Manzi by Manzi v. Montgomery Elevator Co., 92CA0589

• Full Citation: Manzi by Manzi v. Montgomery Elevator Co., 865 P.2d 902 (Colo. App. 1993)
• Decision Date: 07 October 1993
• Citation: 865 P.2d 902
• Docket Number: No. 92CA0589,92CA0589
• Parties: Prod.Liab.Rep. (CCH) P 13,769 Danielle MANZI, by her next friend Mary MANZI, Mary Manzi and Larry Manzi, Plaintiff-Appellant, v. MONTGOMERY ELEVATOR COMPANY, Defendant-Appellee. . III
• Court: Colorado Court of Appeals

Page 902

865 P.2d 902

Prod.Liab.Rep. (CCH) P 13,769

Danielle MANZI, by her next friend Mary MANZI, Mary Manzi and Larry Manzi, Plaintiff-Appellant, v. MONTGOMERY ELEVATOR COMPANY, Defendant-Appellee.

No. 92CA0589.

Colorado Court of Appeals Div. III.

Oct. 7, 1993.

Rehearing Denied Nov. 12, 1993.

Geil, Jeffers & Waitkus, P.C., Philip D. Geil, Boulder, for plaintiff-appellant.

Vanatta, Sullan, & Sandgrund, P.C., Dean R. Vanatta, Curt T. Sullan, Englewood, for defendant-appellee.

Opinion by Judge JONES.

In this personal injury action, plaintiff, Danielle Manzi, appeals the judgment entered on a directed verdict in favor of defendant, Montgomery Elevator Company. Plaintiff also appeals from the order imposing sanctions against her attorney pursuant to § 13-17-101, et seq., C.R.S. (1987 Repl.Vol. 6A). We reverse the judgment in favor of defendant and dismiss the appeal of the sanctions order.

While shopping at a mall, plaintiff boarded an ascending escalator that was manufactured and serviced by defendant. As she was completing her ride, the toe of one of her tennis shoes became trapped when two step treads came together, and her shoe was then caught under the stationary comb plate at the top of the escalator.

At trial, plaintiff declined to present any direct evidence concerning the design or operation of the escalator, and instead relied upon the doctrine of res ipsa loquitur to establish that the accident was caused by defendant's negligence. At the close of plaintiff's evidence, the court ruled that res ipsa loquitur was inapplicable because plaintiff had failed to show that the accident did not result from causes other than defendant's negligence. Accordingly, the court directed a verdict in favor of defendant. The court subsequently ruled that plaintiff's claim lacked substantial justification, and it entered an order assessing attorney fees against plaintiff's counsel pursuant to § 13-17-101, et seq., C.R.S. (1987 Repl.Vol. 6A).

I.

On appeal, plaintiff contends that the court erred in entering a directed verdict for defendant. We agree.

Res ipsa loquitur is a rule of evidence which defines circumstances under which a presumption of negligence will arise as a matter of law. Such a presumption becomes operative when a particular unexplained occurrence creates a prima facie case of negligence without proof of specific misfeasance. Holmes v. Gamble, 624 P.2d 905 (Colo.App.1980), aff'd, 655 P.2d 405 (Colo.1982).

In order for the rule to apply, a plaintiff must establish the following: (1) the event is of the kind that ordinarily does not occur in the absence of negligence; (2) responsible causes other than the defendant's negligence are sufficiently eliminated; and (3) the presumed negligence is within the scope of defendant's duty to the plaintiff. Bettner v. Boring, 764 P.2d 829 (Colo.1988).

"To withstand a defense motion for a directed verdict on a cause of action premised on res ipsa loquitur, a plaintiff must adduce evidence, which, when viewed in a light most favorable to the plaintiff, establishes that the existence of each element is more probable than not." Holmes v. Gamble, supra, 655 P.2d at 409.

Here, a series of factors shown by the record reveals that res ipsa loquitur ought to have been applied by the trial court. The evidence revealed that plaintiff was riding the escalator in a common, non-negligent manner. Her tennis shoe was trapped by the escalator mechanism in a way as had never been experienced by her or by witnesses present at the time. Thus, it was a highly unusual accident which ordinarily would not occur in the absence of negligence.

Defendant's reliance on the case of Majors v. J.C. Penney Co., 31 Colo.App. 568, 506 P.2d 399 (1972), to rebut the conclusion that the escalator malfunctioned is not persuasive. The Majors case is distinguishable from this case because of the difference between the size of the child's finger which, there, was trapped in the larger space at the side of the escalator, and the size of the tennis shoe that, here, was trapped in a space between the step treads and the combplate which, when tested, would not allow a piece of paper or the edge of a clipboard.

Additionally, the child injured in Majors was engaged, voluntarily, in running up an escalator that was moving down, during which she fell and caught a finger. Here, the injury...