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Lowrey v. Montgomery Kone3/26/2002
for the jury to resolve.
In summary, it was permissible in this case for expert witnesses to address the question whether the accident was of a type ordinarily attributable to negligence. See Smith v. Munger, 532 P.2d 1202, 1205 (Okla. Ct. App. 1974) (knowledge of the mechanical workings of elevators and what might cause them to malfunction is outside the common knowledge of a layperson). And, we reiterate, when qualified expert witnesses conflict over the question whether an accident would likely have occurred in the absence of negligence, the conflict does not preclude the application of res ipsa loquitur. Rather, the fact-finder must resolve the conflict in order to determine whether the doctrine shall apply. Here, Montgomery Kone offered the expert opinion that the elevator incident was attributable to a power failure and not to negligence. But Lowrey's expert offered the opinion that, even in the event of a power failure, an elevator would not have functioned as this one did in the absence of negligence. Lowrey's expert's testimony, if believed by the jury, would have established the first element of res ipsa loquitur, for it would have "allow the jury to infer that negligence was more likely than not the cause of the accident." Cox, 183 Ariz. at 364, 903 P.2d at 1122.
B. Inability to Show the Particular Circumstances that Caused the Elevator to Fall
We have concluded that Lowrey sufficiently established the first element of res ipsa loquitur to escape summary judgment on that ground, and, as we have indicated, Montgomery Kone does not challenge the second element; because it maintained the elevator, the elevator was subject to its control. We turn then to the question whether summary judgment may be affirmed on the ground that Lowrey failed to establish the third element -- an inability to show the particular circumstances that caused the elevator to fall. Montgomery Kone argues that Lowrey cannot meet this requirement because her elevator expert never examined the elevator.
In McDonald, we stated, "Invocation of res ipsa loquitur is no substitute for reasonable investigation and discovery. The doctrine may benefit a plaintiff unable directly to prove negligence; it does not relieve a plaintiff too uninquisitive to undertake available proof." 157 Ariz. at 321, 757 P.2d at 125. We cannot determine from the present record, however, whether an examination of the elevator was material to the formation of Lowrey's expert's opinion. Nor does this element appear to have been significant to the trial court's decision; indeed, we cannot find in the record that this argument was raised before the trial court. Further, as we also indicated in McDonald, a defendant cannot attack a plaintiff's failure to examine the instrumentality of injury unless it has preserved the instrumentality after the injury in such condition that an examination would likely be productive. See id. Had Lowrey's expert inspected the elevator, the inspection would not have occurred until months after the accident, and there is no evidence that such an examination would likely have revealed the condition of the elevator at the relevant time.
In summary, we conclude that the trial court erred in precluding Lowrey from relying upon res ipsa loquitur to advance her case. The summary judgment against her must accordingly be reversed.
III. COMMON CARRIER DOCTRINE
The case will therefore be remanded, but a question remains: whether the trial court properly determined by partial summary judgment that Montgomery Kone should not be subjected under the common carrier doctrine to a higher-than-ordinary standard of care. Common carriers were traditionally said to
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