No. 03-05368-E.Commonwealth of Massachusetts Superior Court. SUFFOLK, SS.
November 3, 2005.
MEMORANDUM AND ORDER ON THIRD PARTY DEFENDANT CITY ELEVATOR, INC.’S MOTION FOR SUMMARY JUDGMENT
TROY, J.
Plaintiffs Daniel and Michelle McInnis have filed this action against Marilyn Root and the other trustees of the 220-222-224 Marlborough Street Condominium Association (“the condo association”). The condo association then filed a third party complaint against City Elevator, Inc. (“City Elevator”), alleging negligence. In their third party complaint, the condo association states that if Daniel McInnis was injured on an elevator at 222-224 Marlborough Street, as he alleges, the injury was caused by City Elevator’s negligence. Further, the condo association argues that if it is found liable to the plaintiffs, it is entitled to contribution or indemnification from City Elevator. On September 28, 2004, this court (Burnes, J.) allowed plaintiffs’ motion to amend their complaint to join City Elevator as a defendant. In their amended complaint, filed after the plaintiffs were allowed to join City Elevator as a defendant, the plaintiffs assert claims for negligence (Count V) and loss of consortium (Count VI) against City Elevator.[3]
Defendant City Elevator has moved for summary judgment, and asserts that because there is no evidence that City Elevator knew or should have known of a defective condition in the elevator where plaintiff was injured, it is entitled to summary judgment on these claims. For the following reasons, City Elevator’s motion for summary judgment is allowed.
BACKGROUND
The summary judgment record reveals the following facts. On December 13, 1996, City Elevator contracted with Boston Realty Works, Inc. (“BRW”) to provide regular service and monthly maintenance to the two passenger elevators located at 220-222-224 Marlborough Street in Boston. Each month, the maintenance consisted of a regular examination of the hoisting machine, motor, controller, governor, ropes, and any other major operating parts of the elevator; systematic lubrication of the equipment, including suitable lubricants; and minor adjustments.
On February 14, 2001, plaintiff Daniel McInnis began performing a remodeling job at a condominium on the fifth floor of 222-224 Marlborough Street. The job involved a complete demolition and remodeling of a bathroom, including removal of all old fixtures and installation of new fixtures, including a shower stall, tub, and sink. McInnis’s role was to supervise the various subcontractors he hired, as well as laborers, and oversee the entire project. The job lasted approximately four months. Eighty percent of the job was completed by May 14, 2001, the date of McInnis’s accident. Prior to that date, McInnis had visited the project and used the elevator approximately eight to twelve times. McInnis was advised by the condominium owners that he and the other workers were not allowed to use the elevator to transport building materials and tools for the project. McInnis was not always present when his employees and/or other subcontractors brought their supplies from the first floor to the fifth floor.
On the date of the accident, McInnis and his employee, Thomas Vargus, were posting notices around the building to provide residents with notice that the water was going to be shut off in the building due to plumbing work. They began by posting four notices in the lobby, and then proceeded to enter the elevator and rode it to the sixth floor. They stepped out of the elevator and posted a notice directly across from the elevator door. McInnis and Vargus re-entered the elevator and rode it to the fifth floor, and posted notices there. They repeated this process so that notices were posted on each floor of the building. As McInnis was exiting the elevator on the ground level, he tripped and fell. He alleges that the elevator stopped below the threshold and that there was an approximate four inch gap between the elevator floor and the ground floor. McInnis did not notice that the elevator had stopped below the threshold, and he tripped when exiting the elevator, sustaining injuries. Prior to this incident, McInnis had never noticed the elevator stopping short or above any floors, and never had any reason to contact the trustees or the owners of the building regarding any problems with the elevators. Further, he states that during the trip on the elevator prior to his accident, neither he nor Vargus hit the emergency stop switch or opened the gate prematurely.
