BEVERLY ROFFMAN AND CHARLES ROFFMAN, HER HUSBAND, APPELLANTS,
v.
SEARS, ROEBUCK & CO. AND MONTGOMERY ELEVATOR COMPANY, APPELLEES
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The court held that the trial court did not err in refusing to instruct the jury on res ipsa loquitur or in directing a verdict on simple negligence because the plaintiffs failed to present sufficient evidence.
[1] The doctrine of res ipsa loquitur is of extremely limited applicability and requires the plaintiff to establish that the instrumentality causing injury was under the excl…
[2] A plaintiff seeking to invoke res ipsa loquitur must establish that the circumstances surrounding the injury are such that, in light of past experience, negligence is the…
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Join FLexlaw to unlock all legal intelligenceAppellants sued Sears and Montgomery Elevator for personal injuries from an escalator unexpectedly stopping. The jury returned a verdict for the appel…
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DELL, Judge.
This appeal arises out of an action filed by appellants Beverly Roffman and her husband, Charles Roffman, for personal injuries allegedly sustained by Beverly as a result of an unexpected stop of an escalator. Appellee Sears, Roebuck & Company (Sears) owned the escalator and Montgomery Elevator Company (Montgomery) manufactured, installed and maintained it. Appellants filed a two count complaint against appellees alleging simple negligence and negligence per se. The jury returned a verdict in favor of appellees. Appellants raise seven points on appeal. We will address only the arguments made in support of appellants’ contention that the trial court erred when it refused to instruct the jury on res ipsa loquitur and when it directed a verdict on appellants’ claim of simple negligence.
The evidence in this case consisted of numerous expert witnesses testifying to a multitude of possible reasons why the escalator on which Beverly Roffman was riding unexpectedly stopped. Much of the evidence had little probative value since a Sears maintenance man testified that the escalator stopped because a circuit breaker tripped. The expert witnesses generally agreed that the circuit breaker would trip only upon the escalator’s motor burning out or some other major failure in the escalator, or because of a power failure or surge in the electrical power lines coming into the Sears store. There was no testimony that established either a motor failure, a major malfunction or that conclusively established a power surge. Although appellants’ expert witness testified that “there had to be a malfunction because it wouldn’t have stopped unless someone turned the key off,” he offered no testimony that the escalator would not have stopped in the ordinary course of events without negligence on the part of appel-lees. The record also fails to disclose any evidence from which a jury could conclude that appellees either knew or should have known of a defective or dangerous condition in the escalator mechanism.
In Otis Elevator Company v. Chambliss, 511 So. 2d 412 (Fla. 1st DCA 1987), the district court concluded that the trial court erred when it instructed the jury on the doctrine of res ipsa loquitur and reversed a judgment in favor of the plaintiffs. The plaintiff in Otis fell on an escalator in a Sears department store when it stopped suddenly. The plaintiff claimed that Sears and Otis negligently failed to maintain the escalator and that the escalator was defectively designed and manufactured by Otis. As in the case sub judice, the plaintiffs presented no evidence that the escalator was defectively designed or manufactured and no evidence that either Otis or Sears negligently maintained the escalator. This case differs slightly from Otis because the plaintiffs in Otis failed to present any evidence as to-why the escalator stopped. Here, the Sears maintenance man testified that the escalator stopped because the breaker tripped. However, appellants failed to present evidence from which the jury could have concluded that the breaker would not have tripped but for negligence on the part of appellees. The court in Otis stated:
The doctrine of res ipsa loquitur is a doctrine of “extremely limited applicability.” Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So. 2d 1339 (Fla.1978). The doctrine’s applicability has been described in Goodyear thusly:
Essentially, the injured plaintiff must establish that the instrumentality causing his or her injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control. The district courts of Florida have expanded the doctrine far beyond its intended perimeters, both by liberalizing the elements requisite to its application and by allowing the development of inferences not only as to the incident itself but also as to pre-incident acts, such as manufacture or production.
