Gilbert v. Korvette's, Inc.

Concurring and Dissenting Opinion by

Packel, J.:

The crushing of a three year old boy’s toe by an escalator in a department store presents the question of whether both the store and an independent maintenance contractor can be held liable under the doctrine of res ipsa loquitur. The plaintiffs sued the store and the contractor which had installed the escalator less than one year prior to the accident and which thereafter inspected, serviced, and maintained it weekly. The case was submitted to the jury under the theory of res ipsa loquitur as applied to both defendants, and the jury found for the plaintiffs, against both defendants.¹

As early as 1848, the Pennsylvania Supreme Court in Laing v. Colder, 8 Pa. 479, 482-483 (1848) held that common carriers owe the highest degree of care to their passengers: “The slightest neglect against which human prudence and foresight may guard, and by which hurt or loss is occasioned, will render them liable to answer in damages. Nay, the mere happening of an injurious accident, raises, prima facie, a presumption of neglect, and throws upon the carrier the onus of showing it did not exist.” It is well settled by now that the operator of an escalator is a common carrier. Petrie v. Kaufmann & Baer Co., 291 Pa. 211, 213, 139 A. 878, 879 (1927).

The jury could reasonably have found that the store had sufficient control over the escalator so as to be a common carrier, in that its employees started and stopped the escalator daily and cleaned the exterior parts. Nor was it even necessary for the jury to make that determination since a store which offers an escalator service for the benefit of its customers cannot relieve itself of the high degree of care owed them by delegating responsibility for maintenance and inspection to an independent contractor. Restatement 2d of Torts, §425. Although the Pennsylvania courts have not yet adopted this section of the Restatement, a recent Supreme Court case applied closely analogous §427, relating to work involving a special danger. Philadelphia Electric Co. v. Julian, 425 Pa. 217, 228 A. 2d 669 (1967). Other jurisdictions have developed rules regarding the non-delegability of a duty requiring the highest degree of care to be exercised by a common carrier. See Domany v. Otis Elevator Co., 369 F. 2d 604 (6th Cir. 1966), cert. denied, 387 U.S. 942 (1967).

The more difficult question is whether an escalator company can be held directly liable to a plaintiff under the doctrine of res ipsa loquitur even though that company is not a common carrier. In Evans v. Otis Elevator Co., 403 Pa. 13, 18, 168 A. 2d 573, 575-576 (1961), the Court held the elevator company liable to a person injured in an elevator which was owned and operated by a separate company, not a party to the litigation, on the basis of a contract between the two companies: “It is not the contract per se which creates the duty; it is the law which imposes the duty because of the nature of the undertaking in the contract. If a person undertakes by contract to make periodic examinations and inspections of equipment, such as elevators, he should reasonably foresee that a normal and natural result of his failure to properly perform such undertaking might result in injury not only to the owner of the equipment but also third persons, including the owner’s employees.” The case was submitted to the jury as a regular negligence case, without any mention of res ipsa lo'quitur, perhaps because the elevator in Evans was a freight elevator.

There appear to be no Pennsylvania cases prescribing what standard of care is required of a company assuming the responsibilities of a common carrier, but it has been held that the standard of care varies according to the nature of the undertaking, MacDougall v. Penna. Power & Light Co., 311 Pa. 387, 396, 166 A. 589, 592 (1933) : “Vigilance must always be commensurate with danger. A high degree of danger always calls for a high degree of care. The care to be exercised in a particular case must always be proportionate to the seriousness of the consequences which are reasonably to be anticipated as a result of the conduct in question.” In accord are two cases imposing special duties of care on manufacturers of potentially dangerous products. Maize v. Atlantic Ref. Co., 352 Pa. 51, 41 A. 2d 850 (1945) (warning on can of toxic cleaner not conspicuous enough); Foley v. The Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A. 2d 517 (1949) (explosion of liquified natural gas tank manufactured by defendant).

