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November 30, 1992


Appeal from the Superior Court of the District of Columbia, Civil Division; (Hon. Steffen W. Graae, Trial Judge)

Before Farrell and Wagner, Associate Judges, and Newman, Senior Judge.*

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge: Appellee, Katherine Tuerr, was injured in an elevator accident. She filed a complaint for negligence against appellant, Otis Elevator Company (Otis), which was responsible for maintenance of the elevator, seeking $500,000 in compensatory damages. Mrs. Tuerr's husband, Alfred Tuerr, joined in the action and sought damages in the amount of $200,000 for loss of consortium. The jury returned a verdict for Mrs. Tuerr in the amount of $650,000 and for Mr. Tuerr in the amount of $150,000. *fn1 The trial court denied Otis' Motion for Judgment Notwithstanding the Verdict (N.O.V.) or Alternatively for New Trial. Otis raises four Principal issues on appeal: (1) that the trial court erred in allowing Donald Moynihan, appellee's expert witness on elevator maintenance, to testify; (2) that appellee failed to establish negligence or proximate cause; (3) that the issue of future losses was submitted improperly to the jury without an adequate foundation; and (4) that the trial court abused its discretion in denying Otis' motion for a new trial based on the excessiveness of the verdict and in granting appellee's motion to increase the ad damnum. We affirm.


On August 20, 1986, appellee, Katherine Tuerr, was a passenger on an elevator at the National Geographic Society Building where she worked. The elevator accelerated suddenly before coming to an abrupt, jolting stop as a result of which Mrs. Tuerr's feet left the floor, and she hit her back and knee on the elevator railing. On August 4, 1986, another passenger on that same elevator, Miriam Miller, experienced a sudden acceleration and an abrupt stop. This stop occurred when the safety mechanism engaged, causing the elevator cables to jump out of their grooves. The passenger had to be freed from the elevator by an Otis employee. Otis put the cables back in the grooves and returned the elevator to service. Elevator accidents are required to be reported to the Director of the Department of Consumer and Regulatory Affairs pursuant to 13A DCMR § 113.1. Government officials must investigate before any broken or damaged part of the elevator is removed. Id. § 113.2. The elevator unit is not to be placed back in service until after investigation, satisfactory repairs, and reinspection. Id. § 113.3. Otis did not report the accident of August 4 to the proper authorities.

Appellees relied primarily on the testimony of Donald Moynihan to establish liability. Mr. Moynihan testified that after the accident on August 4, 1986, Otis should have inspected and tested the equipment until it found the problem and that if it had done so, the August 20, 1986 accident could have been prevented. He compared the situation with having the brakes fail on an automobile: until you ascertain and correct the problem, you cannot continue to drive the vehicle safely. On August 4, the safety set and the "ropes jumped the sleeve" and the elevator shut down, which the expert attributed to a violent stop. Mr. Moynihan testified that he found no fault with Otis for this earlier incident; however, in his opinion, the same thing happened again on August 20th, causing the safety to set, followed by a sudden jolt.


Appellant argues that reversal is required because the trial court erred in allowing appellees' witness, Donald Moynihan, to testify as an expert witness. Appellant contends that he did not possess the requisite experience to qualify as an expert in the area of elevator maintenance. We disagree. Whether a witness possesses the requisite qualifications to express an opinion on a particular subject is within the trial court's discretion, and its decision in that regard will only be reversed for an abuse. Dyas v. United States, 376 A.2d 827, 832 (D.C. 1977), cert. denied, 434 U.S. 973, 54 L. Ed. 2d 464, 98 S. Ct. 529 (1977); Waggaman v. Forstmann, 217 A.2d 310, 311 (D.C. 1966). In order to qualify as an expert witness and render an opinion, "'the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.'" Dyas, 376 A.2d at 832 (quoting E. CLEARY, MCCORMICK ON EVIDENCE, § 13 at 29-31 (2d ed. 1972)).

