McClure v Schindler El. Corp.

[*1] McClure v Schindler El. Corp. 2005 NY Slip Op 51775(U) [9 Misc 3d 1124(A)] Decided on November 1, 2005 Civil Court Of The City Of New York, Kings County Battaglia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 1, 2005
Civil Court of the City of New York, Kings County

JAMES McCLURE, Plaintiff,

against

SCHINDLER ELEVATOR CORPORATION, Defendant.



84/04



Plaintiff appeared by William Pagan, Esq. of the Pagan Law Firm, P.C., and Defendant appeared by Vincent J. Petrozzo, Esq. of Keller, O'Reilly & Watson, P.C.

Jack M. Battaglia, J.

After a jury verdict in favor of defendant Schindler Elevator Corporation, plaintiff James McClure moves that the verdict be set aside, and that judgment be entered in his favor on liability, or, in the alternative, that there be a new trial. Because, as will appear, the Court erred in its intructions to the jury and in a related question on the verdict sheet, the motion is granted and a new trial is ordered.

Mr. McClure alleged, and testified at trial, that he was injured on May 9, 1994 while exiting an elevator at Brookdale Hospital Medical Center, where he worked. According to Mr. McClure, the elevator stopped at his floor and the doors opened, but, as he was pushing a wheelchair or stretcher over the threshold, the elevator moved upward six to eight inches, and he stumbled or fell. Schindler Elevator was under contract with Brookdale Hospital to maintain and repair the elevators.

The parties agree that "[a]n elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found." (See Rogers v Dorchester Associates, 32 NY2d 553, 559 [1973]; see also Gurevich v Queens Park Realty Corp., 12 AD3d 566, 567 [2d Dept 2004].) Before the action was transferred to Civil Court, both Mr. McClure and Schindler moved for summary judgment. Supreme Court denied Mr. McClure's motion, and granted Schindler's motion in part, in a decision and order that created serious difficulties at trial.

After reviewing the evidence presented on the motion, Supreme Court concluded that Mr. McClure had "failed to establish that...Schindler...had knowledge of the alleged dangerous condition" and "failed to establish that Schindler failed to use reasonable care to discover and correct a condition which it should have found". (Decision and order dated March 17, 2003, at 6, 7.) Supreme Court ruled that Schindler's motion "to dismiss the complaint is granted to the extent that plaintiff premises his demand for relief upon common law negligence." (Id., at 9.)

But Supreme Court denied Schindler's motion to "dismiss[] the complaint in its entirety...on the ground that plaintiff raised an issue of fact as to [Schindler's] alleged negligence through the application of the doctrine of res ipsa loquitor." (Id.) Having "dismiss[ed] plaintiff's complaint to the extent that it [was] premised upon common law negligence", his "claim for relief premised upon the doctrine of res ipsa loquitor [was] severed" for trial. (Id., at 12.)

Neither party sought review of Supreme Court's decision and order, nor moved for reargument or clarification, and they appeared for trial before this Court offering interpretations of the decision and order that might be consistent with existing law. For its part, the Court attempted to give deference to Supreme Court's decision and order as the law of the case (see People v Evans, 94 NY2d 499, 502-03 [2000]), while recognizing that literal application consistent with existing law was not possible. Taken literally, the decision and order reflected a fundamental misconception of the doctrine of res ipsa loquitor as it relates to "common law negligence".

Perhaps the simplest formulation of the doctrine is that "[t]he circumstances of the case unexplained justify the inference of negligence." (See Galbraith v Busch, 267 NY 230, 233 [1935].) "The doctrine...requires evidence which shows at least probability that a particular accident could not have occurred without legal wrong by the defendant." (Id., at 234.) "[T]he logical probative force of the evidence produced is measured, in part, by the test of whether it is the best evidence available." (Id.)

