Dover Elevator Co. v. Swann

We are called upon once again to analyze the multifarious doctrine of res ipsa loquitur. As Chief Judge Orth once exclaimed for the Court of Special Appeals, “[e]ver since 1863 when a barrel of flour rolled out of a warehouse window in England and injured a person passing on the public street, the thing has been attempting to speak for itself....” C & P Tel. Co. v. Hicks, 25 Md.App. 503, 509, 337 A.2d 744, 748, cert. denied, 275 Md. 750 (1975). The doctrine of res ipsa loquitur has also been described as “ ‘a thing of fearful and wonderful complexity and ramifications, and the problems of its application and effect have filled the courts of all our states with a multitude of decisions, baffling and perplexing alike to students, attorneys and judges.’ ” Meda v. Brown, 318 Md. 418, 422, 569 A.2d 202, 204 (1990) (quoting William L. Prosser, Res Ipsa Loquitur in California, 37 Calif.L.Rev. 183, 183 (1949)).

In the case before us, we shall address the theory of res ipsa loquitur in the context of injuries sustained by the plaintiff, David Swann, as a result of an allegedly misleveled 1 elevator car. The two issues presented by the defendant-petitioner, Dover Elevator Company, are summarized as follows:

*234 1. May the plaintiff, who has proffered direct evidence of the specific cause of his injuries, also rely on the doctrine of res ipsa loquitur in order to establish the defendant’s negligence?

2. If res ipsa loquitur was an appropriate basis for finding the defendant negligent, did the trial judge err in failing . to so instruct the jury and, if so, was that error harmless?

For the reasons stated below, we shall reverse the decision of the Court of Special Appeals. See Swann v. Prudential Ins., 95 Md.App. 365, 620 A.2d 989 (1993).

I. Facts

The plaintiff, David Swann, was injured on February 2, 1987, while attempting to board an elevator that allegedly failed to level properly with the floor. The elevator (designated “elevator number two”) is in an office building located at 2277 Research Boulevard in Rockville, Maryland. The building is owned by Prudential Insurance Company of America, managed by Carey Winston Company and leased by IBM, Swann’s employer and the building’s sole tenant. Elevator number two was manufactured, installed and exclusively maintained by the petitioner, Dover Elevator Company. With the exception of IBM, all of the above-listed organizations were named as defendants in this action.

Upon entering elevator number two, Swann stumbled (but did not fall) and struck his back on the rear wall of the elevator car. The elevator was allegedly “[s]omewhere around a foot” or “[s]omewhat greater than about a foot” lower than the level of the floor from which Swann entered the elevator. At the time Swann entered the elevator car, he was conversing with a coworker, Murtha Donovan, Jr. According to Donovan, Swann did not see the level of the elevator car as he entered it because the two coworkers were looking at each other as they conversed. Donovan entered the elevator car immediately after Swann without incident.

On November 21, 1988, Swann filed a complaint against Prudential Insurance Company of America and Dover Eleva *235 tor Company in the Circuit Court for Montgomery County, Maryland. The complaint alleged that Swann suffered $3,000,000.00 in damages as a result of the defendants’ negligence and defects in the design, manufacture, installation and maintenance of elevator number two. By an amended complaint, Swann included Carey Winston Company as a defendant in the action. The product liability claim was later dismissed as to all the defendants and a two-week jury trial on the negligence claims was held in January, 1992.

At trial, Swann offered the expert testimony of Donald Moynihan, an elevator consultant and engineer. Mr. Moynihan testified that he conducted an inspection of elevator number two and the machine room in December, 1990. He also testified that he reviewed all of Dover’s available maintenance records. These records indicated service calls to correct misleveling problems with elevator number two on various dates from December, 1986 to February, 1987. Ronald Bothell was the mechanic who maintained and serviced elevator number two for Dover.

The specific negligence alleged by Moynihan’s testimony was as follows: 1) Dover was negligent in filing and cleaning, as opposed to replacing, contacts 14 and 15 on elevator number two, resulting in a faulty current and the misleveling; 2) Dover was negligent by failing to spend adequate time servicing the elevator; 3) Dover’s maintenance records were deficient; and 4) Dover failed to properly stock replacement parts in the elevator’s machine room. Swann contends the elevator’s misleveling was probably caused by an irregular current running between the number 14 and 15 contacts. The importance of this contention was explained by the Court of Special Appeals: “Although [Dover’s Maintenance] 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.” Swann, 95 Md.App. at 373, 620 A.2d at 993.

