Smith, B. v. U.S. Facilities ( 2021 )

J-A27023-20 & J-A27024-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BEVERLY SMITH IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
U.S. FACILITIES, INC., SCHINDLER
ELEVATOR CORPORATION.,
THYSSENKRUPP ELEVATOR
CORPORATION AND THE PHILADELPHIA
MUNICIPAL AUTHORITY
Appellant No. 3104 EDA 2019
Appeal from the Order Entered September 17, 2019
In the Court of Common Pleas of Philadelphia County
Civil Division at Nos: 170903298, 180703393
BEVERLY SMITH IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
OTIS ELEVATOR COMPANY,
THYSSENKRUPP ELEVATOR
CORPORATION, THYSSENKRUPP
ELEVATOR MANUFACTURING, INC., AND
VERTICAL EXPRESS
Appellant No. 3105 EDA 2019
Appeal from the Order Entered September 17, 2019
In the Court of Common Pleas of Philadelphia County
Civil Division at Nos: 170903298, 180703393
BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A27023-20 & A27024-20
CONCURRING AND DISSENTING MEMORANDUM BY STABILE, J.:
Filed: June 10, 2021
I agree with the learned Majority that the trial court properly determined
expert testimony was required to prove Appellant’s negligence claims, and
concur in the Majority’s conclusion that summary judgment was appropriately
granted in both cases before us on appeal. However, I write separately to
distance myself from the Majority’s analysis of the res ipsa loquitur issue.
Essentially, the Majority analyzed the elements of the Restatement
(Second) of Torts § 328D and determined that Appellant failed to establish
the requisite elements of res ipsa, agreeing with the trial court’s assessment
that there is not “a fund of common knowledge concerning the process by
which bolts are caused to break and become loose, from which a layperson
could reasonably draw the inference or conclusion that Appellees’ acts caused
her damages.” Majority Memorandum at 21 (quoting Trial Court Opinion,
11/25/19, at 14). However, I believe res ipsa is inapplicable for a more basic
reason, i.e., there is direct evidence of negligence in this case.
As Justice Newman explained in Toogood v. Rogal, 824 A.2d 1140 (Pa.
2003) (plurality):
Res ipsa loquitur is neither a doctrine of substantive law nor a
theory; rather, it is a rule of circumstantial evidence. . . .
The doctrine of res ipsa loquitur allows plaintiffs, without direct
evidence of the elements of negligence, to present their case to
the jury based on an inference of negligence. The key to the
doctrine is that a sufficient fund of common knowledge exists
within a jury of laypersons to justify raising the inference.
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J-A27023-20 & A27024-20
Instead of directly proving the elements of ordinary negligence,
the plaintiff provides evidence of facts and circumstances
surrounding his injury that make the inference of the defendant’s
negligence reasonable. . . . This theory relieves the plaintiff of
having to prove causation directly.
Id. at 1146 (emphasis added). See also MacNutt v. Temple University
Hospital, Inc., 932 A.2d 980, 986 (Pa. Super. 2007) (en banc) (“[t]he
doctrine of res ipsa loquitur is a rule of circumstantial evidence which allows
plaintiffs, without direct evidence of the elements of negligence, to
present their case to the jury based on an inference of negligence.”)
(emphasis added). The trial court stated that the “[i]nvestigation into the
cause of the accident revealed that eight bolts near the elevator’s motor had
failed.” Trial Court Opinion, 11/25/19, at 3 (citing Appellant’s Memorandum
in Opposition to Appellee ThyssenKrupp’s Motion for Summary Judgment).
Unlike a situation where there is no direct evidence of causation, here there
was deposition testimony that the elevator malfunction was caused by the
failure of eight bolts. Therefore, this is not a res ipsa case where an inference
of negligence is allowed because there is no direct evidence of negligence.
Consequently, an analysis of the Section 328D factors is not necessary to the
disposition of these appeals.
As the Majority correctly determined, Appellant could not establish the
causation element of a negligence case without expert testimony because an
elevator is a complex piece of machinery, the workings of which are beyond
the ken of the average layperson. Majority Memorandum at 13-19. The issue,
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J-A27023-20 & A27024-20
however, of whether expert testimony is necessary to assist a jury to
understand matters not within the common knowledge of a layperson, see
Pa.R.E. 702, has no bearing on whether a res ispa loquitur inference may be
permitted when there is no direct proof of negligence. Nonetheless, because
Appellant failed to identify an expert on the issue of causation, summary
judgment was appropriate.
In summary, I concur in the Majority’s affirmance of the grant of
summary judgment and agree with the Majority’s analysis of summary
judgment with respect to Appellant’s negligence claims. However, while I
concur the overall result, I do not join the Majority’s Memorandum with
respect to its analysis of the res ipsa issue.
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