Gilbert v. Korvette's, Inc.
| Decision Date | 11 December 1972 |
| Citation | 299 A.2d 356,223 Pa.Super. 359 |
| Parties | Creston GILBERT, a minor by his parent and natural guardian, James Gilbert v. KORVETTE'S, INC. and Otis Elevator Company, Appellants. Appeal of OTIS ELEVATOR CO. |
| Court | Pennsylvania Superior Court |
Liebert, Short, Fitzpatrick & Lavin, Peter P. Liebert, 3rd, William G. Klenk, II, Philadelphia, for appellants.
William L. Meritz, Philadelphia, for appellee.
Before WRIGHT, P.J., and WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE and PACKEL, JJ.
We are presented on appeal with the question of whether either or both a department store-operator of an escalator and the company which manufactures and services said instrumentality may be held liable under the theory of res ipsa loquitur to a plaintiff who is injured while a passenger on the escalator in defendant's store.
This appeal arises from an action for damages for personal injuries sustained by Creston Gilbert, then a minor under the age of four, on August 20, 1960, while in the store of E. J. Korvette, Inc. The minor-plaintiff, who was wearing high sneakers or basketball shoes, was on the escalator with his grandfather, Creston C. Mueller and his sister, Vicky, in Korvette's department store at Welsh Road & Roosevelt Boulevard in Philadelphia. The testimony discloses that all three passengers were standing on one step of the down escalator with the grandfather in the middle, holding the hand of each child. When they reached the bottom of the escalator, Mr. Mueller testified that he raised both his hands to help guide and assist the children off the escalator. While he and Vicky stepped off safely, minor-plaintiff was unable to follow as his foot was caught in the combs of the step. Minor-plaintiff's foot was pulled into the comb plate, and could not be extricated until a crowbar was used, resulting in the destruction of two of the steps. Injuries resulted in a partial amputation of minor's left great toe, and general disfiguration and deformity of the foot.
Plaintiffs sued the store and the company which had manufactured, installed and contracted to service the escalator on a weekly basis. Korvette's employees started and stopped the escalator, checked to see if it was operating properly and cleaned it on a daily basis. Although plaintiffs originally had set forth in the complaint specific acts of negligence on the part of the defendants, the case was submitted on a theory of res ipsa loquitur against both of the defendants. The trial judge charged that if the jury found that both defendants had exercised joint exclusive control of the instrumentality, a verdict could be returned against both defendants under the theory of res ipsa loquitur. 1 The jury then found in favor of the minor child in the sum of $35,000 and in favor of the minor's parents in the sum of $5,000.
In the law of torts, it is a universally established rule that the burden of proving negligence lies upon the one who alleges it. Exception to this general rule has been established by the existence of the doctrine of res ipsa loquitur and the exclusive control doctrine. In those cases, our courts have permitted a finding of negligence from purely circumstantial evidence.
Traditionally, three factors must coexist in order to invoke the doctrine of res ipsa loquitur: (a) the defendant must owe to the plaintiff a duty of the highest degree of care; (b) the instrumentality which caused the accident was in the exclusive control of the defendant; And, (c) that which happened was something that ordinarily would not have occurred if the defendant had exercised the high degree of care which the law imposes upon him. Zahniser v. Pa. Torpedo Co., 190 Pa. 350, 42 A. 707 (1899); Alexander v. Nanticoke Light Co., 209 Pa. 571, 58 A. 1068 (1904).
Where the duty is absolute or there exists an obligation practically amounting to that of an insurer, the courts have applied the doctrine with some degree of uniformity. Because to the attendant imposition of a presumption of negligence, 2 however, such application has been limited to this jurisdiction to a very narrow group of cases, the major portion of which are common carrier cases. 3 It is generally recognized in all jurisdictions that a common carrier must exercise the highest practical degree of care in order to protect and safeguard its passengers. An injury resulting to a passenger through any of the appliances of transportation raises a presumption of negligence which the carrier must rebut. Furby v. Pa. R.R. Co., 286 Pa. 85, 132 A. 796 (1926). Even as to the common carrier cases, however, the doctrine has been limited in application to only those cases where the injury arises out of the transportation function in the relationship of carrier and passenger. Patterson Co. v. Pittsburg Rwys. Co., 37 Pa.Super. 212 (1908); Zercher v. Phila. Rapid Transit Co., 50 Pa.Super. 324 (1911); Nebel v. Burelli et al., 352 Pa. 70, 41 A.2d 873 (1945).