Following a trial on the merits, the jury returned a verdict in favor of all the defendants. Swann appealed to the Court of *236 Special Appeals, which affirmed the verdict as to Prudential and Carey Winston, but reversed the verdict as to Dover. Swann, 95 Md.App. at 418, 620 A.2d at 1015. Dover petitioned this Court for a writ of certiorari, which was granted on July 22, 1993 in order to address the aforementioned issues.

II. Analysis of the Res Ipsa Loquitur Doctrine

Res ipsa loquitur is applied in negligence actions as a permissible inference that literally means “the thing speaks for itself.” Benedick v. Potts, 88 Md. 52, 55, 40 A. 1067, 1068 (1898). Res ipsa loquitur is “merely a short way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify a [court or] jury in inferring negligence as the cause of that accident.” Id. The doctrine allows a plaintiff the opportunity to establish a prima facie case “when he could not otherwise satisfy the traditional requirements for proof of negligence.” Pahanish v. Western Trails, Inc., 69 Md.App. 342, 359, 517 A.2d 1122, 1130-31 (1986). The jury is thereby permitted, but not compelled, to infer a defendant’s negligence without the aid of any direct evidence. Even when the doctrine applies, however, the burden of proving the defendant’s negligence remains upon the plaintiff. Munzert v. American Stores, 232 Md. 97, 103, 192 A.2d 59, 62 (1963) (noting that a permissible inference of negligence does not shift the burden of proof to a defendant but only presents a question of fact to the jury). See also Shirks Motor Express v. Oxenham, 204 Md. 626, 635, 106 A.2d 46, 49 (1954) (stating that, if the trial court finds conflicting permissible inferences, the choice between them is made by the jury); Harris v. Otis Elevator, 92 Md.App. 49, 51-52, 606 A.2d 305, 307 (1992) (inference of negligence may arise from circumstances of the case without shifting burden of proof to defendant). Under Maryland’s tort law, successful reliance on res ipsa loquitur requires proof of the following three components:

“ “T. A casualty of a sort which usually does not occur in the absence of negligence.

*237 2. Caused by an instrumentality within the defendant’s exclusive control.

3. Under circumstances indicating that the casualty did not result from the act or omission of the plaintiff.” ’ ”

Meda, 318 Md. at 423, 569 A.2d at 204 (quoting Hicks, 25 Md.App. at 516, 337 A.2d at 752, in turn quoting Leikach v. Royal Crown, 261 Md. 541, 547-48, 276 A.2d 81, 84 (1971)).

A plaintiffs reliance on res ipsa loquitur is generally necessitated, therefore, by the fact that direct evidence of negligence is either lacking or solely in the hands of the defendant. As stated by this Court in Peterson v. Underwood, 258 Md. 9, 19, 264 A.2d 851, 856 (1970), “relaxation of the normal rules of proof is thought to be justified because the instrumentality causing injury is in the exclusive control of the defendant, and it is assumed he is in the best position to explain how the accident happened.” (Emphasis added). Antithetically, numerous Maryland cases have explained that a plaintiffs “attempt to establish specific grounds of alleged negligence precludes recourse to the doctrine of res ipsa loquitur.” Smith v. Bernfeld, 226 Md. 400, 409, 174 A.2d 53, 57 (1961). See also Peterson, 258 Md. at 20, 264 A.2d at 857 (holding that res ipsa loquitur was unavailable because “plaintiff attempted to establish specific grounds of negligence”); Smith v. Baltimore Transit Co., 214 Md. 560, 566, 136 A.2d 386, 389 (1957) (stating that, “where the plaintiff himself proves the details of the happening and, having undertaken to prove the details, he has foregone reliance on res ipsa loquitur”).

