Holzhauer v. Saks & Co.

CHASANOW, Judge. The United States District Court for the District of Maryland has certified the following three questions to this Court pursuant to the Maryland Uniform Certification of Questions of Law Act, Maryland Code (1974,1995 Repl.Vol., 1996 Supp.), Courts & Judicial Proceedings Article, §§ 12-601 through 12-613, and Maryland Rule 8-305. 1. Do Appellant’s allegations with respect to negligence amount to a waiver of res ipsa loquitur, as in Dover Elevator Co. v. Swann, 334 Md. 231 , 638 A.2d 762 (1994)? 2. If not, does the doctrine of res ipsa loquitur apply under the facts thus far alleged in the instant case? 3.

If the doctrine of res ipsa loquitur does apply, is there any reason, including the views expressed by the Court of Appeals in Dover, why the facts of this case require a different approach than that in Beach v. Woodward & Lothrop, Inc., 18 Md.App. 645 , 308 A.2d 439 (1973)(Where the escalator “stop[ped] and start[ed] up with a jerk”)? We answer the first two questions in the negative. Our decision regarding question number two renders question number three moot. ³³¹ The facts of the ease are not disputed. On February 24, 1994, Appellant, Eugene Holzhauer, was shopping in the Saks Fifth Avenue department store in Owings Mills Mall.

Appellant injured his right shoulder when the escalator upon which he was riding, with his hand on the railing, came to a sudden stop, causing him to stumble down ten to twelve steps in a twisting motion. Appellant filed suit in the United States District Court for the District of Maryland 1 against Saks & Co., the owner of the escalator, and Montgomery Elevator Company, the organization hired to service and maintain the escalator (collectively “Appellees”). Appellant alleged that Appellees were negligent in: “a. [M]aintain[ing] as a part of such escalator and the operating mechanism thereof, old, loose, worn, frayed, and antiquated parts, apparatus and equipment; b. [F]ail[ing] to install in such escalator as a part of the operating mechanism thereof, a proper device to prevent said escalator from suddenly stopping when in use c. [P]ermitt[ing] such escalator and the working parts thereof to be and remain in a condition of disrepair for an unreasonable length of time; d. [F]ail[ing] to inspect such escalator in a proper manner and at proper intervals; e. [F]ail[ing] to warn plaintiff of the dangers connected with the escalator and to provide to plaintiff any protection from such dangers.” Appellant alleged, additionally, that Montgomery Elevator Company “negligently installed and maintained the escalator and failed to properly maintain, inspect and repair the escalator.” ³³² The following additional information was revealed during discovery. The parties do not know what caused the escalator to stop on February 24,1994.

The escalator had been inspected by the Maryland Department of Licensing and Regulation, Division of Labor and Industry Safety Inspection Unit in June of 1993. The escalator had not malfunctioned between the time of the inspection and the time of Appellant’s injury, and it has not malfunctioned since Appellant’s injury. On the day of the incident, the escalator remained stopped until a store employee restarted it with a key, at which time the escalator immediately began to run properly. Upon restarting, the escalator made no unusual movements or noises, and it did not require any repairs.

Montgomery Elevator Company, in fact, was not informed of the events that occurred on February 24 until this suit was instituted. The escalator was turned on and off daily, using a key, at the opening and closing of business by Saks & Co.’s Building Engineer or by a member of its Security Department. Any individual can also cause the escalator to stop by pushing one of the emergency stop buttons located at the top and bottom of the escalator, respectively. Once stopped, the escalator will not run again until it is started with a key.

Appellant has offered no additional evidence to support the allegations of negligence in. his complaint, and it appears that he does not intend to offer expert testimony in the field of escalator maintenance, operations, or repair. The only expert witness listed on Appellant’s Designation of Expert Witnesses is Dr. Steven Friedman, a medical doctor. Furthermore, in his Response to Saks & Go’s Motion for Summary Judgment, Appellant states that “[he] is not offering any direct evidence or expert testimony, other than evidence of the event itself. He is not attempting to prove how or why the escalator stopped suddenly, only that it did.” Appellees filed Motions for Summary Judgment at the close of discovery, arguing that Appellant failed to produce evidence sufficient to sustain his burden of proof at trial.

The Honorable Frank A. Kaufman initially granted the Appellees’ Mo ³³³ tions for Summary Judgment in a one sentence memorandum stating: “For reasons which this Court will shortly set forth in a more detailed document, to be filed in this case, this Court will enter summary judgment for defendants.” When Judge Kaufman began to write the opinion in support of his ruling, however, he concluded that he could not continue without the answers to the three questions certified to this Court. Judge Kaufman has denied Appellees’ Motions for Summary Judgment, and he will reconsider them once this Court has announced its decision. The United States District Court seems to suggest by its phrasing of question number one that Dover Elevator Co. v. Swann, 334 Md. 231 , 638 A.2d 762 (1994), stands for the proposition that the pleading of specific acts of negligence will preclude a plaintiff from relying on the doctrine of res ipsa loquitur. This is not so.

Dover did not concern the mere pleading of acts of negligence; rather it dealt with, a plaintiffs attempt to establish specific grounds of negligence at trial. We held, in that case, that one of the reasons why the plaintiff was prohibited from relying on res ipsa was because he proffered direct evidence of negligence at trial. Dover, 334 Md. at 237 , 638 A.2d at 765 (“[Njumerous Maryland cases have explained that a plaintiffs ‘attempt to establish specific grounds of alleged negligence precludes recourse to the doctrine of res ipsa loquitur.’ ”) (quoting Smith v. Bernfeld, 226 Md. 400, 409 , 174 A.2d 53, 57 (1961)). In Dover, David Swann was injured when he entered an elevator car, the floor of which was approximately one foot below the floor outside of the elevator. 334 Md. at 234 , 638 A.2d at 764 .

