elevator company but would have pressured it for increased service.
To support these assumptions, plaintiffs have produced all of one witness as evidence. This witness, an alleged expert, has simply given his personal opinion that there was a continuing leveling problem with the elevator, that Hilton should have kept a log book that would have notified it of this problem, and that Hilton should have pressured Westinghouse to remedy the alleged problem. There is, however, no hard evidence or objective standards that might support these conclusions. Opinion evidence such as this, which is conjectural or speculative, is not admissible. Meek v. Shepard, 484 A.2d 579 (D.C. 1984); Sponaugle v. Pre-Term, Inc., 411 A.2d 366 (D.C. 1980).
By contrast, defendant Hilton Hotels Corporation has produced evidence that it maintained a comprehensive service contract with a large and reputable elevator company, that it performed all its obligations under that contract, that it was not aware of any leveling problem with the elevator, that it was concerned with the operation of its elevators, and that the elevator in question had misleveled only once before and that misleveling had been corrected a month prior to the alleged accident. Given the above, it cannot be said that there is a genuine issue of fact for trial. Plaintiffs simply have no colorable claim that Hilton breached a duty to Hafferman by its dealings with Westinghouse. Where the evidence is at best "merely colorable" and "is not significantly probative," summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986).
2) Res Ipsa Loquitur
Plaintiffs remaining argument, to support the contention that there is an issue for trial regarding the breach of duty requirement, is that an inference of negligence arises from the accident under the res ipsa loquitur doctrine. Res ipsa loquitur functions like a rule of evidence. It allows a plaintiff to tell a finder of fact that an injury occurred to the plaintiff in the hope that the jury will conclude that the defendant's negligence must have been responsible for the injury. Note that the doctrine does not require a finding that there was negligence. Even if the res ipsa rule is applied, a jury is free to reject a conclusion that there was negligence. The res ipsa loquitur doctrine's inference of negligence is a rebuttable one.
Res ipsa is not always available to a plaintiff in a negligence action. The doctrine may only be applied in the District of Columbia where the plaintiff establishes that: (1) an event would not ordinarily occur in the absence of negligence; (2) the event was caused by an instrumentality in defendant's exclusive control; and (3) there was no voluntary action or contribution on plaintiff's part. Marshall v. Townsend, 464 A.2d 144, 145 (D.C. 1983). The second element regarding exclusive control is not an issue in the instant case. The third element has been disputed by the parties since Hilton is claiming there was contributory negligence. While there is precedent for the claim that res ipsa is inapplicable in elevator misleveling cases because it is not the malfunction but the plaintiff's subsequent actions that cause the injury, see Bernstein v. Highland Associates of Worcester, Inc., 1 Mass. App. Ct. 132, 294 N.E.2d 576, 578 (1973), it is not clear that such is the law in the District of Columbia.
Furthermore, this third element for application of res ipsa focuses on a particular type of voluntary action or contribution on the part of the plaintiff. To negate the application of res ipsa, the voluntary action by the plaintiff must be "the negligent interference with, intrusion upon, or invasion of control of the instrumentality controlling the injury." Ebanks v. New York City Transit Authority, 118 A.D.2d 363, 504 N.Y.S.2d 640, 642 (1986). In the case at bar, the record is void of evidence that Hafferman had any control over the misleveling of the elevator. Therefore denial of res ipsa on this ground would be inappropriate.
Plaintiffs, however, must still establish the first element for application of res ipsa - - that the accident would not ordinarily occur absent negligence. It is this first element that is the mostly hotly debated and that is the most "slippery" concept to deal with. In Marshall v. Townsend, the court noted that "ordinarily" is the key concept of res ipsa loquitur. Id. A plaintiff must demonstrate that his injury ordinarily does not occur when due care is exercised. Id. As one court has put it:
the principle requires that the instrumentality causing the accident be unlikely to do harm unless the person in control is negligent; or stated another way, if causes other than the defendant's negligence might have produced the accident, plaintiff must exclude those other causes by a preponderance of the evidence, for otherwise it would be sheer speculation to conclude that the cause of the accident was one within defendant's control; or put a third way, plaintiff's proof must at least show that it was more probable than not that the accident was the result of a defendant's negligence.
Ford v. District of Columbia, 190 A.2d 905, 906-07 (D.C. 1963).
