Res ipso loquitur did not apply in an escalator case where there was no objective evidence of malfunctioning

Res ipso loquitur did not apply in an escalator case where there was no objective evidence of malfunctioning (plaintiff misstepped onto the escalator and there was no proof of malfunction), but did apply in an elevator case where the elevator unexplainedly stopped suddenly and abruptly.

Summary judgment was affirmed to Macy’s and to its independent escalator servicing company because neither defendant had any notice of the alleged escalator defect either before or after the incident, and because the doctrine of res ipsa loquitur did not apply.

The store’s manager and the escalator company’s mechanic both testified that they received no reports of the escalator’s shaking or stopping and starting before or after the date of plaintiff’s accident.  Nor did anyone, including plaintiff, before or after her accident, observe the escalators stop and start several times in succession, as plaintiff claimed occurred when she fell.  There was evidence, however, that plaintiff fell after misstepping onto the elevator and that after her fall, she successfully rode the escalator up to the next level with no further escalator malfunction.  Moreover, defendant’s expert opined that plaintiff’s description of the alleged malfunctioning was a mechanical impossibility because it would have resulted in a catastrophic mechanical failure of the escalator that would have resulted in observable problems and would have required a significant repair, none of which occurred.

Plaintiff failed to raise a question of fact.  Her expert relied on a bare-bones print-out of prior elevator incidents that was unauthenticated and that gave no indication that the incidents were similar to the one at issue.  The print-out was therefore inadmissible as proof of prior incidents.  Also inadmissible were service calls made by Macy’s to the elevator servicing company four and five months before plaintiff’s incident.  The calls pertained to an escalator on a different level that was not running, which was a malfunction that was unrelated to the type plaintiff described.  Moreover, plaintiff’s expert’s opinion that the accident was caused by a defective step chain and a lack of proper and adequate preventative maintenance was speculative and conclusory.

Lastly, the doctrine of res ipsa loquitur, which would permit a jury to infer negligence based upon the sheer happening of the event, was inapplicable:  The escalator never operated in the manner that plaintiff described either before or after her incident, and plaintiff, after her fall, rode the escalator up to the next level without further malfunctioning.   The evidence of plaintiff’s misstepping getting onto the escalator created the possibility of plaintiff’s own negligence in causing the accident.  And res ipsa loquitur could not be applied to Macy’s because Macy’s had ceded all responsibility for the daily operation, repair and maintenance of the escalator to the servicing company via a full-service contract.

Torres-Martinez v Macy’s, Inc., 2017 NY Slip Op 00429 (1st Dep’t Jan. 24, 2017) http://nycourts.gov/reporter/3dseries/2017/2017_00429.htm.

In contrast, however, the First Department did apply res ipsa loquitur to defeat the motion for summary judgment by defendant NYC Housing Authority in a case where plaintiff was injured when an elevator came to a unexplained sudden and abrupt stop; defendant failed to demonstrate that it lacked exclusive control over the elevator; and there was no evidence that vandalism caused the elevator’s malfunction or that plaintiff’s actions contributed to the accident.

Galante v. New York City Hous. Auth, 2017 NY Slip Opn  00430 (1st Dep’t Jan. 24, 2017) http://nycourts.gov/reporter/3dseries/2017/2017_00430.htm

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