Gilbert v. Korvette's Inc.

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBefore JONES, C.J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Citation827 A.2d 94,457 Pa. 602
Decision Date27 November 1973
PartiesGilbert v. Korvette's Inc., Appellant.

457 Pa. 602
827 A.2d 94

Gilbert
v.
Korvette's Inc., Appellant

Supreme Court of Pennsylvania.

Argued November 27, 1973.

October 16, 1974.


Before JONES, C.J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

457 Pa. 603
William G. Klenk, II, with him Sidkoff, Pincus, Greenberg, Wapner & Golden, for appellant

William L. Meritz, for Creston Gilbert, appellee.

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

OPINION BY MR. JUSTICE ROBERTS, October 16, 1974:

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,

457 Pa. 604
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 appeal3 limited, however, to a determination whether the case against Otis was properly submitted to the jury on res ipsa loquitur.4 For reasons different than those advanced by the Superior Court, we affirm the award of a new trial to defendant Otis.5

I.

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.

457 Pa. 605
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 elsewhere6 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

457 Pa. 606
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

457 Pa. 607
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

457 Pa. 608
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 requirements17 have been imposed by earlier cases, confining

457 Pa. 609
exclusive control narrowly18 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 distinctions unrelated to the functional question of the probative value of circumstantial proof were substituted.

II.

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

457 Pa. 610
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 contract21) 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,

457 Pa. 611
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 previously resulted in unnecessary befuddlement of a simple legal proposition. Further endeavoring to define the contorted relationship between duty and proof of negligence can only add to existing confusion. This we will not do....

To continue reading

Request your trial
10 practice notes
  • Bianco v. Concepts 100, Inc.
    • United States
    • Superior Court of Pennsylvania
    • October 9, 1981
    ...--- Pa.Super. ---, 426 A.2d 635 (1980); Proctor & Schwartz, Inc. v. Cleveland Lumber Co., supra. 6 See Gilbert v. Korvette's, Inc., 457 Pa. 602, 604 & n.4, 327 A.2d 94, 96 & n.4 (1974) (an appellate court "may ... affirm if any ground for affirmance exists"); Kelmo Enterprises, Inc. v. Comm......
  • MedStar v. Health Care Commission, No. 47
    • United States
    • Court of Appeals of Maryland
    • June 18, 2003
    ...it to identify unmet health care needs and to set forth the methodologies for certificate of need review.11 Citing to the objection of the 827 A.2d 94 members of the AELR Committee, the appellant further noted that the regulation had been adopted without the approval of the Governor in viol......
  • Lemon v. COM., DEPT. OF TRANSP.
    • United States
    • Commonwealth Court of Pennsylvania
    • December 4, 2000
    ...e.g., Otte v. Covington Township Road Supervisors, 539 Pa. 44, 49, 650 A.2d 412, 414 (1994); 763 A.2d 538 Gilbert v.. Korvette's, Inc., 457 Pa. 602, 604 n. 5, 327 A.2d 94, 96 n. 5 (1974); DeVeaux v. Palmer, 125 Pa.Cmwlth. 631, 558 A.2d 166 It is well settled that to sustain a license suspen......
  • Taub v. Merriam
    • United States
    • Superior Court of Pennsylvania
    • December 2, 1977
    ...bar equitable relief. Accordingly, since we may affirm an order of the lower court on any sufficient basis, Gilbert v. Korvette's, Inc., 457 Pa. 602, 327 A.2d 94 (1974), and because appellant will now have a hearing on the merits of its petition for a stay of execution, we affirm the order ......
  • Request a trial to view additional results
10 cases
  • Bianco v. Concepts 100, Inc.
    • United States
    • Superior Court of Pennsylvania
    • October 9, 1981
    ...--- Pa.Super. ---, 426 A.2d 635 (1980); Proctor & Schwartz, Inc. v. Cleveland Lumber Co., supra. 6 See Gilbert v. Korvette's, Inc., 457 Pa. 602, 604 & n.4, 327 A.2d 94, 96 & n.4 (1974) (an appellate court "may ... affirm if any ground for affirmance exists"); Kelmo Enterprises, Inc. v. Comm......
  • MedStar v. Health Care Commission, No. 47
    • United States
    • Court of Appeals of Maryland
    • June 18, 2003
    ...it to identify unmet health care needs and to set forth the methodologies for certificate of need review.11 Citing to the objection of the 827 A.2d 94 members of the AELR Committee, the appellant further noted that the regulation had been adopted without the approval of the Governor in viol......
  • Lemon v. COM., DEPT. OF TRANSP.
    • United States
    • Commonwealth Court of Pennsylvania
    • December 4, 2000
    ...e.g., Otte v. Covington Township Road Supervisors, 539 Pa. 44, 49, 650 A.2d 412, 414 (1994); 763 A.2d 538 Gilbert v.. Korvette's, Inc., 457 Pa. 602, 604 n. 5, 327 A.2d 94, 96 n. 5 (1974); DeVeaux v. Palmer, 125 Pa.Cmwlth. 631, 558 A.2d 166 It is well settled that to sustain a license suspen......
  • Taub v. Merriam
    • United States
    • Superior Court of Pennsylvania
    • December 2, 1977
    ...bar equitable relief. Accordingly, since we may affirm an order of the lower court on any sufficient basis, Gilbert v. Korvette's, Inc., 457 Pa. 602, 327 A.2d 94 (1974), and because appellant will now have a hearing on the merits of its petition for a stay of execution, we affirm the order ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT