LOIS D. BUTCHER, AS GUARDIAN, FOR JAMES VAUGHN, A MINOR, APPELLANT,
v.
MIAMI ELEVATOR COMPANY, INC., A DELAWARE CORPORATION, APPELLEE

Fla. 3d DCA | 1990-05-15
No. 89-1004
Before FERGUSON, LEVY and GERSTEN, JJ.
568 So. 2d 61 Florida District Court of Appeal, Third District (1990) Positive Treatment
Cited by 4 cases

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Synopsis

An eleven-year-old boy was injured when an elevator door failed, trapping his leg. The trial court excluded a res ipsa loquitur instruction and admitted hearsay statements blaming the child's actions for the accident. The appellate court reversed and remanded for a new trial, finding both evidentiary errors were likely to have affected the outcome.


Holding

The trial court erred in both respects. A res ipsa loquitur instruction should have been given because the elevator company had complete control of the device and the direct evidence of negligent maintenance was immediately destroyed. The hearsay statements in the accident reports were inadmissible because they contained statements from unidentified sources and were made in anticipation of litigation, lacking trustworthiness. These errors were not harmless and likely affected the outcome.


Headnotes

[1] A jury instruction on res ipsa loquitur should be given when the only direct evidence of negligent maintenance is immediately destroyed by the defendant and the defendant…

[2] Statements contained in letter-reports prepared by a former employee and sent to an insurer, attributing an accident to the victim's actions, constitute inadmissible hear…

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Key Quotes

“The lack of direct evidence coupled with the fact that appellee had complete control of the vehicle makes the doctrine of res ipsa loquitur particularly applicable.”

Establishes why res ipsa loquitur should have been applied when the defendant destroyed the only direct evidence of negligent maintenance.

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Facts & Procedural History

James Vaughn, age eleven, was injured when an elevator door gave way at the Castillian Club Condominium, trapping his leg between the elevator cab and…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This appeal is brought from a judgment, entered on a jury verdict, in favor of Miami Elevator Company.

James Vaughn, age eleven, was injured when an elevator door gave way trapping his leg between the elevator cab and a wall at the Castillian Club Condominium. There was conflicting testimony at trial as to the exact cause of the accident. Miami Elevator Company, holder of an exclusive contract with the condominium association, was sued on a theory of negligent maintenance of the elevator. Miami Elevator acknowledges that immediately after the accident the nylon bottom guides or gibs and the door, the allegedly defective or negligently maintained components which caused the accident, were discarded.

Two evidentiary rulings of the trial court require that the case be retried. First, an instruction on res ipsa loquitur should have been given where the only direct evidence of negligent maintenance of the elevator was immediately destroyed by the defendant. The lack of direct evidence coupled with the fact that appellee had complete control of the vehicle makes the doctrine of res ipsa loquitur particularly applicable. Ferguson v. Westinghouse Elec. Corp., 408 So. 2d 659 (Fla. 3d DCA 1981), rev. denied, 418 So. 2d 1281 (Fla.1982).1

Second, the damaging statements attributed to the plaintiff by unidentified sources — contained in three letter-reports prepared by a former employee of the condominium’s management company and sent to the insurer — as to how the accident occurred, were inadmissible hearsay. See Van Zant v. State, 372 So. 2d 502 (Fla. 1st DCA 1979) (where source of information was not the person who prepared the documents, such documents not only were themselves hearsay but contained hearsay, and did not become admissible as evidence merely by being recorded in the course of business). In those documents, which were published to the jury, were conclusory statements that the victim’s act of kicking the door caused its failure. Admission of the statements was erroneous. See Stambor v. One Hundred Seventy-Second Collins Corp., 465 So. 2d 1296 (Fla. 3d DCA) (accident reports made in anticipation of litigation are generally inadmissible in evidence for lack of trustworthiness), rev. denied, 476 So. 2d 675 (Fla.1985). Because there is a reasonable probability that a result favorable to the plaintiff would have been reached if the jury had been instructed on res ipsa, and the contents of the report attributing the accident to the victim’s act of vandalism had been excluded, we cannot agree that admission of the hearsay statements was harmless. See Parkansky v. Old Key Largo, Inc., 546 So. 2d 1143 (Fla. 3d DCA 1989).

Reversed and remanded.

. See Wolpert v. Washington Square Office Center, 555 So. 2d 382 (Fla. 3d DCA 1989) (as an evidentiary tool, res ipsa relieves a tort plaintiff in limited circumstances of the burden to prove the defendant's negligence by direct evidence).

Other

This appeal is brought from a judgment entered on a jury verdict finding the defendant not liable for injuries suffered by an eleven-year-old who was injured when an elevator door collapsed.

We disagree with the plaintiff that he was entitled to have the jury instructed on res ipsa loquitor where the physical evidence, consisting of the elevator’s nylon bottom guides and the door, had been discarded by the defendant when the door was repaired.1 A plaintiff may not avail himself of the res ipsa doctrine where there is competent evidence that the accident was caused by his own negligence. Valens v. Otis Elevator Co., 482 So. 2d 479 (Fla. 3d DCA 1986). There was evidence, in the form of statements given by the young plaintiff to rescue workers, that the door gave way when he kicked it. One of the plaintiff’s own experts corroborated the rescue worker’s testimony, after studying the accident, that the door had been forcibly kicked or bumped.

Other hearsay evidence of the plaintiff’s actions, although erroneously admitted, was cumulative and for that reason was harmless. Foster’s Auto Crushing v. Wood, 427 So. 2d 1009 (Fla. 1st DCA 1982); Eckert v. Government Employees Ins. Co., 334 So. 2d 119 (Fla. 3d DCA 1976).

Affirmed.

. There was no allegation of an inability to proceed because of the destruction of evidence. See Miller v. Allstate Ins. Co., 562 So. 2d 759 (Fla. 3d DCA 1990), and cases collected.


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Citator

Cited By

  • The Celotex Corp. v. Foytik, 597 So. 2d 869 (Fla. 3d DCA 1992)
    …PER CURIAM. We affirm the final judgment. The testimony appellant claims should have been excluded was cumulative and any error in its admission was harmless. Butcher v. Miami Elevator Co., 568 So. 2d 61, 63 (Fla. 3d DCA 1990); Metropolitan Dade County v. Coats, 559 So. 2d 71, 73 (Fla. 3d DCA), review denied, 569 So. 2d 1279 (Fla.1990). The remaining issue on appeal was not preserved for review. Middelveen v. Sibson Realty, Inc., 417 So. 2d 275 (F…
  • The Celotex Corp. v. Virold Moeckel, 598 So. 2d 323 (Fla. 3d DCA 1992)
    …81, 59 L.Ed.2d 63 (1979); Orme v. Burr, 157 Fla. 378, 25 So. 2d 870, 879 (1946); Owens-Corning Fiberglas Corp. v. Terwilliger, — So. 2d - (Fla. 3d DCA 1992, Case No. 91-1441, opinion filed April 7, 1992) [17 FLW D909]; Butcher v. Miami Elevator Co., 568 So. 2d 61, 63 (Fla. 3d DCA 1990); Metropolitan Dade County v. Coats, 559 So. 2d 71, 73 (Fla. 3d DCA), review denied, 569 So. 2d 1279 (Fla.1990); Middelveen v. Sibson Realty, Inc., 417 So. 2d 275, 276-77 (Fla. 5th DCA), review denied, 424 So. 2d 762 (Fla.1982)…

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