ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Dane L. Tubergen C. Richard Marshall
Hunt Suedhoff, LLP Columbus, Indiana
Fort Wayne, Indiana
Daniel A. Roby
Steven J. Moss Roby & Hood
Johnson Smith Pence & Heath LLP Fort Wayne, Indiana
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
SHAMBAUGH & SON, INC. and, )
KOORSEN PROTECTIVE SERVICE, INC., )
Defendants-Appellants, )
and )
ABELL ELEVATOR INTERNATIONAL INC. ) 02S03-0010-CV-00602
Non-appealing Defendant, )
)
v. )
)
DAVID L. CARLISLE and )
MARY L. CARLISLE, )
Plaintiffs-Appellees. )
________________________________________________
APPEAL FROM THE ALLEN CIRCUIT COURT
The Honorable Norman E. Baker, Judge
Cause No. 02C01-9610-CT-102
________________________________________________
On Petition To Transfer
March 1, 2002
DICKSON, Justice
In this personal injury case in which the plaintiff, David
Carlisle,[1] alleges injuries sustained while riding in an elevator, the
trial court denied motions for summary judgment filed by defendants
Shambaugh & Son, Inc., and Koorsen Protective Service, Inc., but granted
leave for an interlocutory appeal. The Court of Appeals accepted the
appeal and reversed, instructing the trial court to enter summary judgment
for the defendants. Shambaugh & Son, Inc. v. Carlisle, 730 N.E.2d 796
(Ind. Ct. App. 2000). We granted transfer, 741 N.E.2d 1257 (Ind. 2000),
thereby automatically vacating the Court of Appeals opinion, and we now
affirm the trial court.
The plaintiffs allege that David was injured when the ascending
elevator that he was taking abruptly reversed directions, causing him and
the wheelchair in which he was riding first to rise up off the floor and
then to drop back down, whereupon he landed on the head of his walking
cane, which had become lodged underneath him, causing injury. Defendant
Shambaugh & Sons, Inc., the electrical contractor, wired the building
during construction, and defendant Koorsen Protective Service, Inc.,
Shambaugh's subcontractor, supplied the fire alarm system and participated
in its installation. Abell Elevator International, Inc., which did not
seek summary judgment, manufactured and installed the elevator, and is the
maintenance contractor.
In their joint brief, appellants Shambaugh and Koorsen claim that the
trial court erred in denying their motion for summary judgment. They urge
that summary judgment should have been granted based on proximate cause or
res ipsa loquitur.
In an appeal involving summary judgment, the appealing party bears
the burden of persuasion, and we assess the trial court's decision to
ensure that the parties were not improperly denied their day in court.
Midwest Sec. Life Ins. Co. v. Stroup, 730 N.E.2d 163, 165 (Ind. 2000). We
analyze the issues, however, in the same way as a trial court would. Carie
v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind. 1999). A party seeking
summary judgment must show "that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." Ind.Trial Rule 56(C). The movant must designate
sufficient evidence to eliminate any genuine factual issues, and once the
movant has done so, the burden shifts to the nonmovant to come forth with
contrary evidence. See Butler v. City of Peru, 733 N.E.2d 912, 915 (Ind.
2000); Cavinder Elevators, Inc., v. Hall, 726 N.E.2d 285, 290 (Ind. 2000);
Mullin v. Mun. City of South Bend, 639 N.E.2d 278, 280-81 (Ind. 1994). The
court must accept as true those facts alleged by the nonmoving party,
construe the evidence in favor of the non-movant, and resolve all doubts
against the moving party. Ind. Univ. Med. Ctr. v. Logan, 728 N.E.2d 855,
858 (Ind. 2000); Nat'l City Bank v. Shortridge, 689 N.E.2d 1248, 1250 (Ind.
1997).
Part I.
The defendants first contend that the undisputed material facts
establish, as a matter of law, that no act of Koorsen or Shambaugh was the
proximate cause of David Carlisle's injuries. We initially observe that,
in the defendants' trial court motions for summary judgment and supporting
briefs, only defendant Koorsen raises the issue of causation. This issue
is asserted on appeal by the defendants' joint brief.
Ordinarily, the issue of proximate cause is not properly resolved by
summary judgment, but is better left to the jury. Hedrick v. Tabbert, 722
N.E.2d 1269, 1273 (Ind. Ct. App. 2000); Best Homes, Inc. v. Rainwater, 714
N.E.2d 702, 706 (Ind. Ct. App. 1999); Crull v. Platt, 471 N.E.2d 1211, 1214-
15 (Ind. Ct. App. 1984). But, where there is no issue of fact disputing
that the injuries could not have been reasonably foreseen due to the
unforeseeability of an intervening, superseding cause, summary judgment may
appropriately be entered in favor of the defendant. Hedrick, 722 N.E.2d at
1273; Best Holmes, 714 N.E.2d at 706; Crull, 471 N.E.2d at 1214-15.