In the instant case, plaintiffs have claimed there was a history of problems with the elevator in question. They have also produced evidence that on one occasion, a month before Hafferman's alleged accident, this elevator was repaired for failing to level properly. As just discussed, however, the evidence of a problem elevator is, at best, very flimsy, and a single prior repair for misleveling does not support a theory that an elevator's failure to level properly is ordinarily the result of negligence. Even more damaging to plaintiffs' theory, is the testimony of their expert witness. That witness has stated that leveling problems with elevators do occur from time to time in the absence of negligence - - that they can occur even with good maintenance. Such an admission destroys any res ipsa inference that could be drawn.
It is clear that causes other than negligence may have produced the misleveling. In order to use res ipsa, plaintiffs must be able to establish that such a malfunction would not ordinarily occur in the absence of negligence. Plaintiffs must exclude other possible causes by a preponderance of the evidence. In the case at bar, however, plaintiffs can point to no instance where Hilton failed to inform Westinghouse of a problem, to no instance where Westinghouse did not respond, and to no instance where Westinghouse failed to properly effect repair. All this is in addition to the fact that plaintiffs have not the slightest shred of direct evidence of negligence.
The one service call made for misleveling does not help plaintiffs. Repair was effected at least a month before the alleged accident, and yet in all that time there were no further complaints of misleveling. A defect could have arisen so closely to the occurrence of the accident that defendants would have had no opportunity to discover it. It is thus sheer speculation to make any conclusion as to the cause of this elevator's failure to level properly. Plaintiffs' claim that negligence caused the malfunction is specious. Res ipsa is therefore inapplicable since there has been no showing that negligence was the predominant or the only reasonable explanation for the accident. See Pratt v. Freese's, Inc., 438 A.2d 901, 904 (Me. 1981) (doctrine of res ipsa inapplicable simply because elevator malfunctioned; must be proof accident would not have occurred had the defendants used due care).
C. Proximate Cause
Even if plaintiffs had been able to raise a genuine issue for trial regarding whether there had been a breach of duty, plaintiffs would still have to establish the third and last element for a prima facie case of negligence - - proximate cause. Proximate cause encompasses both the foreseeability of the injury and the requirement that the breach of duty have a direct and substantial causal link to the injury. District of Columbia v. Freeman, 477 A.2d 713, 715-16 (D.C. 1984). Proximate cause is normally a question of fact for the jury but it can be one of law when the available evidence will not support a rational finding of proximate cause. Id.
That is the situation in the case at bar. Even if there had been proof that negligence caused the elevator to mislevel, it is highly questionable that a jury should then be allowed to conclude that such a malfunction was the cause in fact of Hafferman's injury. The elevator's failure to level exactly with the floor only created a condition upon which Hafferman subsequently acted to cause his injury. The condition must have been plainly visible to Hafferman - - it would have been straight out in front of him.
The issue is moot, however, because the lack of evidence and the inapplicability of the res ipsa doctrine, rule out a finding of negligent repair or upkeep causing the misalignment. That in turn rules out finding proximate cause from plaintiffs' other claim of negligence. That other claim is that Hilton had failed to pressure Westinghouse to provide better service in light of an allegedly excessive number of service calls.
As discussed earlier, plaintiffs have failed to create a genuine issue of fact regarding this second allegation of negligence, but even assuming they had raised a genuine issue, such negligence could not be the proximate cause of Hafferman's injury. Having ruled out negligence as the cause for the elevator's misalignment, the fact that Hilton did not pressure Westinghouse for more service is meaningless. Additional repairs could not have prevented a malfunction that was not caused by a failure to repair. Additionally, plaintiffs' second allegation of negligence requires too many leaps in logic. It requires one to assume that Hilton would have recognized a service problem with the elevator had it kept a log book, that Hilton would have been able to obtain more service from Westinghouse by pressuring it, that increased service would have reduced the allegedly excessive number of repair calls, and that reduced repairs would have prevented the misalignment even though all but one of the prior repair calls had no relation to the malfunction at issue here.
It is clear, therefore, that available evidence will not support a finding of proximate cause using either of plaintiffs' claimed breaches of duty. Since plaintiffs have failed to sufficiently establish two of the three requirements for a prima facie case of negligence, summary judgment is appropriate.
Defendant Westinghouse Electric Corporation's renewed motion to dismiss is denied. Defendant Hilton Hotels Corporation's motion for summary judgment is granted. In accordance with this court's order filed August 12, 1986, Westinghouse may file a motion for summary judgment within fifteen days after the date this opinion is filed. An appropriate order accompanies this Memorandum Opinion.
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