Pedersen v. White-Evans Elevator Co., Inc.

• Decision Date: 08 June 1987
• Docket Number: No. 49A02-8603-CV-73,WHITE-EVANS,49A02-8603-CV-73
• Citation: 511 N.E.2d 460
• Parties: Esther PEDERSEN and Wilbur Pedersen, Appellants (Plaintiffs), v.ELEVATOR COMPANY, INC., Appellee (Defendant).
• Court: Indiana Appellate Court

Page 460

511 N.E.2d 460

Esther PEDERSEN and Wilbur Pedersen, Appellants (Plaintiffs), v. WHITE-EVANS ELEVATOR COMPANY, INC., Appellee (Defendant).

No. 49A02-8603-CV-73.

Court of Appeals of Indiana Second District.

June 8, 1987.

Publication Ordered Aug. 10, 1987.

Frederick W. Crow, Young & Young, Indianapolis, for appellants.

Norman T. Funk, Hill, Fulwider, McDowell, Funk & Matthews, Indianapolis, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Appellants-plaintiffs Esther Pedersen (Esther) and Wilbur Pedersen [hereinafter We affirm.

collectively referred to as the Pedersens] appeal the jury finding that appellee-defendant White-Evans Elevator Company, Inc. (White-Evans) was not liable for Esther's injuries as a result of an elevator accident, claiming the trial court erred in refusing to give instructions on res ipsa loquitur, in excluding the testimony of two of the Pedersens' witnesses, and in failing to give the Pedersens' tendered instructions concerning the weight and admissibility of negative evidence.

FACTS

On February 8, 1983, Esther, an employee of University Heights Hospital (the Hospital), was riding an elevator at the Hospital from the first to the second floor when the elevator allegedly "overshot" the second floor, hitting the top of the elevator shaft, falling down to the second floor, thus injuring Esther's back. Also riding on the elevator was Shirley Hockersmith (Hockersmith), who noticed no abnormal movements or sounds in the elevator, and testified that the elevator proceeded slightly past the second floor and then gradually "settled" back down. Hockersmith was not injured, nor did she believe that Esther could have been injured by the elevator's activity.

White-Evans installed the elevator at the Hospital and entered into a contract with the Hospital to provide maintenance and repair of the elevator. The Hospital's maintenance director testified that the Hospital's own maintenance department routinely responded to alleged malfunctions of the elevator before contacting White-Evans, although White-Evans was the only company providing maintenance and repair for the elevator. The elevators operated on electrical power supplied by the Hospital. White-Evans found a deficient voltage of electrical power being supplied to the elevator three days before the incident occurred. White-Evans made regular maintenance calls on the Hospital's elevators, and also responded to the Hospital's reports of any malfunctions.

White-Evans received notice of similar malfunctions of the same elevator on February 1 and 2, 1983, after which White-Evans inspected the elevator and found it working properly. White-Evans replaced the elevator's motor after another reported malfunction on February 4, 1983.

White-Evans was unable to find any manifest problem with the elevator after Esther was injured. The elevator did not overshoot at any time that White-Evans was inspecting the alleged problem. Although the employees of White-Evans testified that overshooting could be caused by numerous factors, they were unable to arrive at a conclusion as to the elevator's overshooting on this particular occasion.

An employee of White-Evans, Kevin Fillmore (Fillmore), testified that the lack of a proper amount of voltage furnished by the Hospital's power system to the elevator's call relays could cause overshooting. In fact, after inspecting the malfunction which allegedly caused Esther's injuries, Fillmore altered the call relays on the elevator and thereby caused overshooting.

The jury returned a verdict for White-Evans, from which the Pedersens now appeal.

ISSUES

The Pedersens raise three issues which we restate as:

1. Did the trial court err in refusing to give jury instructions on res ipsa loquitur?

2. Did the trial court err in excluding the testimony of two of the Pedersens' witnesses concerning prior accidents occurring in the same elevator?

3. Did the trial court err in refusing to give instructions on the weight and admissibility of negative evidence?

ISSUE ONE--Did the trial court err in refusing to give jury instructions on res ipsa loquitur?

PARTIES' CONTENTIONS--The Pedersens argue that the trial court erred in refusing to give instructions on res ipsa loquitur because there was sufficient evidence from which the jury could have inferred that White-Evans was in control of the elevator, and that the malfunction would not have occurred but for White-Evans' negligence.

White-Evans answers that the trial court did not err because the Pedersens failed to produce evidence establishing that the elevator was within White-Evans' control, that the elevator accident was more probably caused by White-Evans' negligence than by another cause, and that White-Evans was responsible for all reasonably probable causes of the elevator's malfunction.

