Swann v. Prudential Ins. Co. of America

• Decision Date: 01 September 1992
• Docket Number: No. 658,658
• Citation: 620 A.2d 989,95 Md.App. 365
• Parties: David SWANN v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, et al. ,
• Court: Court of Special Appeals of Maryland

Page 365

95 Md.App. 365

620 A.2d 989

David SWANN v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, et al.

No. 658, Sept. Term, 1992.

Court of Special Appeals of Maryland.

Feb. 1, 1993.

Reconsideration Denied March 30, 1993.

Alan L. Fishbein (Fishbein & Fishbein, P.A., on brief), Ellicott City, for appellant.

Kelly A. Saunders (Susan M. Kalil and Carr, Goodson & Lee, P.C., on brief), Rockville, for appellees, Prudential and Carey Winston.

Francis X. Quinn (John A. Rego and Anderson & Quinn, on brief), Rockville, for appellee, Dover.

Argued before WILNER, C.J., and MOYLAN and BISHOP, JJ.

BISHOP, Judge.

Appellant, David Swann ("Swann"), filed a complaint against Prudential Insurance Company of America ("Prudential"), Carey Winston Company ("CW"), and Dover Elevator Company ("Dover") (hereinafter collectively referred to as "Appellees") in the Circuit Court for Montgomery County, alleging negligent maintenance of an elevator (Count I) and product liability (Count II). Swann dismissed Count II. A jury trial was held on Count I. At the close of Swann's case and at the conclusion of the trial, Prudential and CW moved for judgment. The trial court denied their motions and the jury found in favor of Appellees. Swann filed a timely notice of appeal. Prudential and CW filed a cross-appeal.

Issues

Swann's appeal

I. Whether the trial court erred in excluding evidence concerning:

(A) the elevator maintenance study performed by the Newmont Elevator Company;

(B) post-accident misleveling incidents;

(C) deposition testimony of corporate officials of Dover and national accident data of other elevator misleveling incidents of Dover?

II. Whether the trial court erred in admitting evidence concerning:

(A) collateral source payments;

(B) late disclosed expert witness opinions;

(C) opinions of witnesses neither disclosed nor qualified as expert witnesses;

(D) a race discrimination suit involving the appellant?

III. Whether the trial court erred in failing to give:

(A) a res ipsa loquitur instruction;

(B) a missing evidence instruction;

(C) an instruction that a violation of a statute can be considered evidence of negligence; and

(D) an instruction that the duty owed to business invitees by a property owner is non-delegable?

Prudential and CW's Cross-Appeal

IV. Did the trial court err by denying Prudential's and CW's motions for judgment?

(A) Was there evidence that Prudential and CW had notice of a misleveling problem?

(B) Was there evidence that a breach of duty owed by CW proximately caused the elevator to mislevel on February 2, 1987?

Since we decide this appeal in favor of Prudential and CW based on issues I, II, and III, we need not address their cross-appeal.

Facts

On February 2, 1987, Swann and a co-worker, Murtha Donovan, Jr. ("Donovan"), summoned an elevator (designated "elevator number two") located in their place of employment. When the elevator arrived, it did not level properly with the floor, and Swann tripped and stumbled while boarding. The elevator was "[s]omewhere around a foot," "[s]omewhat greater than about a foot," or as many as eighteen inches below floor level. Ordinarily, the height of the elevator's door opening was seven feet. As a result of the incident, Swann claimed he sustained severe, painful and permanent personal injuries.

After the elevator arrived but before entering it, Swann looked into the elevator and saw no exiting passengers. Neither Swann nor Donovan noticed the elevator had misleveled until after Swann stepped into the elevator. At trial, Swann's expert in the field of human factors psychology opined that when an elevator door opens, people ordinarily "look forward at essentially their own eye level, first to see that the door opens; second, to see that nobody is coming out; and if there is time later on, there are two or three seconds available, to look towards the walking surface itself." When asked if he had an opinion "whether an elevator that was between six to twelve inches below the floor level would be able to be detected in sufficient time to allow the person to keep from stepping in or falling into the elevator," he added: "If somebody knew to look, if they expected the problem to occur, yes; if they did not, no.... I would not normally expect people to do a safety inspection adequate to determine that the elevator has not leveled, because they would have no reason to do so."

Elevator number two, an automatic self-service elevator, was located in a building owned by Prudential, managed by CW, and leased exclusively to Swann's employer, IBM. Dover manufactured and installed the elevator, and has been under contract with CW to maintain the elevator ever since its installation.

