Gilbert v. Korvette, Inc.

Decision Date16 October 1974
Citation327 A.2d 94,457 Pa. 602
PartiesCreston GILBERT, a minor, by his parent and guardian, James Gilbert v. KORVETTE, INC., Appellant, and Otis Elevator Co. [*]
CourtPennsylvania Supreme Court

William G. Klenk, II, Sidkoff, Pincus, Greenberg Wapner & Golden, Philadelphia, for appellant.

William L. Meritz, Philadelphia, for appellee, Creston Gilbert Etc.

Peter P. Liebert, 3rd, Harry A. Short, Jr., Thomas J. Finarelli Liebert, Short, Fitzpatrick & Lavin, Philadelphia, for appellee, Otis Elevator Co.



ROBERTS Justice.

Three-year-old Creston Gilbert, in the company of his grandfather and sister, was riding an Otis escalator in a Korvette's department store. At the bottom of the escalator, Creston attempted to alight, but his foot became caught in the step and was pulled into the comb plate. As a consequence, young Creston lost part of his left great toe and suffered general disfiguration and deformity of the foot.

Subsequently, an action for negligence was brought against Korvette's, Inc., which owned and operated the escalator, and Otis Elevator Co., which manufactured, installed, and by contract undertook, in its judgment, to regularly and systematically examine, adjust, repair, replace, and otherwise service and maintain the escalator. [1] The case was submitted to the jury with an instruction on res ipsa loquitur, and verdicts against both defendants were returned. Each defendant appealed to the Superior Court. That court affirmed as to Korvette's but, believing the doctrine of res ipsa loquitur was erroneously applied against Otis, ordered a new trial for that defendant. [2] This Court granted Korvette's petition for allowance of appeal [3] limited, however, to a determination whether the case against Otis was properly submitted to the jury on res ipsa loqitur. [4] For reasons different than those advanced by the Superior Court, we affirm the award of a new trial to defendant Otis. [5]


The Latin expression 'res ipsa loquitur' originated as a casual utterance during argument by Chief Baron Pollock in Byrne v. Boadle, 2 H. & C. 722, 159 Eng.Rep. 299 (Ex.1863). There, a barrel of flour fell from a window of defendant's warehouse, striking a passing pedestrian. Despite his inability to show how or why the barrel rolled out the window, the pedestrian-plaintiff was permitted to recover upon a showing that the defendant was in possession of the warehouse. In effect, the case held merely that both negligence and causation may be established by circumstantial evidence. If the defendant owed the plaintiff a duty of care, and if the circumstances indicated that the defendant breached that duty causing injuries, the plaintiff, according to Chief Baron Pollock, could recover. Res ipsa loquitur, therefore, in its origin involved nothing more than a commonsense appraisal of the probative force of circumstantial evidence.

Although res ipsa loquitur was conceived as a shorthand statement of the evidentiary rule allowing negligence to be established by circumstantial proof, confusion developed in this Commonwealth and elsewhere [6] concerning the availability and effect of this 'doctrine.' [7] As Dean Prosser observed, res ipsa loquitur early

'became involved . . . in cases of injuries to passengers at the hands of carriers, with the aftermath of an older decision (Christie v. Griggs, 2 Camp. 79, 170 Eng.Rep. 1088 (N.P.1809)) which had held that the carrier had the burden of proving that it had not been negligent. The two principles, one concerned with the sufficiency of circumstantial evidence, the other of the burden of proof, gradually became confused and intermingled; and from this fusion there developed an uncertain 'doctrine' of res ipsa loquitur, which has been the source of so much trouble to the courts that the use of the phrase itself has become a definite obstacle to any clear thought, and it might better be discarded entirely.'

W. Prosser, Handbook of the Law of Torts § 39, at 213 (4th ed. 1971) (footnotes omitted); see Restatement (Second) of Torts § 328D, comments a, b (1965); 9 J. Wigmore, Evidence § 2509, at 378 (3d ed. 1940).

Similarly, the Evidentiary use of res ipsa loquitur became associated with a related but separate problem--the nature and extent of the Substantive duty owed by the defendant to the plaintiff. The scope of a defendant's control of an activity or instrumentality is a factor which may relate both to the question of his duty and to the propriety of inferring negligence from particular circumstances. However, the dual importance of control in tort law confounded the evidentiary principle of res ipsa loquitur with the question of substantive duty. Further uncertainty was thereby created.