The general statement of circumstantial inference that is the doctrine of res ipsa loquitor has been particularized as three conditions to the doctrine's application. "To rely on the doctrine..., a plaintiff must show that the event was of a kind that ordinarily does not occur in the absence of negligence, that it was caused by an agency or instrumentality within the exclusive [*2]control of the defendant, and that it was not due to any voluntary actions or contributions on the part of the plaintiff." (Coku v Millar Elevator Industries, Inc., 12 AD3d 340, 340 [2d Dept 2004].) "It is enough that the evidence supporting the three conditions afford a rational basis for concluding that 'it is more likely than not' that the injury was caused by defendant's negligence." (Kambat v St. Francis Hospital, 89 NY2d 489, 494 [1997].)

For present purposes, the crucial point is that "[t]he principle that 'the thing speaks for itself' does not state a separate theory on which a plaintiff may recover for injury." (See Abbott v Page Airways, Inc., 23 NY2d 502, 512 [1969].) Res ipsa "merely permits the jury to infer negligence." (States v Lourdes Hospital, 100 NY2d 208, 213-14 [2003].) Specifically, the res ipsa inference, in effect, substitutes for evidence of actual or constructive notice where notice is a necessary element of plaintiff's claim for negligence. (See Dittiger v Isal Realty Corporation, 290 NY 492, 495-96 [1943]; Mejia v New York City Transit Authority, 291 AD2d 225, 226 [1st Dept 2002]; Parsons v State of New York, 31 AD2d 596, 596 [3d Dept 1968].)

It should be apparent that, if a plaintiff's cause of action for negligence is dismissed, there is no viable cause of action on which to apply the doctrine of res ipsa loquitor, and Supreme Court's decision and order cannot be explained. Having concluded that Mr. McClure had failed to raise a triable issue of fact as to Schindler's actual or constructive notice of a dangerous condition, but having also concluded that he raised a triable issue as to the applicability of res ipsa, Supreme Court should have simply denied Schindler's motion in its entirety. (See Carrasco v Millar Elevator Industries, Inc., 305 AD2d 353, 354 [2d Dept 2003].)

This Court was first called upon to determine the effect of Supreme Court's decision and order when, at the beginning of trial, Schindler moved to preclude any evidence as to its actual or constructive notice of a dangerous condition, such as evidence of prior malfunction, arguing that, by reason of Supreme Court's decision and order, Schindler could only be liable if it created the dangerous condition that caused the elevator to malfunction. The Court denied the motion, ruling that evidence of Schindler's failure to properly maintain, inspect, or repair was consistent with a res ipsa case. A plaintiff may "bolster his case by introducing specific evidence of the defendant's negligence...without forgo[ing] reliance on the rule of res ipsa loquitor." (Abbott v Page Airways, Inc., 23 NY2d at 511.) "The specific evidence adduced may merely support one of the many possible explanations of the accident, known or unknown." (Id., at 513.)

The question of the effect of Supreme Court's decision and order reappeared throughout the trial and, most importantly, when the case was being readied for the jury. The Court instructed the jury on the "definition" of negligence, the common law standard of care and forseeability, and res ipsa loquitor (see Pattern Jury Instructions 2:10, 2:12, 2:65 [2005].) The Court did not, however, specifically instruct the jury that Schindler would be deemed negligent if it "fail[ed] to correct conditions of which it ha[d] knowledge or fail[ed] to use reasonable care to discover and correct a condition which it ought to have found." (See Rogers v Dorchester Associates, 32 NY2d at 559.) [*3]

The Verdict Sheet asked the jury as the first question: "Was defendant Schindler Elevator Corporation negligent in that the malfunction of elevator fourteen on May 9, 1994 would not have occurred in the absence of negligence?" The other two res ipsa conditions were omitted because there was no evidence that Schindler did not have exclusive control of the elevator or that Mr. McClure contributed to the malfunction. Plaintiff did not specifically object to the Court's instructions or the Verdict Sheet.

The jury answered "no" to the first question, and, following the directions on the Verdict Sheet, proceeded no further. Plaintiff orally moved to set aside the verdict, and a briefing schedule was established.