The parties agree as to a substantial body of facts in this case.
When the building's fire alarm system detects a fire or potential fire, the
elevators are placed in "fire service mode" whereby they would reverse
direction, if necessary, proceed to a floor designated by the system, and
lock the elevator doors in the open position at that floor. It was
foreseeable to the defendants that a fire alarm signal would cause this
intended result. Shortly before David Carlisle went to use an elevator in
the basement of the building, two adjacent elevators were signaled by the
fire alarm system. When they arrived at the basement, the left elevator
was "captured" by the elevator electronics system, but the right elevator
was not. After attempting to use the left elevator, the plaintiff entered
the elevator on the right, which had just arrived at the basement. The
doors closed and the elevator began to ascend. At the first floor, it
stopped and opened for another passenger. As the elevator approached the
second floor, it suddenly reversed direction and abruptly descended,
causing the plaintiff and the wheelchair in which he was riding to rise off
the elevator floor and then to drop down, colliding with the floor,
resulting in his injuries when he landed on his walking cane that had
fallen into the wheelchair. The elevator proceeded to the basement where
the doors opened a few inches and then slammed shut, and the elevator
ascended upwards to the second floor, where the doors opened and the
plaintiff exited.
The defendants contend that, "[r]egardless of whether or not
Shambaugh and Koorsen were negligent in the installation of the fire alarm
system . . . or whether or not a false fire alarm signal was transmitted to
the elevator . . ., no act of Shambaugh or Koorsen, whether negligent or
not, was a proximate cause of any injury sustained by Carlisle." Joint Br.
of Appellants at 7. At trial, the basis of Koorsen's argument was that
"[t]he fire alarm equipment supplied by Koorsen was not in the chain of
causation of this incident." Record at 213. In asserting its claimed lack
of proximate cause, Koorsen's supporting brief presents two contentions:
(1) that "even if the fire alarm system had malfunctioned . . ., the system
still did not have control over the elevator's movement," and (2) any chain
of causation was broken by the elevator malfunction as an intervening cause
unforeseeable to Koorsen. Record at 213-14. The defendants' joint brief
argues that the plaintiff's injuries were proximately caused by the
malfunction of the elevator and not by the defendants or the fire alarm
system. Although not specifically identified in their brief, the
defendants appear to be referring to two possible elevator malfunctions.
One is the failure of the elevator system, once operating in fire service
mode, to capture the right elevator and prevent it from ascending. The
other is the elevator's manner of reversing direction and its rate of
descent in fire service mode. The defendants urge that it was not
reasonably foreseeable that bodily injury could result from the
transmission of a fire alarm signal, whether false or real. They argue
that the elevator system malfunctions were unforeseeable intervening causes
of the alleged injuries.
The plaintiffs agree that the elevator in fire service mode should
have been initially "captured" and "frozen" in the basement such that it
would not have ascended in the first place. But they emphasize their
contention that after the elevator left the basement, it received an
additional false alarm signal that caused the sudden, unexpected, and
unnecessary reversal of the elevator. The affidavit of the plaintiffs'
expert witness asserted that before the incident there had been several
incidents of brief bursts of inappropriate and undesirable electrical
energy in the fire alarm system wiring that triggered false alarms causing
the elevators to go into fire service mode. The expert opined that induced
voltage resulting from the installation of the fire alarm system wiring in
the same conduit and immediately adjacent to much higher voltage lines
caused the elevators to falsely go into fire service mode. It is his
opinion that the unexpected elevator directional reversal that injured
David Carlisle was likely produced, in part, by "a false fire alarm signal
(caused by induced voltage) sending the elevator (which was going up) into
a 'fire service mode,' thereby unexpectedly reversing the elevator's upward
travel and taking it down to the basement." Record at 311.
Accepting the plaintiffs' evidence, as we must for summary judgment
purposes, we cannot find that the failure of the elevator system to capture
the elevator severs the proximate causation element of the plaintiffs'
claims. Whether the reversal of direction occurred in a normal elevator
ascension or in one following the elevator system's failure to capture and
hold the elevator, it was nevertheless precipitated by the false signal
from the fire alarm system and produced a reversal of direction and descent
foreseeable to the defendants. Even if the failure to capture constituted
an intervening and superseding cause as to the initial false fire alarm
that caused the elevators to go to the basement, the capture malfunction
did not interrupt and sever the proximate cause relation between the
subsequent false alarm signal that caused the elevator to abruptly reverse
direction and descend, causing the resulting injuries.