The dilemma between the doctrine of res ipsa loquitur and offering direct evidence of negligence is best summarized by the oft-quoted discussion in Hickory Transfer Co. v. Nezbed, 202 Md. 253, 96 A.2d 241 (1953):

“In this case the plaintiffs themselves proved the details of the happening, foregoing reliance on res ipsa loquitur; and, having undertaken to prove the details, they failed to show negligence on the part of the defendants. Indeed, they explained away the possible inference of negligence. Paradoxically, the plaintiffs proved too much and too little.”

*238 202 Md. at 263, 96 A.2d at 245. See Blankenship v. Wagner, 261 Md. 37, 39 & n. 2, 273 A.2d 412, 413 & n. 2 (1971); Isen v. Phoenix Assurance Co., 259 Md. 564, 575, 270 A.2d 476, 481 (1970); Roberts v. Cave, 257 Md. 582, 588, 263 A.2d 863, 866 (1970); Stoskin v. Prensky, 256 Md. 707, 715, 262 A.2d 48, 52 (1970). See also Swann, 95 Md.App. at 393, 620 A.2d at 1003. The question presented by the instant case is, therefore, whether the plaintiff attempted to prove the “details of the happening,” thereby precluding his reliance on res ipsa loquitur.

In addressing this question, the Court of Special Appeals preliminarily acknowledged that, “ ‘if there is direct evidence of negligence, and all the facts causing the injury are known and testified to by witnesses at the trial,’ ” there is no basis for the application of res ipsa loquitur. Swann, 95 Md.App. at 391, 620 A.2d at 1002 (quoting Frenkil v. Johnson, 175 Md. 592, 605, 3 A.2d 479, 485 (1939)). The intermediate appellate court also relied substantially on our opinion in Blankenship v. Wagner, including the following proposition:

“ ‘If the plaintiff has circumstantial evidence which tends to show the defendant’s negligence (and which is therefore consistent with the inference relied upon in res ipsa loquitur) he should not as a matter of policy be discouraged from coming forth with it. If, however, the evidence introduced by the plaintiff or the defendant shows that everything relative to the case is known, and that the injury might have been caused by something other than defendant’s negligence (thereby negating the inference normally relied upon in res ipsa loquitur), then the plaintiff will not be allowed to avail himself of the doctrine. In such a case, if plaintiffs proof fails to make out a prima facie case of negligence then it is proper to direct a verdict for the defendant.’ ” (Emphasis in original and emphasis deleted).

Swann, 95 Md.App. at 394-95, 620 A.2d at 1003 (quoting Blankenship, 261 Md. at 46, 273 A.2d at 417).

Nonetheless, the Court of Speciál Appeals in the instant case held that “Swann’s attempt to prove specific acts of *239 negligence did not prevent him from requesting that the jury be instructed on both negligence and res ipsa loquitur” Swann, 95 Md.App. at 397, 620 A.2d at 1005. The intermediate appellate court determined that Swann did not purport to furnish a complete explanation of the elevator’s misleveling, even in light of specific evidence regarding Dover’s failure to replace contacts 14 and 15, its allegedly inadequate maintenance of elevator number two, and its allegedly deficient service records. In examining this evidence, the court declared the following:

“Swann did not, however, purport to furnish a complete explanation of the accident. Indeed, Swann offered evidence establishing that Dover responded to reports of mislevelings on two separate occasions following the January 7th repair [when contacts 14 and 15 were filed]. There was no evidence of what, if any, corrective measures Dover took on those dates. It may well be that Dover negligently repaired the elevator on one, or both, of those occasions and such negligent act or acts caused the February 2nd misleveling incident. Further, at the close of the evidence, there was a dispute as to what caused the accident. Bothell testified that it was proper to clean, rather than replace, the 14 and 15 contacts, and that the door clutch mechanism prevents the elevator doors from opening when the elevator cab is greater than an inch or two from floor level. Therefore, ‘reasonable men might [have] differ[ed] as to the effect of the evidence before the jury.’ ”

Swann, 95 Md.App. at 395-96, 620 A.2d at 1004 (quoting 1 Stuart M. Speiser, Res Ipsa Loquitur § 5:19, at 190 (1972)).