At trial, the Court reserved decision on the parties' respective motions for a directed verdict pursuant to CPLR 4401, following the "better practice...[of] allow[ing] the case to go to the jury and entertaining motions for judgment as a matter of law after the jury [has] rendered a verdict (see CPLR 4404.)" (See Jacino v Sugerman, 10 AD3d 593, 594 [2d Dept 2004].) The standard for directing judgment as a matter of law is the same under both CPLR 4401 and 4404(a). (See Szczerbiak v Pilat, 90 NY2d 553, 556 [1997].) That standard and the standard for ordering a new trial because a jury verdict is contrary to the weight of the evidence are familiar: "Pursuant to CPLR 4404 (a) 'a court may set aside a verdict...and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial...where the verdict is contrary to the weight of the evidence.' There must be 'no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial' in order to...direct judgment in favor of a party entitled to judgment...A jury verdict should not be set aside and a new trial ordered 'unless the jury could not have reached the verdict on any fair interpretation of the evidence.' " (Lepatner v VJM Home Renovations, Inc., 295 AD2d 322, 323 [2d Dept 2002][quoting Cohen v Hallmark Cards, 45 NY2d 493, 499 (1978) and Nicastro v Park, 113 AD2d 129, 134 (2d Dept 1985)].)

In addition to the authority to set aside a verdict for insufficient evidence or as against the weight of the evidence: "CPLR 4404 (subd [a]) authorizes the court, either by motion of any party, or on its own initiative, to order a new trial 'in the interest of justice'. It is predicated on the assumption that the Judge who presides at trial is in the best position to evaluate errors therein...The Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected...and 'must look [*4]to his own common sense, experience and sense of fairness rather than to precedents in arriving at a decision'." (Micallef v Miehle Co., Division of Miehle-Goss Dexter, Inc., 39 NY2d 376, 381 [1976][quoting 4 Weinstein-Korn-Miller, NY Civ Prac, par 4404.01].)

There was extensive testimony at trial, including extensive expert testimony, directed to both the res ipsa question of whether the malfunction described by Mr. McClure would have occurred in the absence of negligence, and to Schindler's maintenance, inspection, and repair of the elevator. There was no evidence of any specific defect or defects that caused the malfunction described by Mr. McClure. (See Duke v Duane Broad Co., 181 AD2d 589, 590-91 [1st Dept 1992].) Neither Plaintiff's nor Defendant's expert inspected elevator fourteen, and there is no record of any inspection by Schindler after Mr. McClure reported the malfunction.

Looking first at the res ipsa question, the Court notes the many cases in which appellate courts have found incidents of elevator "misleveling" as appropriate for application of the res ipsa doctrine. (See Burgess v Otis Elevator Co., 114 AD2d 784, 785 [1st Dept 1985], aff'd 68 NY2d 623 [1986]; Gurevich v Queens Park Realty Corp., 12 AD3d at 567; Ardolaj v Two Broadway Land Co., 276 AD2d 264, 264-65 [1st Dept 2000]; Dickman v Stewart Tenants Corp., 221 AD2d 158, 158 [1st Dept 1995]; Bigio v Otis Elevator Co., 175 AD2d 823, 823-24 [2d Dept 1991].)

But the strength of the res ipsa inference depends upon the evidence in the particular case. Both experts testified in conclusory fashion as to whether the malfunction described by Mr. McClure would happen absent negligence. Plaintiff's expert, Patrick Carrjat, testified that it would not. (T129.) "There has to be fault somewhere in the system...[A]bsent negligence this type of thing [does] not occur on a well maintained, normally operating elevator." (T133.) But Mr. Carrajat acknowledged that parts can fail, and that it is "possible" that "[y]ou could have a failure without any negligence in terms of maintenance of the elevator." (T152-53.) He also acknowledged that "[a]t least two failures" were required for the malfunction to occur. (T140.)

Defendant's expert, Jon Halpern, testified that the malfunction "could occur in absence of negligent maintenance" (T25-26.) It was his opinion that it was "very possible that it had a spontaneous failure that caused the elevator to mislevel." (T73). But Mr. Halpern acknowledged that "[y]ou could have a failure that he should have picked up on his maintenance", and that there was a "possibility that this occurred as a result of some negligence." (T66, 67-68.) And though Mr. Halpern's testimony might be understood to assert the "greater probability" that the misleveling was a result of "spontaneous equipment malfunction", there was no specific testimony that such malfunction was "unforeseeable." (See Burgess v Otis Elevator Co., 114 AD2d at 787.)

