Present: Carrico, C.J., Compton, Stephenson, Whiting, 1 Lacy,
Hassell, and Keenan, JJ.
RONNIE D. PARKER
v. Record No. 942042 OPINION BY ELIZABETH B. LACY
September 15, 1995
ELCO ELEVATOR CORPORATION
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
In this negligence action, we review the rulings made by
the trial court initially sustaining the defendant's pre-trial
motion in limine and culminating in the entry of an order
granting the defendant's motion for summary judgment.
Ronnie D. Parker was riding in an elevator when it began
to descend at an excessive rate of speed, actuating a
multispeed governor which stopped the elevator abruptly. As a
result of the incident, Parker claimed that his back and knees
were injured. He was treated by several physicians and
ultimately he retired from his employment as a result of his
alleged injuries.
Parker filed a motion for judgment against Elco Elevator
Corporation, alleging that Elco was responsible for the
maintenance of the elevator and that its negligence resulted in
his injuries. Parker sought to recover damages for the pain
and suffering he experienced as a result of his injuries.
Because the accident occurred during the course of his
employment, Parker received reimbursement through his workers'
1
Justice Whiting participated in the hearing and decision of
this case prior to the effective date of his retirement on
August 12, 1995.
compensation coverage for both his lost wages and medical
expenses.
Following discovery, Elco filed a motion in limine seeking
the exclusion of certain evidence. Specifically, Elco sought
to exclude: (1) the testimony of Parker's treating physician
because Parker failed to identify the physician as an expert
within the agreed discovery period; (2) Parker's testimony
regarding his medical treatment and the cause of his injuries;
(3) Parker's medical bills; and (4) the testimony of William J.
Meese, offered by Parker as an expert on elevator maintenance
and safety.
Following argument of counsel, the trial court sustained
Elco's motion in limine in its entirety. Immediately
thereafter, Elco moved for summary judgment, arguing that
without expert testimony on the issue of elevator maintenance,
Parker could not present a prima facie case of negligent
maintenance and was not entitled to rely on the doctrine of res
ipsa loquitur. The trial court sustained this motion and
entered summary judgment in favor of Elco. We granted Parker's
appeal of these rulings and will reverse the judgment and
remand the case for further proceedings.
The trial court erred in at least three particulars.
First, the trial court erred in precluding Parker from
testifying as to the medical treatment he received and the
cause of his injuries. We have consistently held that "'lay
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testimony of causal connection between an automobile accident
and injury is admissible . . . even when medical testimony
fails to establish causal connection expressly.'" Todt v.
Shaw, 223 Va. 123, 127, 286 S.E.2d 211, 213 (1982) (quoting
Peterson v. Neme, 222 Va. 477, 483, 281 S.E.2d 869, 872
(1981)).
Next, the trial court erred in excluding Parker's medical
bills. The court's decision was based on Parker's failure to
identify the bills or the amount of the bills as elements of
his financial damage within the agreed discovery period.
Parker, however, argued that the medical bills were offered
solely to show that he was treated for physical injuries which,
he contends, supports his allegation that he endured pain and
suffering. Parker does not seek recovery for the amount of the
medical bills; rather, he seeks recovery for the pain and
suffering associated with the injuries he sustained.
Therefore, Parker was not required to identify the medical
bills as elements of financial damage when those bills were to
be used for this limited purpose.
Finally, the trial court erred in excluding the testimony
of Meese based on its finding that he "lacks scientific,
technical, or other specialized knowledge pertinent to the
issues of this case." The record reflects that the trial court
reached this decision based on Meese's testimony that he did
not know what caused the elevator's excessive speed of
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descent. 2 The trial court observed that this lack of knowledge
made Meese's testimony speculative and therefore precluded
Meese from appearing as an expert witness. However, lack of
this knowledge is fatal only if Parker's sole theory of
negligence was Elco's failure to correct the condition of the
elevator which allowed it to fall at an excessive rate of
speed. Parker's theory of Elco's negligence was not so
limited.
Parker also alleged that Elco was aware of two previous
incidents in which the multispeed governor was activated by an
overspeed condition. Relying on Otis Elevator Company v.
Tuerr, 616 A.2d 1254 (D.C. 1992), and Otis Elevator Company v.
Robinson, 287 F.2d 62 (5th Cir. 1961), Parker asserts that,
under these conditions, Elco was negligent in not removing the
elevator from service until the cause of the excessive speed
was identified and corrected. This theory of the case was not
dependant on knowledge of the specific elevator defect causing
the incident which allegedly resulted in injuries to Parker.
Therefore, Parker was entitled to present evidence to support
2
We note that the trial court relied without objection on
excerpts of Meese's discovery depositions as read into the
record by Elco's counsel. The ruling on this issue was
immediately followed by Elco's motion for summary judgment,
which was granted. Rule 3:18 prohibits the use of discovery
depositions "in whole or in part" in supporting a motion for
summary judgment absent agreement of counsel. See also Code
§ 8.01-420. In the absence of a clear objection to the use of
the discovery deposition in this manner, however, we review the
court's decision in the posture presented to us.
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his alternative negligence theory and to offer Meese as an
expert on this standard of care.
Furthermore, because Meese's competence was considered
based solely on excerpts from his discovery deposition, Parker
had no opportunity to establish Meese's qualifications through
voir dire. Under these circumstances, we conclude that the
trial court erred in excluding Meese from testifying as
Parker's expert on elevator maintenance and safety.
These errors require that the judgment of the trial court
be reversed and that the case be remanded for further
proceedings. In light of this disposition, Parker's remaining
assignments of error are moot and we need not address them.
Reversed and remanded.
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