We find that the plaintiffs expert witness, Donald Moynihan, did purport to furnish a sufficiently complete explanation of the specific causes of elevator number two’s misleveling, which would preclude plaintiffs reliance on res ipsa loquitur. Mr. Moynihan’s trial testimony was based upon his review of all the defendant’s maintenance records regarding the work done on elevator number two, in addition to his on-site inspections of the elevator and machine room. Pertinent portions of that testimony consisted of the following:

*240 “[PLAINTIFF’S COUNSEL:] Mr. Moynihan, I would like you to look at what has been marked for identification as Plaintiffs Exhibit 47. Is this a blowup of the time and repair order and certificate of time for 1/7/87 that you are looking at?

[MOYNIHAN:] That is correct, sir.

******

[PLAINTIFF’S COUNSEL:] Now, Mr. Moynihan, can you tell from your review of this document what was being done by Mr. Bothell on that occasion; that is, January 7, 1987?

[MOYNIHAN:] Yes. On this document it reads, ‘Car number 2 wasn’t leveling. Cleaned 14 and 15 contacts, as it was burned closed, and replaced brushes [and] left car in service.’

[PLAINTIFF’S COUNSEL:] Okay. Is that the same car that you viewed when you were in this building in December of 1990?

[MOYNIHAN:] Yes.

******

[PLAINTIFF’S COUNSEL:] What is the significance when one of these contacts or two of these contacts burn out? What does that mean?

[MOYNIHAN:] Oh. When they are burned closed, that means that they were welded, and if they are welded, that must mean that you have developed very high heat for these contacts to be welded or ... stuck together.

******

[PLAINTIFF’S COUNSEL:] How does that affect the leveling, when something like this occurs?

[MOYNIHAN:] [The elevator] will go very fast, much faster or slower.

[PLAINTIFF’S COUNSEL:] How does that interrelate to the ability of the elevator to come flush with the floor, or a particular floor?

[MOYNIHAN:] At times it will cause the elevator to overshoot or at times it will cause the elevator to stall in the *241 leveling zone. So, two things can happen: It can stall or it can overshoot.

[PLAINTIFF’S COUNSEL:] Now, on this occasion, what did Mr. Bothell do with those two contacts at 14 and 15?

[MOYNIHAN:] I read his deposition. He took a file to them and filed them.

[PLAINTIFF’S COUNSEL:] In your opinion, sir, is that an appropriate method [of] working] on the contacts?

[MOYNIHAN:] Absolutely not.... Terrible. It shouldn’t be done. I don’t know why he did it. It was wrong. These are very sensitive contacts, the resistance, and putting the file on them is just wrong.... I don’t know what he was thinking of.

[PLAINTIFF’S COUNSEL:] Now, what happens if you file down one of these contacts?

[MOYNIHAN:] It will change the resistance, the whole circuit will be changed.

[PLAINTIFF’S COUNSEL:] What, in your opinion, Mr. Moynihan, to a reasonable degree of engineering probability, is the proper course of conduct when a mechanic finds burnt contacts at 14 and 15?

[MOYNIHAN:] Replace [them],

[PLAINTIFF’S COUNSEL:] Why is that?

[MOYNIHAN:] It is the only way to do [it]. First of all, you can’t correct them by cleaning them when they are burned like that. They should be replaced.” (Emphasis added).

The defense attempted to refute Moynihan’s testimony concerning the contacts -with the testimony of Ronald Bothell, Dover’s technician who worked on elevator number two. Upon reviewing the repair tickets, Bothell testified that he filed and cleaned the contacts on his January 7, 1987 service call. He also testified that this was an appropriate measure under the circumstances, because polishing the contacts “takes the film off’ them and produces a “full contact” or sufficient *242 current. During the course of his testimony, Mr. Bothell also attested to the following:

“[DEFENSE COUNSEL:] Now, when you arrived again on January 7th were these contacts welded together in any way?

[BOTHELL:] No.

[DEFENSE COUNSEL:] If they were welded together what would they be like?

[BOTHELL:] It would just be like this.

[DEFENSE COUNSEL:] And how would you get that apart? What would you have to do?

[BOTHELL:] You would have to replace them.

[DEFENSE COUNSEL:] And let me ask you this. As to what you have shown us there[,] the condition that you found and you described, would that have an effect on the operation of the elevator?

[BOTHELL:] Of course it would.

[DEFENSE COUNSEL:] And how would it affect it?