On the broader question of actual or constructive notice, there was evidence of prior malfunction of elevator fourteen in the testimony of Mr. McClure and of his dispatcher, Sylvia [*5]Cruz. (T9-10.) (See Rogers v Dorchester Associates, 32 NY2d at 557; Burgess v Otis Elevator Co., 114 AD2d at 785; Fanelli v Otis Elevator Co., 278 AD2d 362, 362 [2d Dept 2000]; Bigio v Otis Elevator Co., 175 AD2d at 823-24; Liebman v Otis Elevator Co., 127 AD2d 745, 746 [2d Dept 1987].)

There was significant testimony concerning flooding that occurred in January 1994 and that may have caused corrosion in electrical components of elevator fourteen and in components that controlled its proper operation. A Schindler report dated January 17, 1994 noted the potential for corrosion, and advised inspection for its detection. Mr. Carrjat testified that, in his opinion, corrosion was the "probable cause" of the malfunction approximately four months later. (T113-21, 134-36, 139-40, 155-57.) Mr. Halpern disagreed. (T4-13, 50-53, 70-72.)

In accordance with the missing document instruction (Pattern Jury Instruction 1:77 [2005]) that the Court included in its charge, Plaintiff argued that the jury should take a negative inference from Schindler's failure to produce maintenance books that were kept in the elevator "machine room" at Brookdale. A failure to produce evidence is also relevant in "weighing probabilities" under a res ipsa charge. (See George Foltis, Inc. v City of New York, 287 NY 108, 117 [1941].) Schindler explained that the books were left at Brookdale when Schindler's contract to maintain and repair the elevators ended.

The probative value of all this evidence, or its lack, must be assessed by the Court with attention to the proper application and effect of the res ipsa doctrine. With res ipsa "[t]he jury is...allowed...but not compelled...to draw the permissible inference." (Kambat v St. Francis Hospital, 89 NY2d at 495.) "[E]vidence which under the rule of res ipsa loquitor satisfies the plaintiff's duty of producing evidence sufficient to go to the jury...is ordinarily not sufficient, even when the defendant produces no evidence in contradiction or rebuttal, to entitle the plaintiff to the direction of a verdict." (George Foltis, Inc. v City of New York, 287 NY at 119-20.) Even where the defendant's evidence "leave[s] open to the possibility that the injury was due to fault", a directed verdict based upon res ipsa is not appropriate. (See id., at 118.)

"It is the rare case in which a plaintiff will be entitled to a directed verdict because the prima facie proof is so convincing that the inference arising therefrom is inescapable unless rebutted by other evidence." (Weeden v Armor Elevator Co., Inc., 97 AD2d 197, 204-05 [2d Dept 1983]; see also George Foltis, Inc. v City of New York, 287 NY at 121; Morgan v Solomon, 305 AD2d 982, 984 [4th Dept 2003]; Thomas v New York University Medical Center,

283 AD2d 316, 317 [1st Dept 2001]; New Dimension Realty 005, L.L.C. v Sincere, 189 Misc 2d 32, 33 [App Term, 2d Dept 2001].)

It appears, moreover, that in the context of a res ipsa case "it would be a meaningless distinction to differentiate between directing a verdict for plaintiff and holding that the verdict in favor of defendant was against the weight of the evidence." (See Lo Piccolo v Knight of Rest Products Corp., 7 AD2d 369, 375 [1st Dept 1959], aff'd on other grounds 9 NY2d 662 [1962]; see also 7 AD2d at 376 [Botein, J. concurring]; but see id., at 381 [Bergan J., dissenting].) [*6]

Considering all of the evidence in the context of res ipsa, which is the context in which the Court's instructions and Verdict Sheet asked that the jury consider it, the Court cannot say that the inference of negligence was "inescapable", or that the jury could not have answered question 1 as it did on any fair interpretation of the evidence.