City Elevator has submitted an affidavit from its president, John Finn. In it, he discusses the monthly service contract that City Elevator had with BRW, whereby City Elevator would perform regularly scheduled maintenance on the elevator at 222-224 Marlborough Street. He also states that in addition to this regular maintenance, City Elevator would respond to troubleshooting calls concerning this elevator. Finn states that the elevator where McInnis was injured is a “single speed elevator which travels at one hundred feet per minute and stops with a machine brake.” He states further: “The three main reasons a single speed car will not stop level with the floor are: (1) overloading; (2) turning the emergency stop switch off and/or opening the gate prematurely; and (3) mechanical or electrical problems.”
In his affidavit, Finn states that the only time City Elevator ever responded to a service call regarding the leveling of the elevator where McInnis was injured was in August 1998. The only other troubleshooting service call City Elevator received before McInnis’s accident was on January 12, 2001, when City Elevator was called because a passenger was stuck in the elevator. There was no leveling problem detected at that time.
Finn also states that City Elevator attended annual inspections of the elevator conducted by the Department of Public Safety, Board of Elevator Regulations. The last safety inspection before McInnis’s accident was performed on November 16, 2000. On this date, inspector ordered that some repair work was required on the elevator in question, but nothing which related to the leveling function.
City Elevator states that the first notice it received of McInnis’s accident was in July of 2004, when it was served with BRW’s third party complaint. In the interceding months, City Elevator had continued to perform monthly service on the elevator and did not detect any leveling problems.
DISCUSSION
The McInnises argue that City Elevator’s motion for summary judgment should be denied because there are genuine issues of material fact concerning City Elevator’s negligence and resulting liability for Daniel McInnis’s injuries. City Elevator argues that there is no evidence that it knew or should have known of the alleged defect in the elevator or failed to take any corrective action to remedy any alleged defect. In order to determine whether summary judgment should be allowed in this case, this court must examine whether the facts viewed in the McInnises’s favor would permit a reasonable jury to find that City Elevator’s negligence resulted in Daniel McInnis’s injury.
I. Summary Judgment Standard.
The court should grant summary judgment where there are no genuine issues of material fact and where the record entitles the moving party to judgment as a matter of law. See Mass. R. Civ. P. 56(c); Cassesso v.Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat’lBank v. Dawes, 369 Mass. 550, 553 (1976). A party moving for summary judgment who or which does not bear the burden of proof at trial may demonstrate the absence of a genuine dispute of material fact for trial either by submitting affirmative evidence negating an essential element of the non-moving party’s case, or by showing that the non-moving party has no reasonable expectation of proving an essential element of its case at trial. See Flesner v. Technical Communications Corp., 410 Mass. 805, 809
(1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716
(1991). It is necessary, however, for the summary judgment movant “to show by credible evidence from . . . affidavits and other supporting materials that there is no genuine issue of material fact and that [the party is] entitled, as matter of law, to a judgment.” Smith v.Massimiano, 414 Mass. 81, 85 (1993).
While summary judgment is seldom granted in negligence actions, it is appropriate “if no rational view of the evidence permits a finding of negligence.” Roderick v. Brandy Hill, Inc., 36 Mass. App. Ct. 948, 949
(1994). The question before this court is “whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.”Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991).
II. Plaintiffs’ Negligence Claims (Count V).
In negligence actions, “the plaintiff has the burden of proving each and every element of that claim: duty, breach of duty (or, the element of negligence), causation (actual and proximate) and damages.” Ulwick v.DeChristopher, 411 Mass. 401, 408 (1991). McInnis argues that by way of its contract to maintain the elevator, City Elevator had a duty “to refrain from negligent acts or omissions that would forseeably result in harm to persons using the elevator.” However, although City Elevator had contracted with the condo association to maintain the elevator, this fact alone did not make it an insurer of the perfect operation of the elevators. See Barry v. Boston Housing Auth., 4 Mass. App. Ct 860
(1976) (rescript).
McInnis has failed to put forth any evidence which would demonstrate that City Elevator knew or should have know of any defect with the elevator, and therefore has failed demonstrate an essential element of his negligence claim. According to the summary judgment record, the only time a leveling problem had been reported was almost three years prior to this incident, and the Board of Elevator Safety’s inspection of the elevator six months before this incident failed to reveal any leveling problems. “The fact that the elevator was defective at the time of the accident, without more, is not evidence of the defendant’s negligence.”Bernstein v. Highland Associates of Worcester, 1 Mass. App. Ct. 132, 135 (1973).