In Pennsylvania, this confusion among evidentiary, substantive, and procedural questions obscured the meaning of res ipsa loquitur. This confusion led our courts at an earlier stage of jurisprudential development to restrict the use of the Latin phrase 'res ipsa loquitur' to those cases in which the defendant owed the plaintiff the 'highest degree of care.' [8] Included in this class of defendants were owners and operators of common carriers, [9] elevators, [10] and escalators, [11] as well as suppliers of electrical power. [12]

However, the considerations in determining the nature and extent of substantive tort duty are not necessarily the same as those underlying the evidentiary use of res ipsa loquitur. Thus, the degree of danger threatened by a particular activity may, for example, be an important reason for subjecting electric companies to the highest degree of care, but it may have relatively slight bearing on whether negligence or causation may be inferred from the circumstances of a particular electrical accident.

Our cases, therefore, have tended to constrict the types of cases in which circumstantial evidence can be used to establish either negligence or causation. For example, if a barrel fell on a pedestrian passing the defendant's warehouse, res ipsa loquitur as previously formulated in Pennsylvania would be inapplicable because the defendant owes only an 'ordinary' duty of care. Cf. Rucinski v. Cohn, 297 Pa. 105, 146 A. 445 (1929). [13]

Having limited the use of the Latinism 'res ipsa loquitur' to a small class of cases, earlier Pennsylvania tribunals--often stating that res ipsa loquitur does not apply--have achieved the same result as did Chief Baron Pollock by simply stating that juries may infer negligence when the evidence is circumstantial. [14] To the same end, [15] other Pennsylvania courts have utilized a unique sibling doctrine of res ipsa loquitur, 'exclusive control.' [16]

Unfortunately, even the cases using the formula of exclusive control have failed fully to follow Chief Baron Pollock's precepts. They have lost sight of the fact that exclusive control, like the original statement 'res ipsa loquitur,' is merely a recognition that circumstantial evidence may be appropriate and adequate proof in a negligence action. A number of arbitrary requirements [17] have been imposed by earlier cases, confining exclusive control narrowly [18] rather than recognizing it as a principle generally permitting a reasonable inference of fault to arise from the circumstances.

In Pennsylvania at least three separate companion 'doctrines' of circumstantial proof have judicially evolved--res ipsa loquitur, exclusive control, and an untitled evidentiary rule of simple circumstantial evidence. The coexistence of these three means of circumstantially proving negligence and causation obscured 'a simple matter of circumstantial evidence' [19] commonly known elsewhere as res ipsa loquitur. In its place highly formalistic distinctons unrelated to the functional question of the probative value of circumstantial proof were substituted.


The instant case is a clear example of the difficulty of applying this labyrinth of formal distinctions. Realistically, would a charge elaborating finely-spun distinctions--highest degree of care, ordinary care, res ipsa loquitur, exclusive control, presumption, inference--give a jury the necessary 'guide and compass' with which to judge the acts of the defendants? And would not a charge reflecting such distinctions be of less than helpful guidance, particularly where the probative force of the circumstantial proof was, in the trial court's judgment, at least as strong against one defendant as against the other? Faced with a single accident attributable to the negligence of either Korvette's, Otis, or both, the trial court was unable to perceive any logical reason to treat the two defendants differently. [20]

The Superior Court, however, by focusing on a formalistic distinction based on earlier confusion between substantive duty and the evidentiary worth of offered proof, held that different evidentiary rules applied to each defendant because it found substantive differences in the respective duties owed. According to that court, Korvette's negligence was provable by res ipsa loquitur because Korvette's was the owner of a common carrier and therefore owed the 'highest degree of care.' Finding no precedent holding one who services and maintains an escalator (duties Otis assumed by contract [21] ) to owe the same highest degree of care, the Superior Court held that res ipsa loquitur was inapplicable in the case against Otis. Exclusive control was held to be the appropriate rule. [22] Therefore, in its judgment, the trial court committed reversible error by charging the jury that a presumption of negligence could be drawn. [23]

As we have stated, historic association of questions of substantive duty with the use of circumstantial proof has...

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  • Gilbert v. Korvette, Inc.
    • United States
    • Pennsylvania Supreme Court
    • October 16, 1974
    ...327 A.2d 94 457 Pa. 602 Creston GILBERT, a minor, by his parent and guardian, James Gilbert v. KORVETTE, INC., Appellant, and Otis Elevator Co. * Supreme Court of Pennsylvania. Oct. 16, 1974. Page 95 [457 Pa. 603] William G. Klenk, II, Sidkoff, Pincus, Greenberg, Wapner & Golden, Philadelph......

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