Vito v. Sargis & Jones, Ltd.

SALMON, Judge. In this appeal we are called upon to analyze the doctrine of res ipsa loquitur. Three questions are presented: 1. Did plaintiff/appellant [Mary Vito] waive reliance on the doctrine of res ipsa loquitur by attempting to establish specific acts of negligence on the part of defendants Cogan Kibler, Inc. and Sargis & Jones Ltd.? ⁴¹³ 2.

Did the trial court err in granting Cogan Kibler, Inc.’s motion for judgment? 3. Did the trial court err in granting the motion for judgment of Sargis & Jones, Ltd.? FACTS 1 Sargis & Jones, Inc. (Sargis & Jones) is a general contractor. It was hired to renovate certain bathrooms and storage spaces at the USA Today building (“the Building”) located in Silver Spring, Maryland.

Michael Clough, project manager, and Ramone Estevan, project superintendent, were both employed by Sargis & Jones to supervise the renovation of the Building. Sargis & Jones subcontracted out all of the work to be done. Its function was to schedule and coordinate the work of the subcontractors. Numerous subcontractors were hired for the project.

Sargis & Jones hired Cogan Kibler, Inc. (Cogan Kibler), a painting subcontractor, to paint portions of the Building. John Dray, an experienced painter, was an employee of Cogan Kibler. Renovation work commenced on the Building sometime in April 1990. Sargis & Jones’s project supervisor, Michael Clough, scheduled Cogan Kibler to paint the Building’s interi- or walls on May 11, 1990.

Mr. Dray was told by his supervisor, Dave Cogan, to go to the Building and apply Duron stain killer paint primer (hereafter “paint primer”) to one of the walls. Mr. Dray arrived at the Building sometime before noon. He poured the paint primer into a tray and, using a roller, began to apply it to a wall. Mr. Dray, the only employee of Cogan Kibler at the Building on May 11, 1990, painted for 20 to 30 minutes.

The area where Mr. Dray was painting was partially separated by a heavy, translucent plastic barrier from the area where USA Today employees worked. A large gap existed, ⁴¹⁴ however, in the barrier. The record does not reveal exactly how big the gap was or whether any doors or windows were open in the project area or elsewhere in the building. Moreover, the record does not show whether Mr. Dray painted near any air conditioning or ventilation ducts, nor was it shown whether employees of other subcontractors were present when Mr. Dray applied the paint primer.

On the morning of May 11, Mary Vito (an asthmatic) was working in a large, open room adjacent to the project area where Mr. Dray was painting. This open room contained approximately seventy work stations, one of which was Ms. Vito’s. During most of the morning of May 11, she uneventfully sat at her work station and performed her duties as a USA Today customer service representative. Sometime before noon on May 11, while Ms. Vito still sat at her work station, she detected an unusual odor, which she did not otherwise describe.

Simultaneously, she felt a burning sensation in her throat, and she then “passed out.” About the same time, co-employees of Ms. Vito.also complained “that their eyes were burningf,] ... their throats were hurting and they weren’t feeling well.” Because of these problems, a supervisor instructed USA Today employees to evacuate the building. Ms. Vito and approximately six other employees were then transported by ambulance to Holy Cross Hospital. The other employees were treated and released shortly after arrival, but Ms. Vito remained in the hospital for several hours. About the same time as the room adjacent to the project area was being evacuated, Ramone Estevan, the Sargis & Jones on-site project superintendent, instructed Mr. Dray to stop painting because “somebody had complained about the smell.” Mr. Dray immediately stopped his work and, about fifty minutes later, left the Building.

Ms. Vito called two medical doctors as witnesses. Their testimony, if believed by the jury, established that Ms. Vito ⁴¹⁵ suffered permanent lung damage as a result of inhaling the fumes from the paint primer on May 11,1990. 2 Ms. Vito introduced into evidence a label from a can of the paint primer. The can was similar to the one used by Mr. Dray. The warning label on the can read: To avoid breathing vapors or spray mist, open windows and doors or use other means to ensure fresh air entry during application and drying.