But the ultimate issue for jury determination should have been whether Schindler failed to use reasonable care in the maintenance, inspection, or repair of the elevator, not whether the malfunction "would not have occurred in the absence of negligence". The first question on the Verdict Sheet and the absence of an instruction describing Schindler's duty of care may have confused the jury, and led the jury to believe that Schindler could be liable only if the malfunction "would not have occurred in the absence of negligence", even though Schindler might have been negligent in this case.

"A trial judge is required to state the law relevant to the particular facts at issue, and a set of instructions that confuses or incompletely conveys the germane legal principals to be applied in a case requires a new trial." (J.R. Loftus, Inc. v White, 85 NY2d 874, 876 [1995]; see also Maimonides Medical Center v Cynlip Boro Park Associates, 231 AD2d 691, 692-93 [2d Dept 1996].) And so, a new trial was required where "[t]he court failed to inform the jury as to what duty or standard of care was owed by the defendants to the plaintiff in order to

lay a proper foundation for the jury to come to a conclusion as to whether or not there was actionable negligence." (Johnson v Artkraft Strauss Sign Corp., 45 AD2d 482, 484 [1st Dept 1974].) And a new trial was required where there was a failure to charge "with relation to the city's duty to maintain its highways in a reasonably safe condition" and "the jury was left uninstructed as to the relative responsibility of [a codefendant] and the city." (LaRocca v City of New York, 104 AD2d 753, 754 [1st Dept 1984]; see also Fox v Tedesco, 15 AD3d 538, 539 [2d Dept 2005]; Septoff v La Shellda Maintenance Corp., 242 AD2d 618, 618 [1997].)

Plaintiff did not request an instruction describing Schindler's duty of care, and did not specifically object to the Court's charge or the Verdict Sheet. There is authority that "[t]he trial court is not entitled to set the verdict aside based on legal principles which it later determines should have been included in the charge." (Kroupova v Hill, 242 AD2d 218, 220 [1st Dept 1997]; see also CPLR 4110-b; 34-35 Corp. v Industry City Associates, 14 AD3d 550, 550 [2d Dept 2005].) "In consequence of the failure to register any protest to the charge to the jury, the law as stated in the charge became the law applicable to the determination of the rights of the party in [the] litigation." (Harris v Armstrong, 64 NY2d 700, 701 [1984].)

And yet, "CPLR 4404 (subd [a]) authorizes the court, either by motion of any party, or on its own initiative, to order a new trial 'in the interest of justice'." (Micallef v Miehle Co., Division of Miehle-Goss Dexter, Inc., 39 NY2d at 381 [emphasis added].) "[I]n many cases, even where the evidence is sufficient to sustain it, a verdict may be properly set aside and a new trial ordered." (McDonald v Metropolitan Street Railroad Co., 167 NY 66, 69 [1901].) [*7]

These seemingly-contrary directions can be reconciled by recognition that formal objection by a party is unnecessary to the court's authority to correct its own error when the court and the opposing party have been "adequately appraised" of it (see Sabin-Goldberg v Horn,

179 AD2d 462, 464 [1st Dept 1992]; Williams v City of New York, 101 AD2d 835, 836 [2d Dept 1984]; see also Elenkrieg v Siebrecht, 238 NY 254, 263 [1924]); and when the error is "fundamental" (see Gallagher v Daniella's Restaurant, 6 AD3d 659, 660 [2d Dept 2004]; Johnson v Grant, 3 AD3d 720, 721 [3d Dept 2004]; Clark v Interlaken Owners, Inc., 2 AD3d 338, 340 [1st Dept 2003]; Veal v New York City Transit Authority, 148 AD2d 443, 445 [2d Dept 1989]; Decker v Rassaert, 131 AD2d 626, 627 [2d Dept 1987]; see also Micallef v Miehle Co., Division of Miehle-Goss Dexter, Inc., 39 NY2d at 382.)

