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Lowrey v. Montgomery Kone3/26/2002
AFFIRMED IN PART; REVERSED IN PART; REMANDED
Plaintiff Krystal Lowrey and her husband appeal from summary judgment in Lowrey's suit to recover damages from an elevator maintenance company for injuries that she sustained in an elevator that descended rapidly and abruptly stopped. Concluding that the trial court erred in precluding Lowrey from relying upon res ipsa loquitur to advance her case, we reverse the summary judgment entered against her. We uphold, however, the trial court's ruling that defendant Montgomery Kone, Inc., an elevator maintenance company, is not susceptible under the common carrier doctrine to a higher-than-ordinary standard of care. In the course of our decision, we join with other courts that have reexamined and abandoned the notion of a common carrier's higher duty of care in favor of the standard of reasonable care under the circumstances.
I. BACKGROUND
Lowrey, an American Express employee, entered an elevator in the American Express Building to go from the first to the fourth floor. The elevator stopped on the third floor, a passenger stepped out, and the elevator lifted on its way. Soon the fourth floor indicator lit up and the elevator stopped, but the doors did not open. The elevator then shook for two to three seconds, the lights went out, and the elevator dropped. At the second floor, it stopped abruptly and the doors opened. Lowrey suffered a back injury that eventually required surgery.
Lowrey and her husband brought this lawsuit against Montgomery Kone, Inc., among others. But after ruling, upon successive motions for summary judgment, that neither the common carrier doctrine nor res ipsa loquitur applied, the trial court dismissed Lowrey's suit with prejudice.
In reviewing an order granting summary judgment, we must determine whether a genuine issue of disputed material fact exists and, if not, whether the trial court correctly applied the substantive law. In re Estate of Johnson, 168 Ariz. 108, 109, 811 P.2d 360, 361 (App. 1991).
II. RES IPSA LOQUITUR
Defendant's expert offered the opinion that the elevator incident was caused by a power failure, not by negligence. Although Lowrey's expert did not offer a counter-explanation of the fall, he did state the opinion that, even in the event of a power failure, a hydraulic elevator should come to a stop in a manner that is not substantially different from a normal stop, and that "an elevator does not function as the elevator in this case did without negligence." Upon this evidence, we consider whether the trial court erred by precluding Lowrey from relying on res ipsa loquitur to advance her claim.
Res ipsa loquitur (meaning the thing speaks for itself) is "a rule of circumstantial inference of responsibility for an injury ." McDonald v. Smitty's Super Valu, Inc., 157 Ariz. 316, 318, 757 P.2d 120, 122 (App. 1988). A plaintiff who establishes the elements of res ipsa loquitur can avoid summary judgment and reach the jury without direct proof of negligence. Cox v. May Dep't Store Co., 183 Ariz. 361, 364, 903 P.2d 1119, 1122 (App. 1995). Whether res ipsa loquitur applies is preliminarily a question of law for the court. Ward v. Mount Calvary Lutheran Church, 178 Ariz. 350, 354, 873 P.2d 688, 692 (App. 1994).
At present, Arizona law holds three elements to be necessary to the application of res ipsa loquitur: (1) the accident must be of a kind that ordinarily does not occur in the absence of negligence; (2) the accident must be caused by an agency or instrumentality subject to the control of the defendant; (3) the plaintiff must not be in a position to show the particular circumstances that cau
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