If you experience eye watering, headaches or dizziness, increase fresh air or wear respiratory protection ... or leave the area. Close container after each use. Avoid contact with skin. FIRST AID: If swallowed, do not induce vomiting.

Call physician immediately. Use With Adequate Ventilation. NOTICE: Reports have associated repeated and prolonged occupational over-exposure to solvents with permanent brain and nervous system damage. Intentional misuse by deliberately concentrating and inhaling the contents may be harmful or fatal.

(Emphasis in original.) Counsel for Ms. Vito read to the jury excerpts from a deposition of Mr. Clough, Sargis & Jones’s project manager. He was questioned about what safety procedures were utilized when potentially toxic (poisonous) substances were in use. Mr. Clough asserted that he was unaware of anybody who might be sensitive to any product used at any project where Sargis & Jones was the general contractor. He acknowledged, however, that Sargis & Jones did not require its employees to investigate whether any potentially sensitive person would be present in the vicinity of potentially injurious substances.

More specifically, Mr. Clough admitted that none of Sargis & Jones’s employees determined, on the day in ⁴¹⁶ question or at any other time, whether anyone who worked at USA might be harmed by the application of paint or paint primer. He admitted that Sargis & Jones’s personnel occasionally informed building users in the area about the type of work being done—for example, he acknowledged that if he knew that a pregnant woman was on the premises, and if he thought that a product that was being used might be injurious to her, he, or another employee, would warn her. At the close of Ms. Vito’s case, her counsel admitted that she had not produced direct evidence of negligence on the part of either defendant. Ms. Vito’s counsel contended, however, based on the theory of res ipsa loquitur, that the issue of negligence should be submitted to the jury.

Sargis & Jones and Cogan Kibler made motions for judgment in their favor on the ground that Ms. Vito’s evidence was insufficient to take the case to the jury on the theory of res ipsa loquitur because she had failed to prove that either defendant had exclusive control of the instrumentality that caused plaintiff harm. Counsel for Sargis & Jones also contended that Ms. Vito had waived her right to rely on the res ipsa loquitur doctrine because she had attempted to prove direct negligence. The trial court took the motions under advisement and instructed defense counsel to proceed. The defense called two witnesses, but before either defendant had concluded their case, the trial judge ruled on defendants’ motions for judgment.

The court opined that Ms. Vito had not waived her right to rely on res ipsa loquitur by going “too far in [her] proof of the explanation of the cause of the injury.” Moreover, the court accepted as true Ms. Vito’s proof that she was injured by the fumes from the paint primer. The trial judge ruled, however, that Ms. Vito had failed to establish exclusive control over the condition or instrumentality that caused the harm. After defendants’ motions for judgment were granted, this timely appeal followed. Additional facts will be presented to answer the questions presented. ⁴¹⁷ STANDARD OF REVIEW When reviewing the grant of a motion for judgment, we examine the evidence and all inferences reasonably deducible therefrom in the light most favorable to the non-moving party.

Impala Platinum Ltd. v. Impala Sales (U.S.A.), Inc., 283 Md. 296, 327-28 , 389 A.2d 887 (1978); Campbell v. Montgomery County Bd. of Educ., 73 Md.App. 54, 63, 66 , 533 A.2d 9 (1987). Ordinarily, we will not affirm a judgment for a reason not relied upon by the trial court. Warner v. German, 100 Md.App. 512, 517 , 642 A.2d 239 (1994) (quoting Cheney v. Bell Nat. Life Ins.

Co., 315 Md. 761, 764 , 556 A.2d 1135 (1989)). See also Geisz v. Greater Baltimore Medical Center, 313 Md. 301, 314, n. 5 , 545 A.2d 658 (1988). The trial court, when ruling on a motion for judgment, should make the initial determination of whether the inference of negligence is permissible, i.e., more probable than not. If the court decides that this inference is permissible, it should then submit the issue to the jury to determine finally whether the inference is more probable than not.