The Dover Master Maintenance Service Agreement ("the Agreement") in effect from July 1, 1985 through the date of the incident required that Dover "[r]egularly and systematically examine, adjust, lubricate and, whenever required by the wear and tear of normal elevator usage, repair or replace the equipment (except for the items stated hereafter), using trained personnel directly employed and supervised by [Dover] to maintain the equipment in proper operating condition." Although the Agreement specifically excludes several elevator components and associated systems, the component that Swann contends caused the misleveling, the "14 and 15 contacts", was not excluded. Further, CW agreed that it shall remain in exclusive "possession or control of the equipment" and that it would prohibit "others [from] mak[ing] changes, adjustments, additions, repairs or replacements to the equipment."

When an elevator needed repair, IBM contacted CW. CW did not attempt to repair the elevators; rather, it turned the elevator off when a problem arose and placed a call to Dover. Joan Berman, CW's senior vice-president in charge of property management, testified that "[CW] cannot do anything on th[e] elevator ... [b]ecause the only people that are allowed to work on the elevator based on the [Agreement] are the people who come from Dover Elevator." David Geist, CW's chief building engineer, testified that he was not permitted to work on the elevator. When asked why, he responded: "[b]ecause that is why we have a contract with Dover to repair the elevators. I do not know anything about repairing the elevators."

Ronald Bothell ("Bothell"), a maintenance repairman for Dover, testified that he would spend six hours every other week performing preventive maintenance on the four elevators in Prudential's building. On as many as four occasions within a span of six weeks preceding the incident--December 17, 1986, January 7, 1987, January 21, 1987, and January 28, 1987--and on the day of the incident, Dover was advised of misleveling problems with elevator number two. A repair order dated January 7 indicates that the 14 and 15 contacts were "burned closed" and that Bothell cleaned the contacts and replaced brushes. According to Donald Moynihan ("Moynihan"), Swann's expert in the field of elevator engineering, installation, design, and maintenance, elevator number two misleveled because the 14 and 15 contacts were filed clean rather than replaced. Although Dover did not present expert testimony on elevator maintenance and repair, Bothell testified that the elevator could not have misleveled any more than an inch based upon his observations and experience and, in any event, cleaning the 14 and 15 contacts was proper and adequate because the contacts were not welded together, they merely had an accumulation of crystallized dust particles.

Other facts will be provided, infra, as appropriate to the discussion.

Discussion

I

Swann first contends that the trial court erred when it excluded testimony and other evidence that was both relevant and material to the issues in dispute.

"For an item of evidence to be admissible, it must be both relevant and material. Evidence is material if it tends to establish a proposition that has legal significance to the litigation. Evidence is relevant if it is sufficiently probative of a proposition that, if established, would have legal significance to the litigation."

Wilson v. Morris, 317 Md. 284, 291, 563 A.2d 392 (1989) (quoting Paige v. Manuzak, 57 Md.App. 621, 632, 471 A.2d 758, cert. denied, 300 Md. 154, 476 A.2d 722 (1984)). This notwithstanding, we must adhere to "the long-standing principle that the admission or exclusion of evidence is a function of the trial court which, on appeal, is traditionally viewed with great latitude." Ellsworth v. Sherne Lingerie Inc., 60 Md.App. 104, 118, 481 A.2d 250 (1984), rev'd on other grounds, 303 Md. 581, 495 A.2d 348 (1985). "An appellate court will only reverse upon finding that the trial judge's determination was 'both manifestly wrong and substantially injurious.' " Lomax v. Comptroller of the Treasury, 88 Md.App. 50, 54, 591 A.2d 1311 (1991) (quoting Paige, 57 Md.App. at 633, 471 A.2d 758).

With these principles in mind, we shall consider whether the trial court abused its discretion in refusing to admit the evidence Swann proffered.

(A) Newmont Elevator Company Study

Swann offered evidence of an evaluation report the Newmont Elevator Company (an elevator consulting firm) prepared at Prudential's request. According to Swann, the report criticized Appellees for failing adequately to stock spare parts on site and failing to retain repair orders from Dover's service calls. Swann argues that the study is relevant and material to two issues: first, the inadequate supply of spare parts is relevant to the jury's resolution of whether a particular electrical contact should have been replaced during the service call immediately prior to the incident; and second, the failure to maintain call back and repair order records prevented recognition of the pattern of misleveling incidents occurring before the incident. Swann contends the study defines the standard of care owed by Appellees with respect to the care and maintenance of the elevator and...