He sued three defendants, one of which was Dover, the company that manufactured, installed, and maintained the elevator at issue. Id. Swann alleged in his Complaint that the defendants negligently designed, manufactured, installed, and maintained the elevator. Dover, 334 Md. at 234-35 , 638 A.2d at 764 .

These pleadings, however, were not the reason that Swann was precluded from relying on res ipsa. Rather than ask the jury to draw an inference of defendant’s ³³⁴ negligence from the mere fact that the elevator misleveled, Swann had an engineer/elevator consultant testify at trial that the elevator misleveled because the elevator’s contacts were “burned” and that Dover was negligent in, inter alia, cleaning rather than replacing the burned contacts. Dover, 334 Md. at 244 , 638 A.2d at 769 . We held that, under the circumstances, “the doctrine of res ipsa loquitur was inapplicable to the evidence before the jury----” Dover, 334 Md. at 262 , 638 A.2d at 777 .

The purpose of res ipsa, we explained, is to afford a plaintiff the opportunity to present a prima facie case when direct evidence of the cause of an accident is not available or is available solely to the defendant. Dover, 334 Md. at 237 , 638 A.2d at 765 . Direct evidence of the specific cause of his injuries was available to Swann, however, and he proffered that direct evidence to the jury in the form of an expert opinion. Thus, one of the reasons we held res ipsa to be inapplicable was because the expert “purport[ed] to furnish a sufficiently complete explanation of the specific causes of [the elevator’s] misleveling, which ... preclude[d] plaintiff’s reliance on res ipsa loquitur” Dover, 334 Md. at 239 , 638 A.2d at 766 .

Unlike the petitioner in Dover, Appellant in the present case has not had the chance to proffer direct evidence as to the specific cause of his injuries. Thus far, he has only pleaded specific acts of negligence. This Court discussed the impact that pleading specific acts of negligence has on a claim of res ipsa loquitur in Joffre v. Canada Dry, Inc., 222 Md. 1 , 158 A.2d 631 (1960). In that case, a woman in a delicatessen was cut in the leg by a piece of glass when a Canada Dry soda bottle shattered.

Joffre, 222 Md. at 3 , 158 A.2d at 632 . Appellant sued the Canada Dry bottler and the delicatessen. Id. Appellant alleged that the bottler was negligent in “placing on the market ... a product designed for purchase in the original package without making that package safe against reasonably-to-be-anticipated variations in temperature and hazards of handling, and that the bottle was defective or the pressure within it excessive.” Id.

She alleged that the ³³⁵ delicatessen “was negligent in failing to so locate and guard the bottle as to prevent injury to customers, knowing it might explode.” Id. The judge directed a verdict for both defendants at the close of the plaintiffs evidence, and appellant argued on appeal that summary judgment was improper and that she was entitled to submit her claim to the jury under the theory of res ipsa loquitur. Id. The delicatessen argued that appellant was precluded from relying on that theory because she had pleaded specific acts of negligence.

Joffre, 222 Md. at 3-4 , 158 A.2d at 632 . This Court stated that the delicatessen’s argument had previously been rejected in Maryland. Id. (citing State v. Prince George’s County, 207 Md. 91, 103-04 , 113 A.2d 397, 403 (1955)).

We explained that “ ‘[t]he doctrine res ipsa loquitur is not a rule of pleading. It relates to burden of proof and sufficiency of evidence.’ ” Joffre, 222 Md. at 6 , 158 A.2d at 634 (quoting Bohlen v. Glenn L. Martin Co., 193 Md. 454, 461 , 67 A.2d 251, 254 (1949)); see also Richard J. Gilbert and Paul T. Gilbert, Maryland Tort Law Handbook, at 158 n. 12 (2d ed. 1992)(“[T]he doctrine of res ipsa loquitur is not a rule of pleading; having pleaded specific acts of negligence does not prevent the plaintiff from relying on res ipsa.” (Citation omitted)). In other words, whether a party will be precluded from relying on the doctrine of res ipsa loquitur turns upon the evidence produced by the party and whether that evidence satisfies the three essential components of res ipsa loquitur; whether specific allegations of negligence have been pleaded is of no moment. We answer the first certified question in the negative.

Appellant cannot satisfy the three essential components of res ipsa loquitur, however, and, for that reason, he may not rely on the doctrine in the present case. Three elements must be proven in order to create an inference of negligence on the part of a defendant: (1) a casualty of a kind that does not ordinarily occur absent negligence, (2) that was caused by an instrumentality exclusively in the defendant’s ³³⁶ control, and (3) that was not caused by an act or omission of the plaintiff. Dover, 334 Md. at 236-37 , 638 A.2d at 765 . Appellant cannot satisfy the first two criteria.

In order to rely on res ipsa loquitur, Appellant must first prove that the accident would not have occurred in the absence of Appellees’ negligence. “[T]he doctrine of res ipsa loquitur is applicable only when the facts and surrounding circumstances tend to show that the injury was the result of some condition or act which ordinarily does not happen if those who have the control or management thereof exercise proper care. It does not apply where it can be said from ordinary experience that the accident might have happened without the fault of the defendant.” (Citation omitted). Greeley v. Baltimore Transit Co., 180 Md. 10, 12-13 , 22 A.2d 460, 461 (1941). Appellant cannot satisfy this requirement because the evidence and inferences fairly deducible from the evidence indicate that, in addition to the possibility that Appellees were negligent, there is an equally likely explanation for the escalator’s abrupt stop.

For safety reasons, the escalator in question was equipped with two emergency stop buttons, located at the top and bottom of the escalator, respectively. When either button is pushed, if the escalator is functioning as intended, the escalator