Short v. Wells, 249 Md. 491, 495-96 , 240 A.2d 224 (1968). If, as here, the lower court decides that the inference is impermissible, an appellate court will review the court’s decision and decide whether it was legally correct. Res Ipsa Loquitur In a negligence action, plaintiff, of course, has the burden of proving defendant’s negligence. Harris v. Otis Elevator Co., 92 Md.App. 49, 51 , 606 A.2d 305 (1992).

The burden of proof requires plaintiff to produce evidence that will permit the trier of fact to conclude that it is “more likely than not” that defendant’s negligence caused plaintiffs injuries. C. & P. Tel. Co. v. Hicks, 25 Md.App. 503, 526 , 337 A.2d 744 , cert. denied, 275 Md. 750 (1975). The doctrine of res ipsa loquitur allows a plaintiff “the opportunity to establish a prima facie case ‘when he [or she] could not otherwise satisfy the traditional requirements for proof of negligence.’ ” Dover Elevator Co. v. Swann, 334 Md. 231, 236 , 638 A.2d 762 (1994) (quoting ⁴¹⁸ Pahanish v. Western Trails, Inc., 69 Md.App. 342, 359 , 517 A.2d 1122 (1986)).

The doctrine applies where “direct evidence of negligence is either lacking or solely in the hands of the defendant.” Dover Elevator, swpra, 334 Md. at 237 , 638 A.2d 762 . The doctrine does not change the burden of proof, but it does allow the question of negligence to reach the jury by providing a permissible inference of negligence. Hicks, supra, 25 Md.App. at 526-27 , 337 A.2d 744 . See also Dover Elevator, supra, 334 Md. at 236 , 638 A.2d 762 (stating that “[t]he jury is ... permitted, but not compelled, to infer a defendant’s negligence without the aid of any direct evidence”).

When plaintiff relies on circumstantial evidence to establish negligence, the inferences deducible from the facts presented “must warrant a finding that the defendant’s conduct was such that a jury would be entitled to characterize it as negligent.” Hicks, supra, 25 Md.App. at 524 , 337 A.2d 744 . “[T]he doctrine is applicable only where the ‘foundation fact’ establishing the cause of the injury (or the thing which caused the injury) has been established.” Stuart M. Speiser, The Negligence Case: Res Ipsa Loquitur § 2:9, at 48 (1972). If plaintiff provides no explanation of the cause of his or her injury or merely provides several equally reasonable inferences, then the attempt to rely on res ipsa loquitur will fail. See, e.g., Benedick v. Potts, 88 Md. 52, 54, 40 A. 1067 (1898) (holding that res ipsa loquitur was not applicable because the plaintiff could not present a single circumstance showing how or by what agency his injury occurred). Once this foundational fact is shown, in order for the doctrine of res ipsa loquitur to be applicable, plaintiff must prove, by a preponderance of the evidence: 1.

A casualty of a sort that usually does not occur in the absence of negligence on the part of someone, 2. caused by an instrumentality or condition within the defendant’s exclusive control, ⁴¹⁹ 3. under circumstances indicating that the casualty did not result from the act or omission of the plaintiff. Leikach v. Royal Crown Bottling Co., 261 Md. 541, 547-48 , 276 A.2d 81 (1971); Swann v. Prudential Ins., 95 Md.App. 365, 389 , 620 A.2d 989 (1993); rev’d other grounds, sub nom, Dover Elevator Co. v. Swann, supra.; Hicks, supra, 25 Md.App. at 516 , 337 A.2d 744 ; Beach v. Woodward and Lothrop, Inc., 18 Md.App. 645, 649 , 308 A.2d 439 . I. DID MS. VITO WAIVE THE RIGHT TO RELY ON THE RES IPSA LOQUITUR DOCTRINE?

