Gilbert v. Korvette's Inc.

Concurring Opinion by

Mr. Chief Justice Jones:

I would affirm the order of the Superior Court for the reason that the trial court erred in applying the doctrine of res ipsa loquitur to Otis Elevator. The majority, however, has discarded the cognate doctrines recognized in this Commonwealth of res ipsa loquitur and exclusive control without offering any compelling reason for doing so. Additionally, the majority’s resolution of the case is not responsive to the only question properly before the Court, i.e., whether a company which manufactures and services an escalator may be held liable under the theory of res ipsa loquitur to a plaintiff who is a passenger on the escalator in the store of the owner-operator. 1 Furthermore, such a d/rastio departure from long-standing rules of law should only come about following oral argument and the submission of briefs on the advisability of such action. Finally, a change in the rules of circumstantial evidence which were developed to aid plaintiffs in tort cases should not be effected in the context of a case which at this stage involves a dispute between joint defendants whose rights and duties inter se are defined by contract.

*620 Contrary to the assertions of the majority, I believe that the Pennsylvania doctrines of res ipsa loquitur and exclusive control are based on appropriate evidentiary concerns and the distinctions between the two are related to the functional question of the probative value of the circumstantial evidence under the conditions in which the application of each doctrine is appropriate. In order for the doctrine of res ipsa loquitur to become applicable in Pennsylvania three conditions must co-exist: (1) the defendant must owe to the plaintiff a duty of the highest degree of care; (2) the instrumentality which caused the accident must be within the exclusive control of the defendant; and (3) the occurrence must be something which ordinarily would not happen if the defendant had exercised the high degree of care which the law imposed upon him. See generally 2 G. Henry, Pennsylvania Evidence §675 (1953). The effect of the application of this doctrine is to create a rebuttable presumption of liability on the defendant and to shift the burden of proof to the defendant to establish that the accident occurred notwithstanding his exercise of due care. Norris v. Philadelphia Electric Co., 334 Pa. 161 , 5 A.2d 114 (1939).

The operation of the doctrine of exclusive control depends on the existence of the following elements: (1) the instrumentality which caused the accident must have been under the exclusive control of, or made or manufactured by the defendant; and (2) the accident or injury is one which would ordinarily not happen if the defendant had exercised due care, or had made or manufactured the article with due care; and (3) the evidence of the cause of the injury or accident is not equally available to both parties, but is exclusively accessible to and within the possession of the defendant; and (4) the likelihood of harm to plaintiff or one of his class could reasonably have been foreseen and prevented by the exercise of due care; and (5) the *621 general principles of negligence have not heretofore been applied to such facts. 2 Izzi v. Philadelphia Transportation Co., 412 Pa. 559 , 195 A.2d 784 (1963). The procedural effect of this doctrine is to raise an inference of negligence and to shift to the defendant the burden of going forward with the evidence, thus taking all such cases to the jury. Aside from the fact that the doctrine of exclusive control is not limited in application to those cases in which the defendant owes a duty of the highest degree of care, the practical distinction between the two doctrines applied in Pennsylvania is that res ipsa loquitur gives rise to a factual presumption of negligence from the mere occurrence of an accident, whereas the exclusive control rule gives rise to an inference of negligence, not from the accident itself, but from the circumstances under which the injury occurred. Bee Kotal v. Goldberg, 375 Pa. 397 , 100 A.2d 630 (1953). The distinctions which have given rise to two separate doctrines in Pennsylvania developed not as a result of confusion by the courts, but from the recognition that the probative force of the circumstantial evidence is stronger in cases involving common carriers where the issue is slight negligence than in *622 cases where ordinary negligence is the controlling substantive standard.

As previously stated, the first prerequisite for the application of res ipsa loquitur in this Commonwealth is that the defendant owe the duty of the highest degree of care. As this Court noted in Ambrose v. Western Maryland Ry. Co., 368 Pa. 1, 11 , 81 A.2d 895, 900 (1951): “The rule of res ipsa loquitur has been limited in its application by the courts of Pennsylvania to cases involving injury to passengers through transportation operations of common carriers or to patrons of utilities dispensing a service which, if not properly managed and controlled, may readily prove dangerous,” citing from Sierocinski v. E. I. DuPont de Nemours & Co., 118 F.2d 531, 535 (3d Cir. 1941). For purposes of our res ipsa loquitur rule, escalators have been held to be common carriers. Petrie v. Kaufman & Baer Co., 291 Pa. 211 , 139 A. 878 (1927). See also McKnight v. S. S. Kresge Co., 285 Pa. 489 , 132 A. 575 (1926) (elevators held to be common carriers). The impact of the holdings that elevators and escalators were common carriers is that the owners and operators thereof are to be held to a duty of the highest degree of care and that the doctrine of res ipsa loquitur may be applied against them.

At no time, however, has this Court, or any court to my knowledge, held that the conduct of a manufacturer or service contractor of an instrumentality which is a common carrier is governed by the standard of the highest degree of care. I readily recognize on the authority of Evans v. Otis Elevator Co., 403 Pa. 13 , 168 A.2d 573 (1961) that Otis Elevator Company owed a tort duty to the plaintiff in this case. Similarly, however, on the same authority it is clear that the duty owed by a service contractor to third parties is uniformly one of ordinary care and does not vacillate to *623 conform with the standard of care which the law has placed on the other party to the contract. Since Otis Elevator did not owe a duty of the highest degree of care, it was improper for the trial court to charge that the jury could presume negligence from the occurrence of the accident under the theory of res ipsa loquitur.

