Not all premises liability cases require expert opinion on liability, but many do. What about premises liability cases where a plaintiff claims injury as the result of an elevator malfunction? Does the plaintiff need expert testimony to survive summary judgment? Or, can the plaintiff cut costs, forego the expert and simply rely on the doctrine of res ipsa loquitur? A recent decision in the Court of Common Pleas of Philadelphia County suggests the answer depends on how exactly you frame the “malfunction.”
The decision, set forth in the trial court order of Smith v. U.S. Facilities, Nos. 170903298, 180703933, 2019 WL 6790524 (Pa. Com. Pl. Nov. 25, 2019), arises out of an incident that occurred on August 2, 2016, at the Juanita Kidd Stout Criminal Justice Center (CJC) in Philadelphia. The plaintiff, Beverly Smith, an employee of the City of Philadelphia, was riding an elevator at the CJC when, suddenly, another elevator, operating near the elevator Ms. Smith was riding, ascended upward at a high rate of speed and crashed into the ceiling of the elevator shaft. The crash caused concrete to fall on the elevator carrying Ms. Smith, allegedly jostling her elevator. Ms. Smith claimed injuries to her neck, back and extremities, as well as emotional distress, as a result. Investigation into the accident revealed that the other elevator crashed into the ceiling because eight bolts near its motor had failed.
Ms. Smith sued various entities including Otis Elevator Company, Schindler Elevator Corporation and ThyssenKrupp Elevator Manufacturing. She did not, however, retain an elevator expert to produce a report. The defendants filed motions for summary judgment, arguing that without expert opinion, plaintiff could not meet her burden of proof to show that pre-accident work on the elevator was negligently performed or that the conduct of the defendants caused the bolts to fail. The plaintiff countered that the facts necessary to establish the failure of the equipment were capable of being understood by the jury without the aid of expert opinion and, further, that the doctrine of res ipsa loquitur rendered expert opinion unnecessary.
Common Pleas Judge Shelley Robins New agreed with the defendants, finding that the manner in which bolts may become loose or break is “beyond the scope of the average juror’s normal experience.” In addition, Judge Robins New found that the plaintiff could not rely on res ipsa loquitur.
The Court explained that Pennsylvania has adopted Section 328D of Restatement (Second) of Torts, which sets forth the elements of res ipsa loquitur. That section provides, in pertinent part: “It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when: (a) the event is of a kind that ordinarily does not occur in the absence of negligence . . . .” The Court held that the plaintiff could not establish this initial element of the doctrine—that the event is of a kind that ordinarily does not occur in the absence of negligence. In so holding, the Court stated that, in the absence of expert opinion, a plaintiff could satisfy this prong by “proving the existence of a fund of common knowledge from which a layperson could reasonably draw the inference or conclusion.” The Court found that there is no fund of common knowledge “concerning the process by which bolts are caused to break and become loose.” Thus, summary judgment was warranted.
Would the result have been different if the malfunction was described not as the bolts failing but rather as the crashing of the elevator into the ceiling? To answer that question, consider the current state of the law of Pennsylvania’s neighbor across the Delaware River.
In a 2018 decision by the New Jersey Supreme Court, McDaid v. Aztec West Condominium Association, 189 A.3d 321 (N.J. 2018), the Court held that the elevator malfunction at issue in that case was an “occurrence bespeaking negligence that falls within the common knowledge of judges and jurors,” thus obviating the need for expert testimony. The malfunction in that case was described as the closing of elevator doors on a passenger. The Court allowed the plaintiff to rely on res ipsa and survive summary judgment.
It is quite possible that the difference between Smith and McDaid hinges on how the court frames the “malfunction” at issue. Is the closing of elevator doors on a passenger truly the “malfunction?” Or, would it be more accurate to describe it as the effect of the malfunction, just as an elevator crashing into a ceiling may be regarded as the effect of the loosening and breaking of bolts? Ask an elevator expert, and they will tell you that an elevator door can come into contact with a passenger for any number of reasons. Causes may include dust or debris interfering with the door sensor, the electric eye of the door sensor reflecting off stainless steel side jambs of the elevator frame, the passenger inserting a hand or foot between closing doors at the last moment, or the very design of the elevator door requiring contact with the passenger before reopening, as seen in some older elevators having mechanical door bumpers/safety edges.
What courts on both sides of the Delaware river do agree on, however, is that an elevator is a complex piece of machinery. Given its undisputed complexities, a holding that a certain type of elevator accident must “bespeak of negligence” in all instances—as a matter of law—seems like a rather broad brush. A more nuanced approach—one that looks not simply at what the elevator did, but why it did what it did—seems better suited for complex mechanical systems, like elevators, and mitigates against the risk that blameless defendants become ensnarled in an overly wide net of res ipsa.