Urena v. Schindler Elevator Corporation et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
ROBERTA URENA, )
)
Plaintiff, ) 3:15-CV-00223-JWS
)
vs. ) ORDER AND OPINION
)
) [Re: Motion at docket 103, 110, 113]
SCHINDLER ELEVATOR )
CORPORATION and COLUMBIA )
SUSSEX, )
)
)
Defendants. )
)
I. MOTIONS PRESENTED
At docket 103, Plaintiff Roberta Urena (“Plaintiff”) requests that the court rule in
advance of trial that the doctrine of res ipsa loquitur applies to this case, which involves
injuries allegedly caused by an elevator malfunction, thereby lessening Plaintiff’s burden
on the showing of negligence. Schindler Elevator and Columbia Sussex (“Defendants”)
oppose the motion at docket 132.
At docket 113, Plaintiff asks the court to rule that a heightened “common carrier”
standard of care applies to this case. Defendants oppose the motion at docket 130.
At docket 110, Plaintiff requests that the court, if not inclined to rule in her favor
on the appropriate standard of care, certify these issues as ones appropriate for the
Alaska Supreme Court to answer. Defendants initially opposed Plaintiff’s request at
docket 136.
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II. BACKGROUND
This lawsuit arises out of an elevator malfunction that occurred on September 21,
2013, at the Hilton Hotel in downtown Anchorage. Plaintiff was the sole passenger in
the Hilton elevator when it made an unexpected safety stop. Plaintiff alleges that the
elevator plunged in a free fall for eight floors before coming to a stop. Plaintiff was
trapped in the elevator between the fifth and sixth floors and had to be extracted by the
Anchorage Fire Department. She alleges that she suffered injuries because of the fall.
Defendants acknowledge that there was an unexpected emergency stop but dispute
that the elevator did a free fall and dispute the distance the elevator dropped during the
stop.
III. DISCUSSION
A. Res Ipsa Loquitur
“The doctrine of res ipsa loquitur permits, but does not compel, an inference of
negligence from the circumstances of an injury.”1 “The doctrine, where applicable, is a
bridge, dispensing with the requirement that a plaintiff specifically prove breach of duty,
once that duty and proximate cause have been established.”2 The doctrine should be
applied when:
(1) the accident is one which ordinarily does not occur in the absence of someone's
negligence;
(2) the agency or instrumentality is within the exclusive control of the defendant;
(3) the injurious condition or occurrence was not due to any voluntary action or
contribution on the part of the plaintiff.3
This three-part inquiry helps determine whether the plaintiff’s evidence is sufficient to
show that it is more probable than not that the injury resulted from the defendant’s
breach of duty. That is, “where several causes of an accident are equally probable, a
plaintiff may still avail himself of res ipsa loquitur by presenting evidence which tends to
1State Farm Fire & Cas. Co. v. Municipality of Anchorage, 788 P.2d 726, 730 (1990).
2Widmyer v. Se. Skyways, Inc., 584 P.2d 1, 10 (Alaska 1978) (footnotes omitted).
3Id. at 11.
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eliminate all but those causes resulting from defendant’s negligence.”4 If the plaintiff
succeeds in doing so, an inference of negligence on the part of the defendant arises
and the defendant must present rebuttal evidence.5 “[T]he doctrine makes recovery
possible where circumstances render proof of the defendant's specific act of negligence
impracticable and the defendant is the party in the superior, if not the only, position to
determine the cause of an accident.”6
Plaintiff asserts that the doctrine of res ipsa loquitur is generally applicable in
cases involving elevator malfunctioning. She asserts that “elevators which are correctly
constructed, kept in repair, and adequately inspected normally do not fall,” and when
one does fall there is a reasonable inference of negligence.7 The doctrine of res ipsa
loquitur, however, “does not allow negligence to be established from the mere fact of
injury itself.”8 Rather, as discussed above, its application depends on the
circumstances surrounding an injury.9 At this juncture of the litigation, the
circumstances surrounding the elevator’s emergency stop are not beyond reasonable
dispute. That is, at this time, Plaintiff has not shown that her evidence will be sufficient
to instruct the jury on the issue of res ipsa loquitur.
Plaintiff asks that in lieu of ruling on the application of res ipsa loquitur to this
case, it certify the issue to the Alaska Supreme Court. She wants the state court to
weigh in on whether res ipsa loquitur automatically applied to cases involving an
elevator malfunction. However, the court concludes that certification is not warranted
4Lynden Transp., Inc. v. Haragan, 623 P. 2d 789, 794 (Alaska 1981).
5Id. at 794-95 (quoting Am. Elevator Co. v. Briscoe, 572 P.2d 534 (Nev. 1977)).
6State Farm, 788 P.2d at 730.
7Doc. 90 at p. 10.
8Widmyer, 584 P.2d at 10.
9Id. at 13 (“While it is clear that [r]es ipsa loquitur is applicable in general to aviation
cases, it is not necessarily applicable to every such case since the specific circumstances will
vary.”).
