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RES IPSA LOQUITUR DOCTRINE MAY APPLY IN THIS ELEVATOR MALFUNCTION CASE (FIRST DEPT).

The First Department determined the res ipsa loquitur doctrine may apply to this elevator malfunction case and defendant’s motion for summary judgment was properly denied:

Summary judgment was properly denied in this action where plaintiff was injured when the elevator door in defendant’s building closed unexpectedly on her hand as she attempted to exit. Defendant has failed to establish, as a matter of law, that res ipsa loquitur is inapplicable to this case … . In order for the doctrine to apply, three elements must be established: 1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; 2) it must be cause by an agency or instrumentality within the exclusive control of defendant; and 3) it must not have been due to any voluntary action or contribution on the part of the plaintiff … . The rule has the effect of creating a prima facie case of negligence sufficient for submission to the jury, and the jury may -— but is not required to -— draw the permissible inference … . Here, plaintiff claims that she was injured while attempting to exit an elevator in defendant’s building, and that the elevator which malfunctioned was within the exclusive control of defendant. Elevator malfunctions are circumstances giving rise to the possible application of res ipsa loquitur to prove negligence … . Carter v New York City Hous. Auth., 2019 NY Slip Op 07722, First Dept 10-29-19

 

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COURT SHOULD HAVE INQUIRED OF JURORS WHETHER THEIR CONCERNS ABOUT NOT BEING... ALTHOUGH THE EXCUSE WAS INADEQUATE, THE CITY HAD ACTUAL NOTICE OF THE HOLE PETITIONER...