The Pennsylvania courts have established a special standard to apply to common carriers in order to protect the public being served by them. A plaintiff is allowed to rest his case on res ipsa loquitur because “when the passenger commits himself to the carrier he does so in ignorance of the machinery and the appliances, as well as their defects, used in connection with the means of transportation, and becomes a passive and helpless creature in the hands of the transportation company and its agents.” Fox v. Philadelphia, 208 Pa. 127, 134, 57 A. 356, 358 (1904). The same reasoning calls for the application of that standard to companies which assume the responsibilities of a common carrier. The contractor was aware that the escalator it installed and maintained was to be used by the customers of the store. It, alone, was in control of the machinery which operated the escalator. It had a duty to inspect and to maintain it for the protection of all users. To remove the boy’s foot from the escalator, the steps had to be wedged apart and the comb plate removed. The plaintiffs would have no way of proving what the defendants had done, or failed to do, which caused the accident to happen. This is a classic case for res ipsa loquitur.

Three other jurisdictions have upheld submitting the case against both the store and the escalator company to the jury under the doctrine of res ipsa loquitur in factual situations very similar to the case here. Do-many v. Otis Elevator Co., 369 F. 2d 604 (6th Cir. 1966) (applying Ohio law); Vandagriff v. J. C. Penney Co., 228 Cal. App. 2d 579, 39 Cal. Rptr. 671 (1964); Enslein v. Hudson & Manhattan R.R. Co., 8 Misc. 2d 87, 165 N.Y.S. 2d 630 (1957), aff’d as to liability and rev’d as to damages, 6 App. Div. 2d 833, 176 N.Y.S. 2d 70 (1958), aff’d 6 N.Y. 2d 723, 185 N.Y.S. 2d 810 (1959). Each of the above cases involve state doctrines regarding common carriers, similar to that in Pennsylvania. Other cases involving an escalator, or elevators, have held it wrong to submit the case against the elevator company to the jury under res ipsa loquitur because of the higher control exercised by the store or owner: Weston v. Gold & Co., 167 Neb. 692, 94 N.W. 2d 380 (1959) (escalator); Otis Elevator Co. v. Yager, 268 F. 2d 137 (8th Cir. 1959); McDonald v. Houghton Elevator & Machine Co., 60 Ohia App. 185, 14 Ohio Ops. 17, 20 N.E. 2d 253 (1938). In Domany, supra, the court distinguished McDonald, supra, because the relationship between the store and the elevator company differed as to the amount of control each exercised over the machinery.

Our Supreme Court has held that two defendants acting separately can both have exclusive control and, therefore, that it is permissible to submit the case against two defendants under the doctrine either of exclusive control or of res ipsa loquitur, Loch v. Confair, 372 Pa. 212, 93 A. 2d 451 (1953) (plaintiff injured by an exploding bottle sued both the bottler and the grocery store).

Whether the store has a right over against the elevator company, is not properly before this Court. The store may pursue such a claim, but that does not preclude the plaintiff’s obtaining a judgment against the store in this action.

Both appellants have also appealed the refusal of the judge to grant judgment n.o.v. on the theory that no reasonable jury could find that either appellant could have avoided the accident by exercising more care. I cannot agree. In a res ipsa loquitur case the only burden on the plaintiff is to show that the accident occurred and was caused by a machine within the category of common carriers, Petrie v. Kaufmann & Baer Co., 291 Pa. 211, 213-214, 139 A. 878 879 (1927) : “While a carrier is not an insurer of the safety of the passengers, he is bound to exercise the highest practical degree of care for their safety, and where a passenger is injured through some defect in the means of transportation or the manner of operation, the burden is upon the carrier to show it could not have been prevented by human foresight.” The only evidence offered by either appellant to show that the accident could not have been prevented was the testimony of an expert witness who first examined the escalator almost two years after the accident. Even that testimony did little to clarify what actually happened and less to prove the inevitability of such accidents. It is common knowledge that small children frequently ride escalators with adults who are shopping. The testimony for the plaintiff indicated that the boy was standing still next to his grandfather on the escalator. It is hard to believe that it is impossible to prevent a three year old child’s foot from becoming stuck between escalator steps or between the step and the comb, and the appellants did not convince the judge or the jury otherwise.

The final question raised by the appellant is as to the amount of the verdict. The verdict of $3,500 to the parents and $27,500 for the boy, as remitted, were not excessive.

I concur in the affirmation of the judgment in favor of the department store but dissent from the reversal of the judgment against the independent maintenance contractor.

1 The issue of liability on the basis of products liability pursuant to the Restatement 2d of Torts, §402A was not raised and hence is not considered.