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under Rule 407(a) of the Alaska Rules of Appellate Procedure.10 An answer to the
question would not be determinative here, because, as noted above, even if the
doctrine may be generally applicable to malfunctioning elevator cases, it does not follow
that it would be applicable here since its application depends on the specific
circumstances of every case and whether Plaintiff’s evidence tends to “eliminate all but
those causes resulting from defendant’s negligence.” While there is no directly
controlling precedent related to elevator cases, there is sufficient Alaska Supreme Court
precedent explaining how the state court applies the doctrine of res ipsa loquitur so that
this court can “approximate state law as closely as possible” and predict how state court
would rule on this issue.11
B. Common Carrier
Plaintiff argues that the court should treat Defendants as “common carriers”
thereby subjecting them to a higher standard of care. She argues that the Alaska
Supreme Court has applied the heightened standard to airline operators. In doing so,
the Court reasoned that “a general duty of due care instruction is inadequate with
respect to common carriers transporting passengers for hire.”12 She argues that while
the Supreme Court has not articulated a test for determining whether a defendant is a
common carrier, elevators are akin to airplanes because passengers of each “are
completely at the mercy of the carrier and are entitled to assume that the highest
degree of care is being taken for their safety.”13 Given the similar vulnerabilities
10Alaska R. App. P. 407(a) (“The supreme court may answer questions of law certified to
it by . . . a United States district court, . . . when requested by the certifying court if there are
involved in any proceeding before it questions of law of this state which may be determinative of
the cause then pending in the certifying court and as to which it appears to the certifying court
there is no controlling precedent in the decisions of the supreme court of this state.”).
11Ticknor v. Choice Hotels Int’l, Inc., 265 F.3d 931, 939 (9th Cir. 2001) (internal quotation
omitted).
12Widmyer, 584 P.2d at 5.
13Id. (discussing why airline passengers are owed a heightened duty of care).
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between an airline passenger and an elevator passenger, Plaintiff argues that Alaska
law would treat Defendants as common carriers.
Defendants argue that the Alaska Supreme Court has limited the common carrier
heightened standard of care to the context of an airline and its passengers and would
not extend its application any further. In support they cite State v. Johnson14 where the
Court noted that a heightened standard of care does not categorically apply to situations
where the plaintiff and defendant have a relationship that is comparable to an airline
and its passengers.15 They argue the appropriate standard under Alaska law is simply
that the defendant exercise the care that is reasonable and prudent under the
circumstances.16
Defendant also points to AS 05.20.010 in support of its argument. In that statute,
the state legislature declared that an owner or operator of ski equipment and devices,
as defined in AS 05.20.120, “is not considered a common carrier.”17 A “device” under
AS 05.20.120 includes those items “designed and operated for the conveyance or
movement of persons and that is used as a source of or aids in the promoting of
entertainment, pleasure, play, relaxation, or instruction including but not limited to ski
tows, roller coasters, merry-go-rounds, and Ferris wheels.”18 Defendants assert that
elevators are more akin to these ski “devices” than to airplanes and therefore the
common carrier standards should not apply to elevator cases.
The issue of common carrier liability for elevator owners has been decided in a
number of other states. As outlined by the Maryland Court of Special Appeals in John
142 P.3d 56 (Alaska 2000).
15Id. at 60 n.15
16Id. 60.
17AS 05.20.010.
18AS 05.20.120.
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Hopkins Hospital v. Correia,19 21 states, including four states within the Ninth Circuit,
have concluded that elevator owners or operators are held to the standard of care of
common carriers, and 14 states, including three other states within the Ninth Circuit,
have held that elevator owners or operators are held to an ordinary care standard.20
In the absence of controlling precedent by the Alaska Supreme Court, this court
would normally attempt to predict how the Alaska Supreme Court would resolve the
issue based on related case law. However, it is difficult to approximate state law in this
instance given the Alaska Supreme Court’s existing case law on standards of care, the
legislature’s enactment of AS 05.20.010, and the split among other states. This
uncertainty, combined with the fact that the standard of care could be determinative,
leads the court to conclude that it is presented with a rare instance where certification of
the issue under Alaska Appellate Rule 407(a) is appropriate. Therefore, Plaintiff’s
motion to certify questions to the Alaska Supreme Court at docket 110 is granted as to
the common carrier issue. Plaintiff’s motion at docket 113 requesting that the common
carrier standard be applied here is denied without prejudice to renew pending the
Alaska Supreme Court’s certification decision.
IV. CONCLUSION
Based on the preceding discussion, the motions at docket 103 and docket 113
are denied without prejudice. The motion at docket 110 is granted as to the common
carrier question. The court’s order certifying the question to the Alaska Supreme Court
will follow.
DATED this 3rd day of March 2019.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
19921 A.2d 837 (Md. Ct. Spec. App. 2007).
20Id. at 841-44.
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