[BOTHELL:] It would affect it as you are going into the floor. Your car would come into the floor, slow down, not come to a complete stop, inch on by the floor. Then it would relevel back up until it [is] level.

* * * * * *

[DEFENSE COUNSEL:] Would that have an effect on levelling?

[BOTHELL:] Yes.

[DEFENSE COUNSEL:] And what effect would it have on levelling?

[BOTHELL:] Well, the car will go by the floor, it will go above it or below it I would probably say an inch and then level back up and then it will come in level, stop and open the doors.

*243 [DEFENSE COUNSEL:] Now, that is the condition that you corrected on January 7th in response to [the] call back of January 6th, is that correct?

[BOTHELL:] Yes, sir.”

Plaintiffs counsel then cross-examined Bothell with respect to the following:

“[PLAINTIFF’S COUNSEL:] Now, you also replaced the brushes on this particular occasion, is that not correct?

[BOTHELL:] Yes, sir.

[PLAINTIFF’S COUNSEL:] And that is something that you have to check all the time?

[BOTHELL:] Yes, sir.

[PLAINTIFF’S COUNSEL:] And you also have to check these contacts because they get dirt and dust blown into them, is that not correct?

[BOTHELL:] Yes, sir.

[PLAINTIFF’S COUNSEL:] And sometimes they burn, is that not correct?

[BOTHELL:] They burn, yes, sir.

[PLAINTIFF’S COUNSEL:] And when they burn they mislevel?

[BOTHELL:] Yes.

[PLAINTIFF’S COUNSEL:] Is that not correct?

[BOTHELL:] Yes, sir.

[PLAINTIFF’S COUNSEL:] When was the time preceding January 7th, 1987 that you had last cleaned these contacts?

[BOTHELL:] I have no idea.

[PLAINTIFF’S COUNSEL:] You have no idea?

[BOTHELL:] No.

* * * * * *

[PLAINTIFF’S COUNSEL:] So if you had wanted to replace [the contacts] you could have?

[BOTHELL:] If [they] needed it I would have, yes.”

*244 Finally, in his closing argument, plaintiffs counsel reemphasized all the direct evidence previously offered:

“The issue still remains [that] if this device was burned or burned closed what was Dover’s obligation ... on the 7th of January 1987 with respect to this elevator.

Now, as you may recall and it has been some time now, Mr. Moynihan testified that these contacts are very sensitive devices and they should not be filed. The reason is he said because it affects the electrical properties of the contact.

It is like any other electric device; if you take away the metal, even if you just file it slightly, you can affect the way the contact is made. If you do that you are going to have intermittent problems, which seems to be consistent with what happened thereafter; that is that these problems continued to occur.

Mr. Bothell said that it was his practice to take this file, insert it as he did and file this material off. That may be true, that may not be true. It is really ... your judgment call as to whether that was an appropriate conduct in light of what Mr. Moynihan said was the appropriate standard of care.”

Plaintiffs counsel concluded that the contacts in question were inexpensive parts and readily available in Mr. Bothell’s service truck.

As illustrated by these excerpts, Mr. Moynihan testified to the probable cause of elevator number two’s misleveling. He specifically testified that contacts 14 and 15 were “burned closed,” which would cause the elevator to either “overshoot” or “stall” in the leveling zone. He further rendered an opinion, “to a reasonable degree of engineering probability,” that the proper and reasonable course of action when the contacts are “burned closed” is to replace them. He concluded by testifying that this course of action was not taken by Dover’s elevator technician, Ronald Bothell. According to the repair records and Moynihan’s expert testimony, Mr. Bothell attempted to clean the contacts by filing them and, in Moyni *245 han’s opinion, this was an unreasonable or “[tjerrible” course of conduct.

The additional testimony offered by Ronald Bothell also addressed the “burned” contacts in an apparent attempt to refute the direct evidence offered by the plaintiffs expert witness. Finally, in his closing argument, plaintiffs counsel developed a negligence theory around the direct evidence offered throughout the trial. Hence, the jury was presented with an issue of whether cleaning rather than replacing the contacts was negligent.