Maryland cases have held that a plaintiff may not rely on the doctrine of res ipsa loquitur if he or she attempts to establish the specific grounds of defendant’s negligence. Dover Elevator, supra, 334 Md. at 237 , 638 A.2d 762 ; Peterson v. Underwood, 258 Md. 9, 20 , 264 A.2d 851 (1970); Nalee, Inc. v. Jacobs, 228 Md. 525, 532 , 180 A.2d 677 (1962); Smith v. Bernfeld, 226 Md. 400, 409 , 174 A.2d 53 (1961). This principle is derived from Hickory Transfer Co. v. Nezbed, 202 Md. 253, 263 , 96 A.2d 241 (1953), in which the Court stated: 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. The question arises as to the exact meaning of the phrase “attempted to establish the specific grounds of defendant’s negligence.” Does it mean, for instance, that a plaintiff waives reliance on the doctrine of res ipsa loquitur if plaintiff merely calls a defendant as an adverse witness and tries unsuccessfully to get the defendant to admit some lack of due care? We hold that the answer to this question is “no.” The majority rule in this country is: [A]n unsuccessful attempt to prove specific negligence on the defendant’s part, or the introduction of' evidence of ⁴²⁰ specific negligence not clearly establishing the precise cause of injury, will not deprive the plaintiff of the benefits otherwise available under the doctrine [of res ipsa loquitur]. Annotation, Evidence of Specific Negligence as Affecting Reliance on Res Ipsa Loquitur, 38 A.L.R.2d 791 , 793 (1954).

As shown by Blankenship v. Wagner, 261 Md. 37 , 273 A.2d 412 (1971), Maryland follows this majority rule. In Blankenship, supra, the Court of Appeals undertook to explain the waiver rule by discussing Smith v. Bernfeld, and Nalee v. Jacobs, both supra. Judge Finan, for the Court, stated: Early in this Court’s consideration of res ipsa loquitur we held that when a plaintiff relies on the doctrine and its attendant inferences, it must not appear from the plaintiffs own evidence that something other than the defendant’s negligence caused the accident. This concept was logically extended so that “where all the facts and circumstances are shown by testimony,” whether it was introduced by plaintiff or defendant, and that evidence shows that the injury might have been caused by something other than the defendant’s negligence, res ipsa loquitur would not apply, because there would no longer be any need for relying on an inference.

In Smith v. Bemfeld, Chief Judge Bruñe, speaking for the Court, stated that the attempt by the plaintiffs in that case to prove specific grounds of negligence precluded their relying on the doctrine of res ipsa loquitur. However, in Nalee, Inc. v. Jacobs, an opinion also written by Chief Judge Bruñe only 7 months after Smith v. Bernfeld, he explained that the attempts by the plaintiffs in Smith to establish specific grounds of negligence had precluded their relying on res ipsa loquitur only because they had proved all of the facts regarding the accident and were unable to show that the defendant’s negligence caused the injury. He specifically disavowed any intention in Smith of extending the rule of the earlier cases.... ⁴²¹ 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. Id., 261 Md. at 45-46, 273 A.2d 412 (citations omitted) (emphasis added in part). In Dover Elevator, supra, the plaintiff produced an expert who testified that he inspected the elevator that had misleveled and caused plaintiffs injuries. Additionally, the expert reviewed all of the maintenance records pertaining to the elevator. 3 The expert opined that: 1) the elevator misleveled because defendant Dover Elevator negligently filed and cleaned the number 14 and 15 contacts, rather than replacing them as it should have, resulting in faulty current and misleveling; 2) defendant “was negligent by failing to spend adequate time servicing the elevators;” 3) Dover Elevator’s “maintenance records were deficient;” and 4) defendant “failed to properly stock replacement parts in the elevator’s machine rooms.” Dover Elevator, supra, 334 Md. at 235 , 638 A.2d 762 .

