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Dover Elevator Co. v. Swann3/25/1994
tent problems, which seems to be consistent with what happened thereafter; that is that these problems continued to occur.
Mr. Bothell said that it was his practice to take this file, insert it as he did and file this material off. That may be true, that may not be true. It is really ... your judgment call as to whether that was an appropriate conduct in light of what Mr. Moynihan said was the appropriate standard of care."
Plaintiff's counsel concluded that the contacts in question were inexpensive parts and readily available in Mr. Bothell's service truck.
As illustrated by these excerpts, Mr. Moynihan testified to the probable cause of elevator number two's misleveling. He specifically testified that contacts 14 and 15 were "burned closed," which would cause the elevator to either "overshoot" or "stall" in the leveling zone. He further rendered an opinion, "to a reasonable degree of engineering probability," that the proper and reasonable course of action when the contacts are "burned closed" is to replace them. He concluded by testifying that this course of action was not taken by Dover's elevator technician, Ronald Bothell. According to the repair records and Moynihan's expert testimony, Mr. Bothell attempted to clean the contacts by filing them and, in Moynihan's opinion, this was an unreasonable or "terrible" course of conduct.
The additional testimony offered by Ronald Bothell also addressed the "burned" contacts in an apparent attempt to refute the direct evidence offered by the plaintiff's expert witness. Finally, in his closing argument, plaintiff's counsel developed a negligence theory around the direct evidence offered throughout the trial. Hence, the jury was presented with an issue of whether cleaning rather than replacing the contacts was negligent.
In arriving at its conclusion that this direct evidence of negligence did not preclude the plaintiff's reliance on res ipsa loquitur, the Court of Special Appeals extensively discussed two principal cases: Blankenship v. Wagner, 261 Md. 37, 273 A.2d 412 (1971) and Nalee, Inc. v. Jacobs, 228 Md. 525, 180 A.2d 677 (1962). We find these cases distinguishable from the instant case, however, because little or no direct evidence of negligence was offered in either of them. The only evidence offered by the plaintiff in Blankenship was that, as he and a coworker were carrying a refrigerator up a set of stairs behind the defendant's house, one of the steps collapsed underneath the coworker's feet. 261 Md. at 39-40, 273 A.2d at 413. The plaintiff was forced to support the entire weight of the refrigerator from above to prevent it from falling on his coworker, who was caught in the broken step. In doing so, the plaintiff injured his back. 261 Md. at 40, 273 A.2d at 413. Blankenship is distinguishable from the instant case because the plaintiff in Blankenship never sought to offer even a partial explanation of why the step collapsed beneath his coworker's feet. He only sought to prove res ipsa loquitur 's three basic elements. This Court therefore decided that the directed verdict in favor of the defendant was inappropriate and reversible error. Blankenship, 261 Md. at 42, 273 A.2d at 415.
In the course of its reasoning, the Blankenship Court also acknowledged the following principle which guides our reasoning in the instant case:
"'The justice of the rule permitting proof of negligence by circumstantial evidence is found in the circumstance that the principal evidence of
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