Murphy v. Montgomery
Elevator Co.
65 Wn. App. 112 (1992)
Instructor’s note:
Footnotes and some citations omitted.

Petrich, Chief Judge.

Margaret Murphy sued Montgomery Elevator Company for injuries she claims resulted when she fell while stepping out of an elevator at Humana Hospital, her place of employment. After a jury verdict for Montgomery Elevator (Montgomery), Murphy appeals, claiming instructional errors. She argues that the trial court erred in not giving the jury her proposed instruction on res ipsa loquitur and in not giving her proposed instruction that Montgomery be held to the highest standard of care, i.e., that of a common carrier, to discover and correct a dangerous condition on an elevator it inspected, maintained, and repaired under contract with Humana Hospital. We affirm.

Murphy contended at trial that while she was stepping out of the elevator on March 30, 1987, the elevator dropped 2 to 4 inches after opening and that this caused her fall. Humana Hospital had a limited service contract with Montgomery to maintain the elevator. Humana did not service the elevators; Montgomery maintained and repaired them.

During the trial, Murphy presented the expert testimony of Joseph Cunningham, a former city elevator inspector. He testified that elevators do not suddenly drop if they have been property maintained and that the likely cause of the misleveling was a failure in the “suicide switch”. Ken Durin, a Montgomery employee, and Carl Burkland, Montgomery’s expert witness, testified that a properly functioning elevator should not mislevel by more than one-half inch.

I
Res Ipsa Loquitur

Contending that the exact cause of the malfunction was indeterminable but was the result of improper service and maintenance, Murphy proposed a res ipsa loquitur instruction. Res ipsa loquitur applies if the following conditions are met:

(1) the accident or occurrence producing the injury is of a kind which ordinarily does not happen in the absence of someone’s negligence, (2) the injuries are caused by an agency or instrumentality within the exclusive control of the defendant, and (3) the injury-causing accident or occurrence is not due to any voluntary action or contribution on the part of the plaintiff.

Horner v. Northern Pac. Beneficial Ass’n Hosps., Inc., 62 Wn. 2d 351, 359, 382 P.2d 518 (1963). Whether the doctrine applies in a given case is a question of law. Zukowsky v. Brown, 79 Wn. 2d 586, 592, 488 P.2d 269 (1971). See also Brown v. Dahl, 41 Wn. App. 565, 580-83, 705 P.2d 781 (1985) (court should give res ipsa loquitur instruction when plaintiff presents substantial evidence of each of its elements, even though defendant presented weighty, competent exculpatory evidence). Once the trial court determines that the doctrine applies, the defendant has the duty to come forward with exculpatory evidence to overcome the inference of negligence. Metropolitan Mortgage & Sec. Co. v. Washington Water Power, 37 Wn. App. 241, 243, 679 P.2d 943 (1984).

The trial court did not err in refusing Murphy’s proposed instruction. Murphy failed to satisfy the second condition of this doctrine, which requires the plaintiff to present evidence connecting the defendant with the negligence. When the plaintiff fails to show that a defendant had exclusive control of the object causing the injury, res ipsa loquitur does not apply. Howell v. Spokane & Inland Empire Blood Bank, 114 Wn. 2d 42, 58, 785 P.2d 815 (1990) (John Doe donated blood, defendant collected it, and hospital transfused it). See also Jackson v. Criminal Justice Training Comm’n, 43 Wn. App. 827, 830-31, 720 P.2d 457 (1986) (not only must defendant have exclusive control, but plaintiff must have corresponding lack of control to avoid the injury); Hughes v. King Cy., 42 Wn. App. 776, 784, 714 P.2d 316 (plaintiff failed to present evidence that County had any control over private drainage system), review denied, 106 Wn. 2d 1006 (1986); Cusick v. Phillippi, 42 Wn. App. 147, 155-56, 709 P.2d 1226 (1985) (absence of exclusive control when investors could have directed earlier sale of apples, and evidence established multiple possible causes of browning).

Murphy contends that Montgomery had exclusive control of the elevator because it was solely responsible for its maintenance and repair and because it had sole access to the elevators. Montgomery, on the other hand, contends that because Humana owned, operated, and supervised Montgomery’s work, Montgomery did not have exclusive control. Under their contract, Montgomery was to service the elevators twice a month, and Humana was to notify Montgomery if other service work or repair needed to be made.

Franklin Simmons, the director of engineering for Humana Hospital at the time of Murphy’s accident, testified that Montgomery had a service contract with Humana, that none of Humana’s employees did any type of preventive maintenance on the elevators, that Humana did no repair work on the elevators, and that Humana did not help Montgomery in making any repairs. He also testified that he would periodically inspect Montgomery’s work, look at the elevator and elevator rooms to insure they were in proper order, and occasionally watch Montgomery service the elevators.

Ken Durin, Montgomery’s service man who worked on Humana’s elevators, testified that he went to Humana twice a month for 2 hours at a time, that he inspected, lubricated, and cleaned the parts, and that he would check the controller, which included the “suicide switch”. He also testified that if a part needed replacement he would go to Humana’s maintenance department for authorization, that Humana had to authorize any additional time or labor that needed to be done and that Montgomery billed Humana for that time and those parts.

Because Humana retained some control over the elevators, and because its contract with Montgomery was only a limited service contract, Montgomery did not have exclusive control of the elevators. Murphy’s argument that Montgomery was the only entity which did any work on the elevators is insufficient under the reasoning of Cusick, which held that the failure of the investors to exercise their discretion did not give Phillippi exclusive control of the apple harvest. Similarly here, the failure of Humana to exercise its discretion did not give Montgomery exclusive control of the elevators.

II
Common Carrier Standard of Care

Murphy also contends that because Montgomery was responsible for the inspection and maintenance of the elevator, the trial court erred in not instructing the jury that Montgomery is held to the standard of care of a common carrier, the same standard owed to a business invitee by the building owner.

* * *

We see no reason to impose the standard of care of a common carrier on a company whose contract with the owner was a limited service contract. The court instructed the jury to consider the circumstances in deciding what a reasonably careful person would have done. This is sufficient. See also (citations omitted from 7th Cir., La., Okla. Tex.). See generally Annot., Liability of Installer or Maintenance Company for Injury Caused by Failure of Automatic Elevator to Level at Floor, 63 A.L.R.3d 996 § 4, at 1004 (1975); 13 C.J.S. Carriers § 2 (1990). But see (citations omitted from Md., Ohio). We find no error.

Judgment affirmed.

Morgan and Seinfeld, JJ., concur.

Class Glossary