The trial court in Dover Elevator refused to give a res ipsa loquitur instruction, and the jury found in favor of Dover Elevator and all other defendants. This Court reversed as to the elevator company and held, inter alia, that plaintiff has not waived application of the doctrine by “proving too much ⁴²² and too little.” Swann, supra, 95 Md.App. at 418 , 620 A.2d 989 . Chief Judge Wilner filed a dissent in Swann and said, in pertinent part: [Although I quite agree that, under current Maryland law, the mere offering of evidence of specific negligence does not, of itself, preclude a jury, upon a proper res ipsa loquitur instruction, from inferring negligent conduct, it seems to me that the plaintiff did prove (or attempt to prove) too much for the doctrine to apply in this case. He 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. When the plaintiffs case is so built around a specific, articulated cause of the event and endeavors to show that that cause arose solely because of specific negligence on the defendant’s part, I do not believe that the plaintiff, if he fails to persuade the jury that his position has merit, can then avail himself of an inference that the event arose from some other cause, also engendered by the defendant’s negligence. Swann, 95 Md.App. at 418-19 , 620 A.2d 989 . The Court of Appeals adopted the reasoning of Judge Wilner’s dissent, Dover Elevator, supra, 334 Md. at 246-47 , 638 A.2d 762 , and reversed.

It pointed out that plaintiffs expert examined the elevator and gave an opinion as to what caused the accident. Under such circumstances, it was obvious that 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. Id. at 247, 638 A.2d 762 (citations omitted).

A second, yet related, reason for reversal was that plaintiffs expert “purported to offer an expert opinion regarding the actual and ⁴²³ specific negligence [on defendant’s] part.... ” Id. at 249 , 638 A.2d 762 . Thus, the case was not one in which the jury was given certain facts and asked to draw certain inferences. Rather, the jury was asked to draw no inferences but to accept as true the testimony of the expert “concerning why negligence must have been the cause of the accident.” Id. The Dover Elevator Court concluded: Thus Swann ventured beyond the mere offering of some evidence of negligence as asserted by the Court of Special Appeals.

See Swann, 95 Md.App. at 395-96 [ 620 A.2d 989 ]. We therefore conclude that the reasoning of Hickory Transfer Co. v. Nezbed is dispositive of the issue, and Swann sought to prove “too much and too little.” 202 Md. at 263 [ 96 A.2d 241 ], Swann sought to prove too much because his expert’s testimony endeavored to establish the specific causes of elevator number two’s misleveling, thereby precluding his reliance on res ipsa loquitur. On the other hand, he apparently proved too little because Moynihan’s [plaintiffs expert] testimony failed to persuade the jury, as evidenced by the verdict in favor of all the defendants. Id. at 253 , 638 A.2d 762 .

In this appeal, Sargis & Jones argues that the trial judge was wrong when he ruled that Ms. Vito had not waived her right to rely on res ipsa loquitur, 4 Its entire argument in this regard is as follows: [I]n the instant case the Plaintiff attempted to introduce evidence through deposition testimony of John Dray and Michael Clough, as well as the label of the Duron Stain Killer, to attempt to show some negligence. Counsel for Vito conceded that such showing had been appropriately made, which is clear from the record and was accepted by the Trial Court. Having made that attempt, Vito could not under the law attempt to then raise res ipsa loquitur in an effort to get her case to the jury. ⁴²⁴ It is true that the paint primer label warned that users must have adequate ventilation and that counsel for Ms. Vito questioned Mr. Dray and Mr. Clough regarding that subject. Mr. Dray’s and Mr. Clough’s answers, if believed, however, gave no meaningful information as to how the premises were ventilated.

The witnesses claimed not to know if there was any outside ventilation in the room where paint primer was applied, and Mr. Dray could not say whether he painted near air conditioning or ventilation ducts. Mr. Clough was asked about what warnings his company gave, but his answers, if believed, did not show that warnings should have been given in this case. In order to waive reliance on res ipsa loquitur, a plaintiff must present evidence that, if believed, proves the specific negligent act(s) on plaintiffs part. Dover Elevator, supra, 334 Md. at 246-47 , 638 A.2d 762 .

Here, plaintiff put on no evidence that, if believed, showed a specific act of negligence on the part of either defendant. Therefore, appellant did not waive reliance on res ipsa loquitur.