The trial court accepted Moynihan's qualifications to testify as an expert in the field of elevator maintenance, "how elevators work," elevator codes and their interpretation, the standard of care for elevators, and elevator maintenance contracts. The evidence was more than sufficient to support the trial court's determination that the witness was qualified as an expert in the areas for which the court accepted him. The evidence showed that Mr. Moynihan is a self-employed elevator consultant who holds a bachelor of science degree in electrical engineering. He had been an engineer for Otis from 1948 until 1955 where he worked on designs and electrical systems which control elevators. In 1955 he went to work for a smaller elevator company which assembled and installed elevators. In 1961 he started working for the Dover Corporation, which was at the time of trial the second largest elevator company in the United States. While with Dover, he was vice president in charge of engineering and had 100 engineers working under him. He was involved in the redesign of all equipment. Mr. Moynihan designed the first gearless dumb-waiter, according to his testimony. In 1961, he became a member of ANSI Codes, an invitation only organization, which issues a national elevator code which is used in the District of Columbia. As a member, he became a part of the code committee which writes it. His work has included the evaluation of the safety of elevators. At the time of trial, he was involved in examining elevators for code compliance and for a determination of what, if any, changes should be made to them. He had qualified in court as an expert witness between twelve to sixteen times, three times in the District of Columbia. Although he did not engage in actual repairs, he directed them, and he monitored maintenance contracts. This evidence was more than adequate to establish Mr. Moynihan's qualifications as an expert witness in the fields in which he qualified. Accordingly, we find no abuse of discretion in the trial court's decision to accept him as such. See Waggaman, supra, 217 A.2d at 311.


Appellant's second argument for reversal is more substantial, for essentially it is that appellees failed to establish liability. In order to establish negligence, a plaintiff has the burden of proof on the applicable standard of care, that the defendant deviated from that standard, and that there was a causal relation between the deviation and plaintiff's injury. Toy v. District of Columbia, 549 A.2d 1, 6 (D.C. 1988); District of Columbia v. Peters, 527 A.2d 1269, 1273 (D.C. 1987). Specifically, appellant contends that Moynihan's testimony was insufficient to meet appellees' burden in that he testified only about what he would have done under the circumstances, rather than what was required by the accepted standards of the industry. See Bell v. Jones, 523 A.2d 982, 989 (D.C. 1986) (expert's testimony of what he or she would do under similar circumstances insufficient to prove standard of care); see also Toy, 549 A.2d at 7 (where expert testimony required, expert's opinion of what he or she would do insufficient). A plaintiff must present testimony to establish the standard of care and any deviation from it when these subjects are beyond the common knowledge and experience of the average lay person. Toy, 549 A.2d at 6; see Meek v. Shepard, 484 A.2d 579, 581 n.4 (D.C. 1984).

Appellees do not identify in the testimony of their expert witness evidence of the relevant industry standard of care. Rather, they rely upon the duty of one maintaining an elevator to exercise reasonable care for the safety of the passengers. See Otis Elevator Co. v. Robinson, 287 F.2d 62, 65 (5th Cir. 1961). In Robinson, the Fifth Circuit, applying the law of the state of Texas in a negligence action against Otis, found liability where the evidence showed that another person experienced a prior, similar accident in the same elevator, and a similar accident occurred in a second elevator in the building which was maintained by Otis. Id. at 65. After each accident report, an Otis service person failed to discover the problem, and Otis made no repairs. Id. The court found that under Texas law a reasonable person could draw an inference of negligence from the circumstantial evidence of the falling of the elevator and the repeated occurrences of the incidents without Otis effecting repairs. Id. This circumstantial evidence, the court concluded, showed Otis' failure to exercise ordinary care.

Similarly, a Pennsylvania court has held that evidence of the customary practices of the industry is not essential to a finding of negligence in an action for personal injuries arising out of an elevator accident. Dallas v. F.M. Oxford Inc., 381 Pa. Super. 89, 552 A.2d 1109, 1112-13 (Pa. Super. Ct. 1989). In Dallas, the court held that the issue of which safeguards should have been used in maintaining a safe elevator was properly for resolution by the jury. Id. at 1113. The court was persuaded that the evidence was sufficient to allow the jury to infer negligence where the evidence showed that the defendant failed to include a certain safety device on the elevator. Id.

In this jurisdiction we have upheld the submission of the negligence issue to the jury in an elevator case applying the theory of res ipsa loquitur. See Otis Elevator Co. v. Henderson, 514 A.2d ...

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