The reluctance of our courts to invoke this doctrine is not surprising, as the attendant consequences can be insurmountable to a defendant unable to find a reason for the happening of a particular accident. 'Being in derogation of the general principal that 'the negligence charged must be established by evidence', the rule (res ipsa loquitur) has been thus narrowly restricted in its application.' Norris v. Philadelphia Electric Co., 334 Pa. 161, 163, 5 A.2d 114 (1939); Sierocinski v. E. I. DuPont de Nemours & Co., supra.
A group of cases to which this doctrine has been applied involves the injury of a passenger on an elevator or escalator. In those cases, the Owner or Operator of such an instrumentality has been held responsible as a common carrier, and therefore when his instrumentality brings about an injury to a passenger he has been held liable under the theory of res ipsa loquitur. Petrie v. Kaufmann & Baer Co., 291 Pa. 211, 139 A. 878 (1927); McKnight v. S. S. Kresge Co., supra. At no time, however, has that doctrine been extended to the service company which installed the device and contracted to maintain and inspect it on a periodic basis.
Appellee relies heavily on Loch v. Confair, 372 Pa. 212, 93 A.2d 451, which held that both the bottling company and the retailer could be liable to the plaintiff on a theory of res ipsa loquitur (and exclusive control doctrine) for injuries sustained from an exploding soda bottle. The Court determined that the only cause of the rupture could have been due to negligence on the part of one or both of the defendants, either in the process of bottling or in the handling of the product; additionally, it was apparent, the Court said, that the circumstances of the case were such that if any explanation of how the accident occurred or what had caused it was forthcoming, it could only be provided by the defendants. As the Court said at p. 217, 93 A.2d at p. 454:
Loch v. Confair, supra, couched in such pervasive language, was a considerable departure from what had been a rarely invoked doctrine. It is significant that our courts did not see fit to extend the doctrine in any case after Loch, and instead reverted to the strict application of res ipsa to situations where the defendant had traditionally owed plaintiff the highest practical degree of care. It would seem that because the subject matter of Loch--the exploded bottle--had been destroyed, and because the circumstances of the case made it impossible for plaintiffs to discover the cause of the accident, the Court strained to reach its result in applying the doctrine to a plaintiff who was unable to produce a scintilla of evidence to indicate negligence. 4
As a vague and potentially prejudicial doctrine, legal precedent and common sense militate against imposition of a presumption of negligence by merely showing that an accident occurred through an instrumentality controlled by one or more defendants.
Concomitant with the doctrine of res ipsa loquitur, Pennsylvania has developed the doctrine of exclusive control. Although the doctrines are somewhat interrelated and often confused, they are distinct. The doctrine of exclusive control has been said to apply only when all of the following elements are found to exist: (a) where the thing which caused the accident is under the exclusive control of or was made or manufactured by the defendant; And (b) the accident or injury would ordinarily not happen if the defendant exercised due care, or made or manufactured the article with due care; And (c) where the evidence of the cause of the injury or accident is not equally available to both parties, but is exclusively accessible to and within the possession of the defendant; And (d) the accident itself is very unusual or exceptional and the likelihood of harm to plaintiff or one of his class could reasonably have been foreseen and prevented by the exercise of due care; And (e) the general principles of negligence have not theretofore been applied to such facts. Izzi v. Philadelphia Transportation Co., 412 Pa. 559, 195 A.2d 784 (1963).
When this doctrine is applied, it is important to note that 'the...
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