This Court has historically been loath to extend the doctrine of res ipsa loquitur and the concomitant shifting of the burden of proof. See, e.g., Norris v. Philadelphia Electric Co., 334 Pa. 161 , 5 A.2d 114 (1939). I am in complete accord with this salutary policy. Whether we speak in terms of degrees of negligence or not, human experience supports different treatment where a different duty is owed. Nor is a plaintiff prejudiced by such different treatment, but rather he is benefited. The doctrine of exclusive control remains available against tortfeasors not owing a duty of the highest degree of care, and in the majority of jurisdictions which do not distinguish in the application of their res ipsa loquitur doctrines an inference of negligence is permitted against all, but a presumption is permitted against none. Clearly a plaintiff in Pennsylvania is already in a favored position. Additionally, in the instant case, the plaintiff did have the benefit of the application of res ipsa loquitur against one defendant.

An additional issue raised in the Superior Court, and one not properly resolved there, concerns the question of joint exclusive control. The purpose of the requirement of exclusive control in both the res ipsa loquitur and exclusive control doctrines is that for either doctrine to be operative against a defendant, the plaintiff must affirmatively eliminate all other likely causes of the accident and other likely responsible persons. Proof that a defendant was in exclusive control of the instrumentality causing injury is thus sufficient to allow the doctrine to apply against that defendant, *624 assuming the other conditions are met. Although it is by no means clear, I agree with the Superior Court that our law permits a charge on joint exclusive control in the case of two or more defendants. Such a charge is limited in Pennsylvania, however, to those situations where the control of one defendant is attributable to the other. 3 Thus, in the present situation, assuming a proper charge, the jury could have found both Otis Elevator and Korvette’s liable only if they found that Otis Elevator was in exclusive control. 4

*625 Since the case was not even submitted to the jury on the doctrine of exclusive control, my inclination would be to reverse the trial court’s refusal to enter judgment n.o.v. in favor of Otis Elevator. However, since Otis Elevator did not appeal the Superior Court order granting a new trial, I would affirm that order. 5

Article II, Section 204(a), of the Appellate Court Jurisdiction Act of July 31, 1970, P. L. 673, 17 P.S. §211.204(a), provides for appeals from final orders of the Superior Court where at least two members of this Court have voted to permit such an appeal. By per curiam order dated March 7, 1973, this Court limited its jurisdiction in the present case to consideration of this issue.

Although I would be willing to reconsider the continued viability of this fifth condition when properly presented to the Court, this is not such a case. But for this condition, the requirements for the application of exclusive control are not dissimilar from those set forth in Restatement 2d, Torts §328D:

“(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when

“(a) the event is of a kind which ordinarily does not occur in the absence of negligence;

“(b) other responsible causes, including the conduct of the plaintiff and third persons are sufficiently eliminated by the evidence; and

“(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.”

The Superior Court disregards any limitation on its broad statement concerning joint exclusive control. In addition, the cases cited in support of the statement are not really pertinent In Bollin v. Elevator Construction Co., 361 Pa. 7 , 63 A.2d 19 (1949), neither the doctrine of res ipsa loquitur nor the doctrine of exclusive control was used. In Loch v. Confair, 372 Pa. 212 , 93 A.2d 451 (1953), this Court affirmed an order taking off a compulsory nonsuit entered in favor of one defendant, and granting a new trial against the other defendant against whom a directed verdict had been entered. This case involved an action against a store owner and a manufacturer in an exploding bottle case. Res ipsa loquitur was not applicable to the case and to the extent that there was loose language to the contrary, it should be disregarded. In regard to the doctrine of exclusive control, the Court found that its application would allow the ease to go to the jury against both defendants. With this ruling I fully agree. Only by inference, however, can it be said that the Court, by dicta, indicated that a verdict returned against both defendants would be sanctioned where the only negligence was that inferred from the application of the doctrine. Such an inference cannot be abided. A showing that one of two defendants was in exclusive control is insufficient. E.g., Fix v. Pennsylvania Power & Light Co., 346 Pa. 598 , 31 A.2d 114 (1943). A verdict against defendants based on either exclusive control or res ipsa loquitur where the control of one is not attributable to the other indicates that neither is in exclusive control and is under those circumstances an unacceptable verdict.

In regard to permissible verdicts, the jury should have been charged that if they found that Korvette’s was in fact (as contrasted with by imputation) in exclusive control of the escalator they could find Korvette’s liable under the doctrine of res ipsa loquitur *625 (assuming the presence of the other requirements) and if on that basis they did return a verdict against Korvette’s, they must return a verdict in favor of Otis Elevator (the exclusive control by Korvette’s precludes the possibility of finding exclusive control by Otis Elevator). The jury should further have been charged that if they found that Otis Elevator was in exclusive control of the escalator they could find Otis Elevator liable under the doctrine of exclusive control (assuming the presence of the other requirements) and that if on this basis they did return a verdict against Otis Elevator, they must also return a verdict against Korvette’s (this being on the basis of the doctrine of non-delegable duty).

I note that the practical effect of the Superior Court’s order is to dismiss the case against Otis Elevator, since it is difficult to imagine that the plaintiff will prosecute a new trial where a valid judgment has already been obtained against Korvette’s.