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GILBERT v. KORVETTE'S (12/11/72)

decided: December 11, 1972.

GILBERT
v.
KORVETTE'S, INC. ET AL., APPELLANTS



Appeals from judgment of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1962, No. 1066, in case of Creston Gilbert, a minor by his parent and natural guardian, James Gilbert v. Korvette's, Inc. and Otis Elevator Company.

COUNSEL

Peter P. Liebert, 3rd, with him Liebert, Short, Fitzpatrick & Lavin, for defendant, appellant.

William G. Klenk, II, with him Miller, Sidkoff, Pincus, Greenberg & Golden, for defendant, appellant.

William L. Meritz, with him Prince and Meritz, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Concurring and Dissenting Opinion by Packel, J.

Author: Hoffman

[ 223 Pa. Super. Page 361]

We are presented on appeal with the question of whether either or both a department store-operator of an escalator and the company which manufactures and services said instrumentality may be held liable under the theory of res ipsa loquitur to a plaintiff who is injured while a passenger on the escalator in defendant's store.

This appeal arises from an action for damages for personal injuries sustained by Creston Gilbert, then a minor under the age of four, on August 20, 1960, while in the store of E. J. Korvette, Inc. The minor-plaintiff, who was wearing high sneakers or basketball shoes, was on the escalator with his grandfather, Creston C. Mueller and his sister, Vicky, in Korvette's department store at Welsh Road & Roosevelt Boulevard in Philadelphia. The testimony discloses that all three passengers were standing on one step of the down escalator with the grandfather in the middle, holding the hand of each child. When they reached the bottom of the escalator, Mr. Mueller testified that he raised both his hands to help guide and assist the children off the escalator. While he and Vicky stepped off safely, minor-plaintiff was unable to follow as his foot was caught in the combs of the step. Minor-plaintiff's foot was pulled into the comb plate, and could not be extricated until a crowbar was used, resulting in the destruction of two of the steps. Injuries resulted in a partial amputation of minor's left great toe, and general disfiguration and deformity of the foot.

[ 223 Pa. Super. Page 362]

Plaintiffs sued the store and the company which had manufactured, installed and contracted to service the escalator on a weekly basis. Korvette's employees started and stopped the escalator, checked to see if it was operating properly, and cleaned it on a daily basis. Although plaintiffs originally had set forth in the complaint specific acts of negligence on the part of the defendants, the case was submitted on a theory of res ipsa loquitur against both of the defendants. The trial judge charged that if the jury found that both defendants had exercised joint exclusive control of the instrumentality, a verdict could be returned against both defendants under the theory of res ipsa loquitur.*fn1 The jury then found in favor of the minor child in the sum of $35,000 and in favor of the minor's parents in the sum of $5,000.

In the law of torts, it is a universally established rule that the burden of proving negligence lies upon the one who alleges it. Exception to this general rule has been established by the existence of the doctrine of res ipsa loquitur and the exclusive control doctrine. In those cases, our courts have permitted a finding of negligence from purely circumstantial evidence.

I. The Doctrine of Res Ipsa Loquitur

Traditionally, three factors must coexist in order to invoke the doctrine of res ipsa loquitur: (a) the defendant

[ 223 Pa. Super. Page 363]

    must owe to the plaintiff a duty of the highest degree of care; (b) the instrumentality which caused the accident was in the exclusive control of the defendant; and, (c) that which happened was something that ordinarily would not have occurred if the defendant had exercised the high degree of care which the law imposes upon him. Zahniser v. Pa. Torpedo Co., 190 Pa. 350, 42 A. 707 (1899); Alexander v. Nanticoke Light Co., 209 Pa. 571, 58 A. 1068 (1904).

Where the duty is absolute or there exists an obligation practically amounting to that of an insurer, the courts have applied the doctrine with some degree of uniformity. Because of the attendant imposition of a presumption of negligence,*fn2 however, such application has been limited in this jurisdiction to a very narrow group of cases, the major portion of which are common carrier cases.*fn3 It is generally recognized in all jurisdictions

[ 223 Pa. Super. Page 364]

    that a common carrier must exercise the highest practical degree of care in order to protect and safeguard its passengers. An injury resulting to a passenger through any of the appliances of transportation raises a presumption of negligence which the carrier must rebut. Furby v. Pa. R.R. Co., 286 Pa. 85 (1926). Even as to the common carrier cases, however, the doctrine has been limited in application to only those cases where the injury arises out of the transportation function in the relationship of carrier and passenger. Patterson Co. v. Pittsburgh Rwys. Co., 37 Pa. Superior Ct. 212 (1908); Zercher v. Phila. Rapid Transit Co., 50 Pa. Superior Ct. 324 (1912); Nebel v. Burrelli, 352 Pa. 70, 41 A.2d 873 (1945).

The reluctance of our courts to invoke this doctrine is not surprising, as the attendant consequences can be insurmountable to a defendant unable to find a reason for the happening of a particular accident. "Being in derogation of the general principal that 'the negligence charged must be established by evidence', the rule [res ipsa loquitur] has been thus narrowly restricted in its application. Norris v. ...


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