Plainly, the threshold inquiry is whether that which occurred is a phenomenon which does not ordinarily happen except in the absence of due care. The initial burden is on the plaintiff to establish that the circumstances attendant to the injury are such that, in the light of past experience, negligence is the probable cause and the defendant is the probable actor. An injury standing alone, of course, ordinarily does not indicate negligence. The doctrine of res ipsa loquitur simply recognizes that in rare instances an injury may permit an inference of negligence if coupled with a sufficient showing of its immediate, precipitating cause.
Id. at 413-14.
We hold that appellants failed to carry their initial burden to show that the escalator would not have unexpectedly stopped but for negligence on the part of appellees. In the absence of such a showing the trial court did not err in refusing to instruct the jury on res ipsa loquitur. Finally, the record is devoid of any evidence of direct negligence on the part of appellees. While the record shows that the escalator unexpectedly stopped, it does not contain evidence that would establish that the stopping distance of the escalator failed to meet minimum safety standards. See Lord v. J.B. Ivey & Company, 499 So. 2d 12 (Fla. 1st DCA 1986). Therefore we find no error in the trial court’s entry of a directed verdict on appellants’ claim of simple negligence.
Accordingly we affirm the judgment in favor of appellees.
AFFIRMED.
ANSTEAD and GUNTHER, JJ., concur.
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Burns v. Otis Elevator Co., 550 So. 2d 21 (Fla. 3d DCA 1989)…ail at trial, plaintiff must still present sufficient evidence, beyond that of the accident itself, from which the jury may infer that the accident would not have occurred but for the defendants’ breach of due care. Roff-man v. Sears, Roebuck & Co., 522 So. 2d 31 (Fla. 4th DCA 1987), review denied, 531 So. 2d 1354 (Fla.1988); Otis Elevator Co. v. Chambliss, 511 So. 2d 412 (Fla. 1st DCA 1987); Valens v. Otis Elevator Co., 482 So. 2d 479 (Fla. 3d DCA 1986). Accordingly, a factual question remains for jury dete…
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Block v. Howard Johnson Co. & Schindler Haughton Elevator Corp., 524 So. 2d 472 (Fla. 3d DCA 1988)…PER CURIAM. Affirmed. See Dober v. Worrell, 401 So. 2d 1322 (Fla.1981); Roffman v. Sears Roebuck and Co., 522 So. 2d 31 (Fla. 4th DCA 1987); Otis Elevator Company v. Chambliss, 511 So. 2d 412 (Fla. 1st DCA 1987); Anderson v. Walthal, 468 So. 2d 291 (Fla. 1st DCA 1985); Highlands Insurance Company v. Gilday, 398 So. 2d 834 (Fla. 4th DCA 1981); F & R Builders v. Lowell…
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Berenson v. S. Baptist Hosp. OF Fla., Inc., 646 So. 2d 809 (Fla. 1st DCA 1994)…ilagyi v. North Fla. Hotel Corp., 610 So. 2d 1319, 1322-23 (Fla. 1st DCA 1992) (elevator accident did not establish liability on owner’s part where no evidence demonstrated negligence in maintenance of the elevator); Roffman v. Sears, Roebuck & Co., 522 So. 2d 31 (Fla. 4th DCA 1987) (no evidence that circuit breaker’s tripping was result of defendant’s negligence; jury could not find liability based on res ipsa loquitur).…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Goodyear Tire & Rubber Co. & Travelers Ins. Co. v. Hughes Supply, Inc., 358 So. 2d 1339 (Fla. 1978)
- Otis Elevator Co. v. Lelia Chambliss and Avon Chambliss, 511 So. 2d 412 (Fla. 1st DCA 1987)
- Lord v. J.B. Ivey & Co. & Otis Elevator Co., 499 So. 2d 12 (Fla. 1st DCA 1986)