McInnis argues that the issue of City Elevator’s negligence must be submitted to a jury under the doctrine of res ipsa loquitur. In support of this argument, he cites John Finn’s affidavit on behalf of City Elevator stating that there are three main reasons why an elevator will not stop level to the floor: “(1) overloading; (2) turning the emergency stop switch off and/or opening the gate prematurely; and (3) mechanical or electrical problems.” McInnis states that at the time of his injury, the emergency switch had not been pressed, the gate had not been opened prematurely, and the elevator was not overloaded. He argues that on the basis of City Elevator’s own affidavit, the elevator’s failure to level was undoubtedly caused by mechanical or electrical problems, and it was City Elevator’s duty to repair such problems. As such, he argues that City Elevator is liable for negligence under the doctrine of res ipsa loquitur, because this accident is of the type that would not ordinarily happen in the absence of City Elevator’s negligence.
Even assuming that the elevator’s failure to level was caused by a mechanical or electrical problem, this court does not find that the doctrine of res ipsa loquitur is applicable to the facts of the present case. “In order to find liability on the basis of res ipsa loquitur, that is, on the basis of circumstantial evidence, . . . there must be an unusual occurrence or other circumstances from which a jury could reasonably find that the accident is of a kind that would not have happened in the ordinary course of events unless there was negligence by the defendant.” Osborne v. Hemingway Transport, 28 Mass. App. Ct. 944, 945 (1990). In a case with similar facts to the case at bar, the court declined to infer negligence on a res ipsa loquitur theory. In Bernstein
v. Highland Associates of Worcester, Inc., the plaintiff was injured after she tripped and fell as she emerged from an elevator which was not level with the floor. The plaintiff sued the company that had been contracted to maintain the elevator. The court stated that “the failure of the elevator to level with the floor . . . did not establish the cause of the plaintiff’s injury but simply created a condition upon which the plaintiff subsequently acted and was thereby injured. On these facts, the plaintiff is not relieved of her burden of proving that the proximate cause of her injury was negligence of the defendant; and she may not thrust this burden upon the shoulders of res ipsa loquitur.” Bernstein,1 Mass. App. Ct. at 133-134 (citations omitted).
The doctrine of res ipsa loquitur is inapplicable to the facts of this case, as “this is not a situation where it could be inferred that `there was a greater likelihood that the accident was due to [the defendant’s] negligence rather than to some other cause.'” Id. at 133, citingDiRoberto v. Lagasse, 336 Mass. 309, 311-312 (1957). Even indulging all inferences in favor of McInnis as the non-moving party, he has failed to demonstrate that he has a reasonable expectation of proving an essential element of his case at trial, that City Elevator’s negligence caused his injury. As such, City Elevator is entitled to summary judgment as to Count V of the plaintiffs’ complaint.
III. Loss of Consortium (Count VI).
Plaintiff Michelle McInnis has brought a claim for loss of consortium against City Elevator, which stems from the injuries discussed previously. This claim must fail because the foundation of this claim, that City Elevator’s negligence caused Daniel McInnis’s injury, does not survive summary judgment. See Mouradian v. General Elec. Co.,23 Mass. App. Ct. 538, 544 (1987), rev. denied 399 Mass. 1105
(1987). Although a spouse’s right to recover for loss of consortium is independent from the remedy for the injured spouse, Ferriter v. DanielO’Connell’s Sons, 381 Mass. 507, 529-530 (1980), any recovery for loss of consortium against City Elevator must be based on a claim that its negligence caused injury to a spouse. Mouradian,23 Mass. App. Ct. at 544. See also Agis v. Howard Johnson Co.,371 Mass. 140, 146 (1976).
As the plaintiffs have failed to demonstrate a reasonable expectation of proving at trial that City Elevator’s negligence caused Daniel McInnis’s injury, summary judgment as to Michelle McInnis’s claims for loss of consortium arising from those injuries is allowed.
ORDER
For the reasons set forth above, defendant City Elevator’s motion for summary judgment as to Counts V and VI of the plaintiffs’ complaint isALLOWED.