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October 16, 1974


Appeal, No. 290, Jan. T., 1973, from order of Superior Court, Oct. T., 1972, Nos. 1129 and 1646, affirming 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, and James Gilbert v. Korvette's, Inc. and Otis Elevator Co. Order affirmed. 603


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

William L. Meritz, for Creston Gilbert, appellee.

Peter P. Liebert, 3rd, with him Harry A. Short, Jr., Thomas J. Finarelli and Liebert, Short, Fitzpatrick & Lavin, for Otis Elevator Co., appellee.

Before Jones, C.j., Eagen, O'brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Roberts

[ 457 Pa. Page 603]


Three-year-old Creston Gilbert, in the company of his grandfather and sister, was riding an Otis escalator in a Korvette's department store. At the bottom of the escalator, Creston attempted to alight, but his foot became caught in the step and was pulled into the comb plate. As a consequence, young Creston lost part of his left great toe and suffered general disfiguration and deformity of the foot.

Subsequently, an action for negligence was brought against Korvette's, Inc., which owned and operated the escalator, and Otis Elevator Co., which manufactured, installed, and by contract undertook, in its judgment,

[ 457 Pa. Page 604]

    to regularly and systematically examine, adjust, repair, replace, and otherwise service and maintain the escalator.*fn1 The case was submitted to the jury with an instruction on res ipsa loquitur, and verdicts against both defendants were returned. Each defendant appealed to the Superior Court. That court affirmed as to Korvette's but, believing the doctrine of res ipsa loquitur was erroneously applied against Otis, ordered a new trial for that defendant.*fn2 This Court granted Korvette's petition for allowance of appeal*fn3 limited, however, to a determination whether the case against Otis was properly submitted to the jury on res ipsa loquitur.*fn4 For reasons different than those advanced by the Superior Court, we affirm the award of a new trial to defendant Otis.*fn5


The Latin expression "res ipsa loquitur" originated as a casual utterance during argument by Chief Baron Pollock in Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep.

[ 457 Pa. Page 605299]

(Ex. 1863). There, a barrel of flour fell from a window of defendant's warehouse, striking a passing pedestrian. Despite his inability to show how or why the barrel rolled out the window, the pedestrian-plaintiff was permitted to recover upon a showing that the defendant was in possession of the warehouse. In effect, the case held merely that both negligence and causation may be established by circumstantial evidence. If the defendant owed the plaintiff a duty of care, and if the circumstances indicated that the defendant breached that duty causing injuries, the plaintiff, according to Chief Baron Pollock, could recover. Res ipsa loquitur, therefore, in its origin involved nothing more than a commonsense appraisal of the probative force of circumstantial evidence.

Although res ipsa loquitur was conceived as a shorthand statement of the evidentiary rule allowing negligence to be established by circumstantial proof, confusion developed in this Commonwealth and elsewhere*fn6 concerning the availability and effect of this "doctrine."*fn7 As Dean Prosser observed, res ipsa loquitur early "became involved... in cases of injuries to passengers at the hands of carriers, with the aftermath of an older decision [ Christie v. Griggs, 2 Camp. 79, 170 Eng. Rep. 1088 (N.P. 1809)] which had held that the carrier had the burden of proving that it had not been negligent. The two principles, one concerned with the sufficiency of circumstantial evidence, the other of the burden of proof, gradually became confused and intermingled; and from this fusion there developed an uncertain 'doctrine' of res ipsa loquitur, which has been the source of so much trouble to the courts that the

[ 457 Pa. Page 606]

    use of the phrase itself has become a definite obstacle to any clear thought, and it might better be discarded entirely." W. Prosser, Handbook of the Law of Torts § 39, at 213 (4th ed. 1971) (footnotes omitted); see Restatement (Second) of Torts § 328D, comments a, b (1965); 9 J. Wigmore, Evidence § 2509, at 378 (3d ed. 1940).

Similarly, the evidentiary use of res ipsa loquitur became associated with a related but separate problem - the nature and extent of the substantive duty owed by the defendant to the plaintiff. The scope of a defendant's control of an activity or instrumentality is a factor which may relate both to the question of his duty and to the propriety of inferring negligence from particular circumstances. However, the dual importance of control in tort law confounded the evidentiary principle of res ipsa loquitur with the question of substantive duty. Further uncertainty was thereby created.

In Pennsylvania, this confusion among evidentiary, substantive, and procedural questions obscured the meaning of res ipsa loquitur. This confusion led our courts at an earlier stage of jurisprudential development to restrict the use of the Latin phrase "res ipsa loquitur" to those cases in which the defendant owed the plaintiff the "highest degree of care."*fn8 Included in this class of defendants were owners and operators of

[ 457 Pa. Page 607]

    common carriers,*fn9 elevators,*fn10 and escalators,*fn11 as well as suppliers of electrical power.*fn12

However, the considerations in determining the nature and extent of substantive tort duty are not necessarily the same as those underlying the evidentiary use of res ipsa loquitur. Thus, the degree of danger threatened by a particular activity may, for example, be an important reason for subjecting electric companies to the highest degree of care, but it may have relatively slight bearing on whether negligence or causation may be inferred from the circumstances of a particular electrical accident.

Our cases, therefore, have tended to constrict the types of cases in which circumstantial evidence can be used to establish either negligence or causation. For example, if a barrel fell on a pedestrian passing the defendant's warehouse, res ipsa loquitur as previously formulated in Pennsylvania would be inapplicable because the defendant owes only an "ordinary" duty of care. Cf. Rucinski v. Cohn, 297 Pa. 105, 146 A. 445 (1929).*fn13

Having limited the use of the Latinism "res ipsa loquitur" to a small class of cases, earlier Pennsylvania tribunals - often stating that res ipsa loquitur does not apply - have achieved the same result as did Chief

[ 457 Pa. Page 608]

Baron Pollock by simply stating that juries may infer negligence when the evidence is circumstantial.*fn14 To the same end,*fn15 other Pennsylvania courts have utilized a unique sibling ...

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