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GILES v. NEW HAVEN2/8/1994
rawn jointly against the owner of an elevator and the elevator company which maintains the same. Johnson v. Otis Elevator Co., 225 Pa. Super. 500, 502, 311 A.2d 656, 657 (1973). See also: Carney v. Otis Elevator Co., [370 Pa. Super. 394, 536 A.2d 804 (1988)]; Williams v. Eastern Elevator Co., 254 Pa. Super. 393, 386 A.2d 7 (1978)." Williams v. Otis Elevator Co., 409 Pa. Super. 486, 493, 598 A.2d 302 (1991). If the jury could reasonably find that the defendant's control was sufficient to warrant an inference that the defendant was more likely responsible for the incident than someone else, even in the absence of proof of absolute exclusivity and
control over the instrumentality by the defendant, the trial court must allow the jury to draw that inference. Wilson v. Honeywell, Inc., 409 Mass. 803, 807, 569 N.E.2d 1011 (1991).
The Restatement (Second) of Torts also rejects the requirement of exclusive control. A party's negligence may be inferred when "other responsible causes . . . are sufficiently eliminated by the evidence . . . ." 2 Restatement (Second), Torts 328(D)(1)(b). While exclusivity may eliminate other causes, the critical inquiry is not whether the defendant's control was exclusive, but whether that defendant was responsible for the injury . Id., 328(D), comment (g). " here is no necessity for a plaintiff to eliminate all other possible causes of the accident. All that is required is that the plaintiff produce sufficient evidence from which a reasonable [person] could say that, on the whole, it was more likely than not that there was negligence on the part of the defendant. . . . he possibility of other causes does not have to be eliminated completely, but their likelihood must be so reduced that the jury can reasonably find that the negligence, if any, lies at the defendant's door." Parrillo v. Giroux Co., 426 A.2d 1313, 1319 (R.I. 1981); W. Prosser, Torts (4th Ed. 1971) 39; 2 F. Harper & F. James, Torts (1956) 19.7.
In this case, the parties agree that the defendant was in control of the maintenance and repair of the elevator and its parts, and that the operation of the elevator by the plaintiff was tantamount to its use. The defendant, however, seeks to distinguish the components of the elevator from their mechanical function by arguing that, although it controlled the elevator chain, it did not control the chain's sway. We reject such a view of control. Although by operating the elevator the plaintiff may have diminished the exclusivity of the defendant's control, a jury could find that her conduct did not strip the defendant of control or responsibility for the chain and its condition, which resulted in the excessive sway. We also reject the defendant's suggestion that someone else could have operated the elevator in such a fashion as to cause the excessive sway. Such a suggestion amounts to speculation that the plaintiff need not dispositively refute. See Sedlitsky v. Pareso, 400 Pa. Super. 1, 5, 582 A.2d 1314 (1990).
Hendry, the defendant's maintenance supervisor, testified that the compensation chain was located under the cab and, consequently, was inaccessible to an operator inside the cab. He testified that the bolts and brackets to which the chain was fastened - which had been broken - likewise were located under the cab and could not have been touched by an elevator operator inside the cab. He added that the defendant's mechanic had not been trained or instructed to inspect the compensation chain to determine whether it had been loose or swayed so that it might catch on the rail brackets. Hendry further testified that no part of the compensation
mechanism, including the compensation chain and the U-bolts
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