In arriving at its conclusion that this direct evidence of negligence did not preclude the plaintiffs reliance on res ipsa loquitur, the Court of Special Appeals extensively discussed two principal cases: Blankenship v. Wagner, 261 Md. 37, 273 A.2d 412 (1971) and Nalee, Inc. v. Jacobs, 228 Md. 525, 180 A.2d 677 (1962). We find these cases distinguishable from the instant case, however, because little or no direct evidence of negligence was offered in either of them. The only evidence offered by the plaintiff in Blankenship was that, as he and a coworker were carrying a refrigerator up a set of stairs behind the defendant’s house, one of the steps collapsed underneath the coworker’s feet. 261 Md. at 39-40, 273 A.2d at 413. The plaintiff was forced to support the entire weight of the refrigerator from above to prevent it from falling on his coworker, who was caught in the broken step. In doing so, the plaintiff injured his back. 261 Md. at 40, 273 A.2d at 413. Blankenship is distinguishable from the instant case because the plaintiff in Blankenship never sought to offer even a partial explanation of why the step collapsed beneath his coworker’s feet. He only sought to prove res ipsa loquitur’s three basic elements. This Court therefore decided that the directed verdict in favor of the defendant was inappropriate and reversible error. Blankenship, 261 Md. at 42, 273 A.2d at 415.

In the course of its reasoning, the Blankenship Court also acknowledged the following principle which guides our reasoning in the instant case:

*246 “ ‘The justice of the rule permitting proof of negligence by circumstantial evidence is found in the circumstance that the principal evidence of the true cause of the accident is accessible to the defendant, but inaccessible to the victim of the accident. The rule is not applied by the courts except where the facts and the demands of justice make its application essential, depending upon the facts and circumstances in each particular case.’ ”

261 Md. at 41, 273 A.2d at 414 (quoting Potts v. Armour & Co., 183 Md. 483, 488, 39 A.2d 552, 555 (1944)). The Court recognized, however, in reference to the direct evidence standard established in Nezbed, that an offer of some “circumstantial evidence which tends to show the defendant’s negligence” should not as a matter of policy preclude reliance on res ipsa loquitur. Blankenship, 261 Md. at 46, 273 A.2d at 417. See also Nezbed, 202 Md. at 263, 96 A.2d at 245.

The instant case also does not present a situation where “ ‘the principal evidence of the true cause of the accident’ ” was accessible only to the defendant and “ ‘inaccessible to the victim.’ ” Blankenship, 261 Md. at 41, 273 A.2d at 414 (quoting Potts, 183 Md. at 488, 39 A.2d at 555). As stated herein, the plaintiffs expert witness testified to the specific cause of the accident within a reasonable degree of engineering probability. Mr. Moynihan did not merely provide some circumstantial evidence tending to show the defendant’s negligence with regard to contacts 14 and 15 and the misleveling of elevator number two. He purported to offer a complete explanation of the precise cause and how the negligence of Dover’s technician contributed to that cause.

As Chief Judge Wilner observed in his Swann dissent:

“[Swann] marshalled evidence to show the precise cause of the misleveling — the malfunction of the contacts — and to show as well that Dover was negligent in not replacing those contacts prior to the accident. The focus of the case was on whether Dover was remiss in merely cleaning the contacts rather than replacing them.”

*247 Swann, 95 Md.App. at 418, 620 A.2d at 1015 (Wilner, C.J., dissenting). Obviously, therefore, the principal evidence of the apparent cause of the accident was fully available to the plaintiff. Consequently, “ ‘the facts and the demands of justice’ ” do not make the application of res ipsa loquitur essential under the circumstances of this particular case. Blankenship, 261 Md. at 41, 273 A.2d at 414 (quoting Potts, 183 Md. at 488, 39 A.2d at 555).

The other case relied upon by the Court of Special Appeals, Nalee, Inc. v. Jacobs, is equally distinguishable from the factual circumstances of the instant case. In Nalee, the plaintiff was injured in the defendant’s hotel when a nearby bench fell over and struck him on the foot. The only arguably direct evidence offered by the plaintiff was testimony that the bench was not fastened to the floor or the wall. Nalee, 228 Md. at 528-29, 180 A.2d at 678-79.

As in Blankenship, the Nalee Court also recognized that direct evidence of negligence may preclude application of res ipsa loquitur. In the course of its analysis of this issue, the