Majors v. J. C. Penney Co., Inc., 72--031

• Citation: 31 Colo.App. 568,506 P.2d 399
• Decision Date: 27 December 1972
• Docket Number: No. 72--031,72--031
• Parties: Paulette Rose MAJORS by her next friend Robert S. Majors and Robert S. Majors, Individually, Plaintiffs-Appellees, v. J. C. PENNEY COMPANY, INC., a corporation, Defendant-Appellant and Third-Party Plaintiff-Appellant, v. The PEELLE COMPANY, a corporation, and Haughton Elevator Company, a Division of Reliance Electric Company, Third-Party Defendants-Appellees. . I
• Court: Colorado Court of Appeals

Page 399

506 P.2d 399

31 Colo.App. 568

Paulette Rose MAJORS by her next friend Robert S. Majors and Robert S. Majors, Individually, Plaintiffs-Appellees, v. J. C. PENNEY COMPANY, INC., a corporation, Defendant-Appellant and Third-Party Plaintiff-Appellant, v. The PEELLE COMPANY, a corporation, and Haughton Elevator

Company, a Division of Reliance Electric Company,

Third-Party Defendants-Appellees.

No. 72--031.

Colorado Court of Appeals, Div. I.

Dec. 27, 1972.

Rehearing Denied Jan. 16, 1973.

Agee & Fann, Ron E. Ewing, Colorado Springs, for plaintiffs-appellees.

Horn, Anderson & Johnson, R. E. Anderson, Colorado Springs, for defendant-appellant and third party plaintiff-appellant.

Donald E. LaMora, Colorado Springs, for third party defendants-appellees.

COYTE, Judge.

Paulette Rose Majors, a six-year-old child, her mother and a friend were shopping in the J. C. Penney Company, Inc., store in Colorado Springs. They had been on the second floor of the building and then, by use of the escalator, went to the main floor. While Mrs. Majors and her friend were looking at some items of merchandise a few feet from the bottom of the escalator, Paulette suddenly turned and ran a few steps up the escalator which was traveling down, then turned around and fell. Her dress caught in the escalator mechanism. She caught her left hand in the escalator. Her doctor testified that her hand was cut by a sharp object and required between 150 to 200 sutures to close the wound. The sharp object was not further identified by any of the parties.

This action was brought against J. C. Penney Company, Inc., by Paulette, by and through her father. J. C. Penney Company admitted that the minor plaintiff had caught her left hand in the escalator and generally denied negligence. It also filed a third-party complaint against the manufacturer and installer of the escalator, alleging that if it were liable to the plaintiff because of improper construction or maintenance that said third-party defendants would be liable over to defendant.

At the conclusion of the trial the court ruled:

'. . . that the doctrine of Res ipsa loquitur applies under the facts and circumstances of this case and that under said doctrine, the burden of proof shifts to the defendant to overcome the presumption of negligence by a preponderance of evidence and that the Defendant, J. C. Penney Company, Inc. failed to meet this requirement;

'. . . That Third Party Defendant, The Peele Company, a Corporation, and Haughton Elevator Company, a Division of Reliance Electric Company, cannot be held responsible under the doctrine of Res ipsa loquitur and was, therefore, dismissed from the action;'

The court erred in applying the doctrine of Res ipsa loquitur, and we therefore reverse the judgment of the trial court. In Oil Bldg. Corp. v. Hermann, 29...