Bank Building. It introduced evidence that it had entered into contractual agreements with Otis Elevator Company for the construction and maintenance of the elevators, and that the electronic mechanism controlling the operating of the doors was only accessible by key to Otis and its employees. However, 'control', within the rule that res ipsa loquitur applies only where the agency or instrumentality is within the exclusive control of the defendant, refers to authority to authorize the use of the agency or instrumentality. Rodin v. American Can Company, 133 Cal.App.2d 524, 284 P.2d 530 (1955).

Regarding the construction and maintenance contracts with Otis, and the Bank's argument that the elevator was as a result not in the exclusive control of the Bank, California has held as follows, and we agree:

'The law does not prohibit the application of the doctrine against two or more defendants where there is joint control'. Biondini v. Amship Corp., 81 Cal.App.2d 751, 767, 768, 185 P.2d 94, 104 (1947).

There is sufficient evidence for the jury to have determined that the facts met the second requirement for the application of res ipsa loquitur, that the accident was caused by an instrumentality within the exclusive control of the defendant Bank.

The third requirement is: (3) It must not have been due to any voluntary action on the part of the plaintiff.

This test...

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