Qualls v. U.S. Elevator Corp., 75729

Decision Date26 October 1993
Docket NumberNo. 75729,75729
Citation1993 OK 135,863 P.2d 457
PartiesNancy Price QUALLS, Plaintiff-Appellee, and Mabel I. Cheatwood, Plaintiff, v. UNITED STATES ELEVATOR CORP., Defendant-Appellant and Montgomery Elevator Co., and Shawnee Medical Center, Defendants.
CourtOklahoma Supreme Court

In a tort action against a hospital and an elevator company, qua maintenance provider, to recover for bodily harm occasioned by an elevator's rapid and sudden fall from the hospital's second floor to its basement, the District Court, Pottawatomie County, Milton C. Craig, Judge, entered judgment on jury verdict for the plaintiff solely against the elevator company and denied the latter's post-trial quest for judgment notwithstanding the verdict. The proof at trial followed a res ipsa loquitur pattern. The Court of Appeals reversed. On certiorari previously granted,


David T. Ingram, Shawnee, for defendant-appellant.

James S. Steph, Okmulgee, for plaintiff-appellee.

OPALA, Justice.

Two issues are presented on certiorari: (1) Did the trial court commit reversible error by instructing on a res ipsa loquitur pattern of proof? (2) Is there competent evidence to support the jury verdict? We answer the first question in the negative and the second in the affirmative.


Nancy Qualls [Qualls] and a friend were in an automatic elevator in the Shawnee Medical Center [Hospital] on December 9, 1987 when the elevator fell from the second floor and stopped suddenly in the basement. Qualls claims to have suffered injuries to her back. She brought a tort action The trial court refused submission of the case on a plaintiff-pressed products liability theory, but allowed the claim to go to the jury against both defendants based on their negligence. Over defendants' objections, the court instructed on the res ipsa loquitur pattern of proof. 2 Qualls prevailed only against U.S. Elevator. The verdict assessed her damages at $50,000.00. The trial court denied U.S. Elevator's post-verdict motion for judgment notwithstanding the verdict [JNOV] 3 and entered judgment (a) for the Hospital (denying recovery) and (b) in Qualls' favor against U.S. Elevator.

                against both the Hospital, which owned the automatic elevator, and United States Elevator Company [U.S. Elevator or the Company]. 1  The latter manufactured, installed and undertook (by maintenance contract with the Hospital) to service, repair and maintain the elevator.  Qualls alleged U.S. Elevator had defectively manufactured the product and the defendants (Hospital and U.S. Elevator) had negligently maintained it.  The Hospital cross-claimed against U.S. Elevator for indemnity

On appeal by U.S. Elevator, the lawyer-staffed division of the Court of Appeals reversed the trial court's judgment on jury verdict and remanded the cause with directions to enter judgment for that entity. The appellate court concluded that (1) a res ipsa loquitur instruction was not warranted because Qualls failed to prove that the Company had exclusive control of the elevator when it fell and (2) Qualls failed to prove that U.S. Elevator's want of due care directly caused her bodily harm. We granted certiorari and now reinstate and affirm the trial court's judgment.



Qualls urges on certiorari that the Court of Appeals erred by requiring proof that an identifiable negligent act of U.S. Elevator proximately caused her injuries. According to Qualls, she was entitled to rely upon a res ipsa loquitur pattern of proof. We are urged that whether U.S. Elevator had exclusive control of the elevator was a question of fact which the triers resolved in her favor.

U.S. Elevator asserts that because Qualls failed to prove her injuries resulted from an identifiable negligent act, she could not recover on a negligence theory, and since she attempted to show some specific negligent acts, she was barred from the benefit of res ipsa loquitur. According to U.S. Elevator, Qualls' claim must fail because she did not prove that the elevator was in its exclusive control at the critical time.



