Elevators in tall buildings are part of life in a New York City. It follows that there are a lot of personal injury cases arising out of elevator accidents. An elevator maintenance company may be liable to a passenger for failure to fix a defective condition of which it had knowledge, or for failure to use reasonable care to discover and correction such a condition. However, plaintiff still has the burden of proof. Can plaintiff use Res Ipsa Loquitur to satisfy the burden?

In Thermidor v. Pinnacle Uptown, LLC, plaintiff was struck on his head by a piece of metal that was protruding from inside the elevator door. In its motion for summary judgment, the elevator maintenance company argued that plaintiff failed to establish that it had control over or created any defect.

The plaintiff countered by arguing that the circumstances of the incident may afford a sufficient basis for an inference of negligence under the theory of res ipsa loquitur, which literally means “the thing speaks for itself.” As the Court noted, to prevail under a theory of res ipsa, a plaintiff must establish: (1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.

The Court reasoned that though res ipsa had been used in other elevator injury cases, “unlike cases involving breakdown of operating mechanisms that are relatively inaccessible to the general public, in this instance, the gate is designed to come into contact with the public and, thus, subject to potentially damaging misuse or vandalism.” After reviewing the facts of the case, the Court explained that the elevator company had performed maintenance ten days prior to the accident and was not at the building for the next ten days. Everyone who lived in the building, and anyone else who used the elevator, including building staff, tenants and guests, had access to the gate and elevator. Therefore, the Court decided that the elevator company did not have exclusive control over the elevator and res ipsa was not warranted.

When defending against a claim of res ipsa loquitur, it is important to keep in mind that the plaintiff must establish all three prongs of the doctrine to establish liability. It is a difficult burden for the plaintiff to overcome, especially where control over the instrumentality that allegedly caused the harm was not “exclusive.”

Thanks to Jeremy Seeman for his contribution to this post.

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