CONCLUSION--The trial court did not err in refusing to give the Pedersens' tendered instructions on res ipsa loquitur because the evidence failed to support the instructions.

In reviewing a trial court's refusal to give tendered instructions, we use a three-part inquiry: (1) whether the tendered instructions are correct statements of the law, (2) whether there is evidence in the record to support the instructions, and (3) whether the substance of the instructions are covered by other instructions given by the court. Orville Milk Co. v. Beller (1985), Ind.App., 486 N.E.2d 555; Shull v. B.F. Goodrich Co. (1985), Ind.App., 477 N.E.2d 924, trans. denied.

The res ipsa loquitur doctrine is essentially a rule of evidence which permits an inference of negligence to be drawn from a certain set of facts. Hammond v. Scot Lad Foods, Inc. (1982), Ind.App., 436 N.E.2d 362. The rationale for the doctrine is that in certain situations a happening is so uniquely unusual, that without reasonable justification, those shown to be in exclusive control of the injuring instrumentality should be held responsible. Shull, supra; Carpenter v. Campbell (1971), 149 Ind.App. 189, 271 N.E.2d 163. The doctrine will apply when the injuring instrumentality is shown to have been under the exclusive control of the defendant, and the accident is one which in the ordinary course of things does not happen if those in control of the instrumentality employ proper care. Shull, supra; SCM Corp. v. Letterer (1983), Ind.App., 448 N.E.2d 686, trans. denied; Bituminous Fire & Marine Ins. Co. v. Culligan Fyrprotexion, Inc. (1982), Ind.App., 437 N.E.2d 1360; Deming Hotel Co. v. Prox (1968), 142 Ind.App. 603, 236 N.E.2d 613, trans. denied.

The judge's duty in determining whether to give a res ipsa loquitur instruction is to "determine whether the plaintiff has produced evidence from which a jury could reasonably conclude the existence of the underlying elements of exclusive control and probability of negligence. If there is no such evidence the instruction is properly refused." Shull, supra, at 928. Thus, the Pedersens were required to show both that the elevator would not have malfunctioned without negligence on the part of those in control and that White-Evans was the party in exclusive control. See id.

The evidence adduced at trial does not permit us to conclude that there was the probability of negligence on the part of White-Evans or that White-Evans was in exclusive control of the elevator when the malfunction occurred. In order to show the probability of negligence on the part of White-Evans, the Pedersens had to put forth evidence from which a reasonable person could conclude that more likely than not the accident was caused by White-Evans's negligence. Id. To show exclusive control by White-Evans, the Pedersens needed to show that White-Evans had the right and opportunity to exercise control or that "the evidence reasonably eliminate[d] explanations other than the defendant's negligence." Id. at 931.

"The injury must either be traced to a specific instrumentality or cause for which the defendant was responsible, or it must be shown that he was responsible for all reasonably probable causes to which the accident could be attributed."

W. PROSSER, HANDBOOK OF THE LAW OF TORTS Sec. 39, at 218 (4th ed. 1971) (footnotes omitted).

It is undisputed that White-Evans was contractually obligated to the Hospital to repair and maintain the elevator. Record at 619; Appellee's Brief at 18. There was no evidence, however, which indicated the probability of negligence, i.e., that this type of accident ordinarily would not have occurred without proper care on the part of White-Evans. The evidence likewise failed to show exclusive control by White-Evans, i.e., that Esther's injury was traced to a cause for which White-Evans was responsible or that White-Evans was responsible for all reasonably probable causes to which the accident could be attributed. See Shull, supra.

At the most, the evidence demonstrated that there were potentially numerous causes of overshooting of the elevator. Fillmore was unable to come to a conclusion as to the cause of the malfunction because the elevator failed to repeat the specific malfunction when he inspected it. The only cause of the elevator's overshooting which was explained in any detail was an electrical deficiency. Fillmore stated that a voltage deficiency in a building would "cause very erratic operations, which could include overshooting." Record at 715. The Hospital was completely in control of maintaining the voltage supply to the elevators. Record at 471, 715. The evidence showed that by preventing the call relays from working properly, Fillmore was able to re-create the overshooting. Fillmore stated that a "low voltage situation" was the only problem that he could think of which would prevent the call relays from properly working. Record at 721. Even though it could not be said with certainty that low voltage supplied by the Hospital caused the overshooting, the Pedersens put forth no specific evidence as to a potential cause of the malfunctioning in White-Evans's control or...