Res ipsa loquitur 4 is a pattern of proof which may be applied to an injury that does not occur in the usual course of everyday conduct unless a person who controls the instrumentality likely to produce injury fails to exercise due care to prevent its occurrence. 5 With the aid of res ipsa loquitur negligence may be inferred from the harm without the aid of circumstances pointing to the responsible human cause. 6 The fundamental element of this evidentiary process is the "control of the instrumentality" which caused the damage. 7 Whether a case is fit for the application of res ipsa loquitur presents a question of law; it is a judicial function to determine if a certain set of circumstances permits a given inference. 8

Among the earliest negligence plaintiffs to benefit from the evidentiary process introduced by res ipsa loquitur were passengers in public transportation conveyances 9 injured, while the appliance in which they were riding remained under the defendant's management, in a course of unexplained events that, according to human experience, do not ordinarily happen if due care is exercised. 10 An automatic elevator's sudden descent may raise a rebuttable inference of negligence under the res ipsa loquitur evidentiary process if the occurrence was due to some mechanism's failure which would not ordinarily happen when due care is exercised in the appliance's construction, installation and maintenance by the person charged with those responsibilities. 11 Elevator mechanisms are hidden from view, and since they consist of mechanical, electrical, and sophisticated electronic systems, they are at any rate not easily capable of manifesting a defect. Once the button is pressed, a rider has no control whatsoever over the events which follow. Even when, after the fact, experts are able to examine the physical

                evidence, proof is not easy to come by.  A defendant's knowledge of the incident's cause often would exceed, if not indeed supersede, that of the plaintiff. 12  In sum, while invocability of res ipsa loquitur must be assessed on the facts of each case, 13 its application to transportation appliances is not without a firm foundation in early and recent national res ipsa jurisprudence.





U.S. Elevator concedes that the cause of Qualls' bodily harm (if any) was the elevator's descent from the second floor of the hospital into the basement. In dispute between the parties is whether (a) Qualls' proof to show the elevator in U.S. Elevator's exclusive control is sufficient to support a res ipsa loquitur instruction and (b) there is competent evidence to support the jury verdict.

Whether a defendant at the critical point in contest had "exclusive control" of an instrumentality in the res ipsa loquitur sense often constitutes a mixed question of law and fact. At the threshold the issue is one of law for the judge. It calls for the trial court to decide whether the evidence may lead reasonable persons to reach different conclusions. 14 If the proof is not so overwhelmingly one-sided as to make the control element a matter of law, the question must go to the jury. 15 Where there is any competent evidence to support the verdict, the judgment will be affirmed unless otherwise shown to be contrary to law. 16

U.S. Elevator, who manufactured, installed and undertook (by maintenance contract with the hospital) to service, repair and maintain the elevator, urges that exclusive control must be measured by ownership and management of the instrumentality causing the injury and argues that an entity responsible for its service, maintenance and repair lacks the critical control which would entitle plaintiff to rely on a res ipsa loquitur pattern to prove the maintenance contractor's negligence. 17 A narrow reading of the "exclusive control" element U.S. Elevator advances for our adoption would confine res ipsa to cases where there is but one defendant.

Exclusive control, 18 which is a flexible concept with a much broader scope than that urged by the Company, does no more than eliminate, within reason, all explanations for the injurious event other than the defendant's negligence 19--i.e., it shows that defendant's negligence probably caused the accident. 20 The term implies more than actual possession and use at the time of the occurrence. The required control element may be shifted and, under some circumstances, it may be shared. 21 In short, control may rest in one who assumes responsibility for the fitness of an instrumentality for its intended use. 22 If an elevator is covered by a maintenance agreement, the ambit of a The contract in this case provides that the Company will maintain the elevator, using skilled, trained personnel, supervised and directly employed by the Company, and that it will regularly and systematically examine, adjust, lubricate, and repair or replace the machinery. 24

maintenance contractor's duty to third persons may be measured by the nature and scope of its contractual undertaking. 23

According to U.S. Elevator exclusive control as a matter of law must be found to have been exercised only by the Hospital. This is urged because hospital employees (a) rode the elevator once a day to inspect its operation, (b) had, on occasion, added oil to the elevator reservoir, and (c) called U.S. Elevator if service (other than a monthly routine service call) was needed.

The triers may have surmised that even with the Hospital's daily inspection ride, its employees could not have discovered any more about...

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