The effects of Supreme Court's decision and order were in dispute between the parties from the beginning of trial and Defendant's motion to preclude, throughout the trial as objections were made to the introduction of evidence, and at the conclusion of trial during the charge conference, although, again, Plaintiff stated no objection to the charge or the Verdict Sheet. An objection was not necessary, however, to alert the Court to the difficulty of attempting to give appropriate deference to the prior decision and order that the Court recognized as plainly wrong.

An error is deemed "fundamental" when it is "so significant that the jury was prevented from considering the issues at trial." (See Wood v Strong Memorial Hospital of University of Rochester, 273 AD2d 929, 930 [4th Dept 2000][quoting Kilburn v Acands, Inc., 187 AD2d 988, 989 [4th Dept 1992].) At the other end of the spectrum of significance, an error in the charge will be considered "harmless" if the "charge as a whole conveyed the correct legal principles" (see Manna v Diego, 261 AD2d 590, 591 [2d Dept 1999]), and if the correct instruction was "not necessary for the jury to consider fairly the issues at trial" (see Kilburn v Acands, Inc., 187 AD2d at 989].) The assessment of the significance of the error will be affected by whether the evidence presented a "close issue" on the subject. (Compare Capicchioni v Morrissey, 205 AD2d 959, 960-61 [3d Dept 1994] with Franklin v Nestved, 225 AD2d 1026, 1026-27 [4th Dept 1996] and Liebgott v City of New York, 213 AD2d 606, 606 [2d Dept 1995].)

Had this action come to this Court unaffected by the Supreme Court decision and order, even if the jury rejected the res ipsa inference, it would have been permitted to weigh the evidence and conclude nonetheless that Schindler was negligent. " [R]es ipsa loquitor aside, circumstantial evidence of sufficient probative force may permit a jury to infer negligence." (Rogers v Dorchester Associates, 32 NY2d at 559.) Under those circumstances, the failure to instruct as to Schindler's duty of care, and to allow the jury to decide whether Schindler breached that duty without reference to the res ipsa conditions, would have constituted "fundamental" error.

In light, however, of Supreme Court's decision and order purporting to "dismiss plaintiff's complaint to the extent that it [was] premised upon common negligence", based as it was on Supreme Court's conclusion that Plaintiff had failed to establish Schindler's knowledge of a dangerous condition or failure to discover or correct it, it is arguable at least that permitting the [*8]jury to find negligence without reference to res ipsa would violate the law of the case doctrine. (See Garcia v City of New York, 104 AD2d 438, 438 [2d Dept 1984], aff'd 65 NY2d 805 [1985]; Vanguard Tours, Inc. v Town of Yorktown, 102 AD2d 868, 868 [2d Dept 1984].) Since the doctrine is discretionary (see People v Evans, 94 NY2d at 503]), "flexible, not an inescapable straightjacket" (Garcia v City of New York, 104 AD2d at 438), and subject to "a showing of extraordinary circumstances" (Vanguard Tours, Inc. v Town of Yorktown, 102 AD2d at 868), it is also arguable that it should not apply to a prior ruling that is internally inconsistent.

It seems to the Court, in any event, that the law of the case doctrine cannot preclude the Court from adequately instructing the jury so that it might properly resolve the claim that was "severed" for trial. With all respect to Supreme Court, there is no "claim for relief premised upon the doctrine of res ipsa loquitor." The claim for relief is negligence, and the jury cannot be expected to properly assess the circumstantial evidence as an inferential basis for finding negligence unless it is told what negligence is.

Particularly because the res ipsa question was the only basis on which the jury could find liability, the general negligence instructions were insufficient. Moreover, when the absence of a specific instruction as to Schindler's duty is coupled with question one, equating a finding of Schindler's negligence to a finding that the malfunction "would not have occurred in the absence of negligence", the danger of misleading the jury was unacceptably high. The evidence as to maintenance, inspection, and repair, reinforced by counsel's summary arguments, cannot substitute for adequate court direction.

Plaintiff's motion is granted to the extent that the jury's verdict is set aside and a new trial ordered.

Plaintiff shall serve a copy of this Decision and Order with Notice of Entry upon Defendant and the appropriate clerk(s) within 20 days after entry.

November 1, 2005

Judge, Civil Court