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Dover Elevator Co. v. Swann3/25/1994
direct evidence, the Nalee Court stated the following:
"In [Bernfeld,] all of the facts with regard to the actual happening of the accident had been developed, and when developed, they were held insufficient to establish negligence on the part of the defendant. It was in that context that we said ... that 'the plaintiffs' attempt to establish specific grounds of alleged negligence precludes recourse to the doctrine of res ipsa loquitur.'"
228 Md. at 532, 180 A.2d at 680 (quoting Bernfeld, 226 Md. at 409, 174 A.2d at 57). The Nalee Court correctly concluded that, in cases where the plaintiff's evidence "did not stop at the point of showing the happening of the accident under circumstances in which negligence of the defendant was a permissible inference," the plaintiff was properly precluded from utilizing the res ipsa loquitur doctrine. Nalee, 228 Md. at 532, 180 A.2d at 681. The Court concluded that "negligence on the part of the defendant could have properly been drawn by the jury from the evidence in this case without resort to the 'doctrine' of res ipsa loquitur...." Nalee, 228 Md. at 533, 180 A.2d at 681.
This Court's reasoning in Nalee is equally applicable to the instant case. The plaintiff in this case did not stop at the inference of the defendant's negligence, drawn from the single misleveling of the elevator, but purported to establish more. In doing so, "all of the facts with regard to the actual happening of the accident had been developed, and when developed, they were held insufficient to establish negligence" on the part of Dover. Nalee, 228 Md. at 532, 180 A.2d at 680.
In the instant action, Swann's primary complaint was not that a single misleveling created an inference of negligence, but that Dover's failure to properly correct the problem after prior mislevelings constituted negligence. More particularly, Swann contended Dover was negligent by cleaning, rather than replacing, contacts 14 and 15, failing to spend adequate time servicing the elevator, keeping deficient records, and failing to stock sufficient replacement parts. This did not constitute reliance on res ipsa loquitur. Swann established a prima facie case of direct negligence based on specific and comprehensive evidence gleaned from Dover's service records and Moynihan's on-site investigations. The trial judge apparently concluded, and we agree, that a res ipsa loquitur instruction was not proper because the plaintiff's expert witness established that the most likely cause of the elevator's misleveling was an insufficient current running between contacts 14 and 15 and the defendant's negligence, if any, was the failure to correct the misleveling problem. In effect, the plaintiff's expert, Donald Moynihan, and the defendant's witness, Ronald Bothell, agreed that the probable cause of any possible misleveling was the contacts but they disagreed over whether cleaning rather than replacing these contacts constituted negligence.
Thus, the reasoning of Nalee, like that of Blankenship, leads us to the conclusion that res ipsa loquitur should not be applied to the facts and circumstances of the case before us. Cf. Roberts v. Cave, 257 Md. 582, 588, 263 A.2d 863, 866 (1970)(holding that offering specific evidence as to cause removed possibility of relying on presumption of negligence). See also Larkins v. Baltimore Transit, 249 Md. 305, 308-10, 239 A.2d 566, 568-69 (1968)(concluding that reliance
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