Schindler Elevator Corp. v. Carvalho

• Decision Date: 19 January 2005
• Docket Number: No. 4D03-4980.,4D03-4980.
• Parties: SCHINDLER ELEVATOR CORPORATION, a Delaware corporation, Appellant, v. Jacqueline CARVALHO, Appellee.
• Court: Florida District Court of Appeals

895 So.2d 1103

SCHINDLER ELEVATOR CORPORATION, a Delaware corporation, Appellant, v. Jacqueline CARVALHO, Appellee.

No. 4D03-4980.

District Court of Appeal of Florida, Fourth District.

January 19, 2005.

John R. Hargrove and Carol A. Gart of Gordon Hargrove & James, P.A., Fort Lauderdale, for appellants.

Daniel E. Jacobson and Michael B. Nipon, Delray Beach, for appellee.

WARNER, J.

A shopper, Jacqueline Carvalho, was injured when riding on an escalator. She sued Schindler Elevator Company, the escalator maintenance company, and Sears Roebuck, the store in which she was injured, for negligence.¹ Carvalho alleged that an escalator malfunction caused her to fall and sustain injuries. Schindler moved for a directed verdict on the ground that Carvalho did not prove her theory that Schindler's failure to maintain the escalator handrail resulted in a malfunction. While the trial court denied the motion, we reverse, concluding that even if the evidence was sufficient to show a lack of maintenance, Carvalho failed to prove how any lack of maintenance was a legal cause of the accident and injury.

Carvalho was shopping in a Sears store with a friend, Doreen Picone. As they approached the escalator to go to the second floor, they both noticed that the down escalator was stopped. They both saw a man on his knees at the bottom of the down escalator, but did not observe what he was doing. Carvalho and Picone continued to the second floor where they shopped. When they finished, they noticed that the down escalator was working, and they proceeded to descend to the first floor on the escalator.

About a quarter of the way down, they both felt a jerk, like a switch was turned off and on. Carvalho testified that this lasted for one or two seconds. Neither Carvalho nor Picone could testify whether the stairs, the handrail, or both stopped. The stopping caused Carvalho to tumble down the stairs, resulting in her injuries.

After the accident occurred, Bernard Sobol, a Sears manager, arrived on the scene. Picone told him that she had felt a "sudden surge" and that Carvalho fell forward. Sobol testified that the down escalator had not been shut down because such an event would have been reported to him.

At the time of the accident, Sears contracted with Schindler for the maintenance of the elevators and escalators. The contract required Schindler to maintain, repair, and test the escalators on a regular basis. It also required Schindler to keep a log book of all maintenance and repair work.

Immediately following the accident, Sears called Schindler to send someone out to inspect the escalator. The Schindler employee inspected the escalator for approximately twenty-five minutes and did not find any problems. He then shut it down to permit the regular maintenance employee to examine it. The regular technician inspected it the next day, checked several different components, and found everything in good order. At trial, he admitted that he did not check every part. However, he had serviced the handrail just six days prior to the accident. A state inspector checked the escalator approximately two months before the accident and did not find any problems.

On cross-examination the regular technician identified the maintenance log book. The log book did not contain a record of all maintenance and repair work. For instance, it did not record several work reports three months earlier for handrail problems on the escalator. The log book also did not show required regular maintenance of several components. The technician testified that he thought he checked the escalator more times than the log book indicated that he did.

Carvalho called Carl White as her escalator expert. White was formerly employed by Westinghouse Elevator Corporation, the manufacturer of the escalator in question. He investigated escalator accidents for Westinghouse. While his qualifications to testify were strenuously questioned, the court permitted him to testify as to the maintenance of escalators, over Schindler's objection as to its admissibility.

To formulate his opinion, White reviewed the depositions of Carvalho, Picone, the Sears managers, and the Schindler employees. He also examined the service records, work reports, and other documents regarding this particular escalator. He never personally examined the escalator involved in this case. Based on his review, he opined that the escalator malfunctioned at the time of the accident. However, consistent with the testimony of the Schindler technician, he agreed that the escalator did not stop, even though that was what Carvalho and Picone reported.

White testified that the lack of records demonstrated inadequate preventative maintenance which rendered the escalator in an unsafe condition at the time of the accident. However, he did not elaborate on how the maintenance would affect the escalator's operation. He simply opined, over objection, that if an escalator is properly maintained it will not malfunction. The most probable cause of the jolt Carvalho and Picone felt was a malfunction of the handrail, but he did not exclude the possibility of other things causing this reaction. Although it was his opinion that the handrail slowed or stopped, he could not explain what caused it to malfunction.

After the trial court denied the motion for directed verdict, Schindler presented its own expert who testified that if the handrail had stopped, a person holding the handrail would have his or her hand drawn back, and neither Carvalho nor Picone testified that their hands were pulled back. Schindler renewed its motion for directed verdict, which was denied. The jury returned a verdict in Carvalho's favor. From the judgment on that verdict, Schindler appeals.

White's opinion that a handrail malfunction caused the accident does not have a factual basis and did not provide evidence of negligence that was a legal cause of Carvalho's injuries. White conceded that none of the witnesses testified that any slowing of the handrail occurred. He admitted that he did not know specifically what caused the handrail to malfunction. Not only did White ignore the facts in the record, he never explained how inadequate maintenance caused the handrail to malfunction, nor did he even explain how an escalator operates. The jury was never given even a rough understanding of the workings of the handrail and how lack of maintenance could cause it to malfunction, if indeed it did. Thus, his opinion was unsupported by the facts.

Our supreme court has explained that opinion testimony which contains conclusions or inferences not supported by the record is inadmissible.

It is elementary that the conclusion or opinion or [sic] an expert witness based on facts or inferences not supported by the evidence in a cause has no evidential value. It is equally well settled that the basis for a conclusion cannot be deduced or inferred from the conclusion itself. The opinion of the expert cannot constitute proof of the existence of the facts necessary to the support of the opinion.

Arkin Constr. Co. v. Simpkins, 99 So.2d 557, 561 (Fla.1957). Illustrative of this point is D'Avila, Inc. v. Mesa, 381 So.2d 1172, 1173 (Fla. 1st DCA 1980), where a plaintiff's expert testified that the plaintiff's asthma resulted from an unsafe concentration of hazardous particles in the air. However, there was no evidence that air contamination existed. Likewise, White assumed that the handrail malfunctioned when there was no evidence presented that it did.

This case is remarkably similar to Jimenez v. GNOC, Corp., 286 N.J.Super. 533, 670...