The defendants do not identify any evidence in the record, and we
find none, to establish that the elevator's manner of reversal of direction
and rate of descent in fire service mode was abnormal and unforeseeable.
And even if it was, the record indicates that, prior to the incident in
which David Carlisle was injured, there had been several previous reports
of this elevator unexpectedly going into fire service mode, resulting in a
sudden reversal of direction and rapid descent, causing other elevator
passengers to experience a falling sensation. The defendants, as parties
moving for summary judgment, have not established their lack of actual or
constructive knowledge of these incidents. They have thus not shown that
the elevator's operation in fire service mode severed the proximate
causation connecting the second false fire alarm signal and the plaintiffs'
injuries.
For these reasons, the defendants have failed to establish the
absence of any material issue in the plaintiffs' claim that the defendants'
acts proximately caused David Carlisle's injuries. The trial court did not
err in denying summary judgment on the issue of proximate causation.
Part II.
The defendants also contend that they are entitled to summary
judgment because the plaintiffs are relying on a theory of res ipsa
loquitur and because the uncontroverted facts establish that neither
Koorsen nor Shambaugh had exclusive control over the elevator. The
plaintiffs respond that, while they rely in part upon res ipsa loquitur,
they separately assert a claim based on specific negligent acts of the
defendants. The plaintiffs further oppose summary judgment by asserting
that the evidentiary materials present a genuine issue of fact as to
whether the defendants were in exclusive control of the wiring, which was
part of the injuring instrumentality and whether the defendants' negligent
installation of the wiring caused a false fire alarm, thus entitling them
to rely on res ipsa loquitur.
The plaintiffs' complaint arguably identifies two theories of
recovery, specific negligence and negligence inferred from res ipsa
loquitur:
5. That on and before October 27, 1994, Defendants had carelessly and
negligently performed their
installation/inspection/service/maintenance/repair work and, as a
result thereof, Plaintiff was injured and damaged; that this elevator
incident was one of the type that does not ordinarily occur unless the
parties in control of the elevator and its mechanisms were negligent.
Record at 20. The plaintiff David Carlisle's interrogatory answers
repeatedly specify that he "will be relying, in part, upon res ipsa
loquitur " and upon the opinions of a named expert whose opinions will be
formulated upon completion of discovery. Record at 196-201 (emphasis
added).
In its motion for summary judgment, defendant Shambaugh asserts that
there is no genuine issue of fact as to two issues: "Shambaugh was not
responsible for the maintenance, repair, inspection, service, cleaning or
any other service aspect for the elevators installed at the IUPUI SET III
Building or its fire alarm system," and "a fire alarm system has no
capacity to control, change or govern the speed, direction, acceleration or
deceleration of elevator cars." Record at 34. Shambaugh's brief in
support of motion for summary judgment begins by alleging that "the
undisputed facts demonstrate that [plaintiff] has failed to show that
Shambaugh carelessly or negligently performed any duty." Record at 90.
But Shambaugh's supporting brief then proceeds to discuss the designated
evidence only with respect to res ipsa loquitur, and does not specifically
identify any evidence to establish the absence of a determinative material
fact as to the plaintiffs' claims of specific negligence.
Similarly, except for the issue of causation, discussed in Part I
above, and res ipsa loquitur, defendant Koorsen's motion for summary
judgment and supporting brief similarly do not attempt to foreclose the
plaintiffs' claims of specific negligence.
Because Shambaugh and Koorsen do not carry their burden as parties
seeking summary judgment to eliminate any determinative factual issues as
to plaintiffs' claims of specific negligence, the plaintiffs need not come
forward to establish the existence of a genuine issue for trial on its
theory of specific negligence. Butler, 733 N.E.2d at 915. The motion for
summary judgment was thus improperly granted. The defendants do not argue
that the trial court erred in failing to grant partial summary judgment on
the issue of res ipsa loquitur, and we decline to address the issue.
Conclusion
Because the defendants have not established that there is no genuine
issue as to any material fact and that they are entitled to a judgment as a
matter of law, we affirm the trial court's denial of summary judgment.
SHEPARD, C.J., and BOEHM and RUCKER, J.J., concur.
SULLIVAN, J., not participating.
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[1] The other plaintiff, Mary Carlisle, seeks damages for loss of
consortium due to her husband David's injuries.