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Dover Elevator Co. v. Swann3/25/1994
the true cause of the accident is accessible to the defendant, but inaccessible to the victim of the accident. The rule is not applied by the courts except where the facts and the demands of justice make its application essential, depending upon the facts and circumstances in each particular case.'"
261 Md. at 41, 273 A.2d at 414 (quoting Potts v. Armour & Co., 183 Md. 483, 488, 39 A.2d 552, 555 (1944)). The Court recognized, however, in reference to the direct evidence standard established in Nezbed, that an offer of some "circumstantial evidence which tends to show the defendant's negligence" should not as a matter of policy preclude reliance on res ipsa loquitur. Blankenship, 261 Md. at 46, 273 A.2d at 417. See also Nezbed, 202 Md. at 263, 96 A.2d at 245.
The instant case also does not present a situation where "'the principal evidence of the true cause of the accident'" was accessible only to the defendant and "'inaccessible to the victim.'" Blankenship, 261 Md. at 41, 273 A.2d at 414 (quoting Potts, 183 Md. at 488, 39 A.2d at 555). As stated herein, the plaintiff's expert witness testified to the specific cause of the accident within a reasonable degree of engineering probability. Mr. Moynihan did not merely provide some circumstantial evidence tending to show the defendant's negligence with regard to contacts 14 and 15 and the misleveling of elevator number two. He purported to offer a complete explanation of the precise cause and how the negligence of Dover's technician contributed to that cause.
As Chief Judge Wilner observed in his Swann dissent:
"[Swann] marshalled evidence to show the precise cause of the misleveling--the malfunction of the contacts--and to show as well that Dover was negligent in not replacing those contacts prior to the accident. The focus of the case was on whether Dover was remiss in merely cleaning the contacts rather than replacing them."
Swann, 95 Md. App. at 418, 620 A.2d at 1015 (Wilner, C.J., dissenting). Obviously, therefore, the principle evidence of the apparent cause of the accident was fully available to the plaintiff. Consequently, "'the facts and the demands of justice'" do not make the application of res ipsa loquitur essential under the circumstances of this particular case. Blankenship, 261 Md. at 41, 273 A.2d at 414 (quoting Potts, 183 Md. at 488, 39 A.2d at 555).
The other case relied upon by the Court of Special Appeals, Nalee, Inc. v. Jacobs, is equally distinguishable from the factual circumstances of the instant case. In Nalee, the plaintiff was injured in the defendant's hotel when a nearby bench fell over and struck him on the foot. The only arguably direct evidence offered by the plaintiff was testimony that the bench was not fastened to the floor or the wall. Nalee, 228 Md. at 528-29, 180 A.2d at 678-79.
As in Blankenship, the Nalee Court also recognized that direct evidence of negligence may preclude application of res ipsa loquitur. In the course of its analysis of this issue, the Nalee Court attempted to distinguish the case of Smith v. Bernfeld, 226 Md. 400, 174 A.2d 53 (1961), in which the plaintiff offered direct evidence of negligence and was precluded from relying on res ipsa loquitur. In relation to that case and the issue of
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