FOR PUBLICATION                                             Jul 11 2013, 8:22 am




ATTORNEY FOR APPELLANT:                    ATTORNEYS FOR APPELLEE/GEPA:

MELISSA A. DAVIDSON                        THOMAS C. HAYS
Charles D. Hankey Law Office               VALERIE L. HUGHS
Indianapolis, Indiana                      Lewis Wagner, LLP
                                           Indianapolis, Indiana

                                           ATTORNEYS FOR APPELLEE/SCHINDLER:

                                           BENJAMIN D. ICE
                                           WILLIAM A. RAMSEY
                                           Murphy Ice & Koeneman LLP
                                           Fort Wayne, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

CECILIA KELLY,                             )
                                           )
      Appellant-Respondent,                )
                                           )
             vs.                           )     No. 49A04-1210-CT-509
                                           )
GEPA HOTEL OWNER INDIANAPOLIS              )
LLC, GEPA HOTEL OPERATOR                   )
INDIANAPOLIS LLC, AND SCHINDLER            )
ELEVATOR CORPORATION,                      )
                                           )
      Appellees-Petitioners.               )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Thomas J. Carroll, Judge
                           Cause No. 49D06-1001-CT-2415
                                      July 11, 2013

                 MEMORANDUM DECISION - FOR PUBLICATION

PYLE, Judge


                             STATEMENT OF THE CASE

       Cecilia Kelly (“Kelly”) appeals the trial court’s grant of summary judgment in

favor of GEPA Hotel Owner Indianapolis, LLC, GEPA Hotel Operator, LLC

(collectively “GEPA”), and Schindler Elevator Corporation (“Schindler”).

       We reverse.

                                         ISSUE

       Whether the trial court erred in granting summary judgment in favor of
       GEPA and Schindler.

                                         FACTS

       On February 29, 2008, Kelly, Barbara Williams (“Williams”), and Greta Harrison

(“Harrison”) attended a church function at a Hilton Hotel in Indianapolis. After the event

ended, the women, escorted by Henry Perry (“Perry”), went to the nineteenth (19 th) floor

to visit the speaker for the evening. Once the elevator arrived at the 19th floor, everyone

began to exit. As Kelly exited, the elevator moved and the heel of her shoe became

caught in the gap between the elevator and the floor, causing her to stumble; her foot

came out of her shoe. Kelly injured her knee because of the incident. Williams was

already off the elevator and did not see it move. Williams did hear sounds come from

Kelly and what Williams thought was the elevator. Harrison said that she heard the
elevator “jar” and saw Kelly fall. (Appellant’s App. 88). Perry felt the elevator move

and had to pull Kelly’s shoe out of the gap between the elevator and the 19th floor.

       On January 19, 2010, Kelly filed a lawsuit in the Marion County Superior Court

against GEPA and Schindler alleging that they were negligent in the inspection and

maintenance of the subject elevator. After discovery and depositions, Schindler moved

for summary judgment on January 5, 2012, claiming that Schindler, as a matter of law,

did not breach a duty to Kelly or cause her injuries. In support of their motion for

summary judgment, Schindler designated GEPA’s answers to interrogatories from

Schindler and Kelly, depositions from Kelly and Williams, and an affidavit from John

Gieske (“Gieske”), GEPA’s Director of Engineering. Schindler argued that Kelly simply

stepped into the gap between the elevator and the 19th floor. Gieske’s affidavit stated that

the gap was necessary for the elevator to operate and that the gap had not been altered

since the building opened in 1971. On January 6, 2012, GEPA filed a motion joining

Schindler’s motion for summary judgment. In joining Schindler’s motion for summary

judgment, GEPA incorporated all arguments and designations of evidence made by

Schindler.

       On March 5, 2012, Kelly responded to both defendants, designating the expert

testimony of Joseph Stabler (“Stabler”) as evidence that created genuine issues of

material fact to preclude summary judgment. The trial court granted Schindler and

GEPA time to reply so that they could depose Stabler. At Stabler’s deposition, he

testified that he conducted an inspection of the elevator on January 26, 2011. During his

inspection, Stabler found that the metal threshold sill on the elevator was loose and tilted
forward when he applied pressure. Stabler also reviewed maintenance records provided

by Schindler and elevator logs kept by GEPA. GEPA’s elevator logs revealed three (3)

incidents between 2007 and 2008 where the elevator stopped between three (3) to eight

(8) inches above the 19th floor. Stabler concluded that based on his inspection of the

maintenance records and hotel logs, Schindler and GEPA did not regularly inspect the

threshold sill. Stabler also stated that the elevator’s motion controller and positioning

device were defective, causing the elevator to move as Kelly was exiting to the 19th floor.

       On July 17, 2012, Schindler filed a motion to strike the affidavit of Stabler,

arguing Stabler’s opinions were not reliable under Ind. Evidence Rule 702. GEPA again

joined Schindler’s motion. On October 9, 2012, the trial court entered a general order

granting the motion to strike and entered summary judgment in favor of Schindler and

GEPA. Kelly filed her notice of appeal on October 11, 2012.

                                        DECISION

       In appealing the grant of Schindler and GEPA’s motion for summary judgment,

Kelly claims that the trial court erred when it struck the affidavit of her expert. Kelly

contends that Stabler’s opinions on the elevator car’s threshold sill and positioning

device, as well as his opinions establishing the theory of res ipsa loquitur, create genuine

issues of material fact as to whether Schindler and GEPA breached their duty to Kelly

and whether the elevator’s alleged malfunction proximately caused her injuries.

Schindler and GEPA argue that the foundations for Stabler’s opinions are unreliable.

       The decision to admit or exclude evidence is within the discretion of the trial

court, and this court reviews the trial court’s decision for an abuse of discretion.
Lachenman v. Stice, 838 N.E.2d 451, 464 (Ind. Ct. App. 2005), trans. denied. An abuse

of discretion occurs if the trial court’s decision is clearly against the logic and effect of

the facts and circumstances before it, or the reasonable, probable, and actual deductions

to be drawn therefrom. Id.

       Indiana Evidence Rule 702(a) provides:          “If scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education, may testify thereto in the form of an opinion or otherwise.”

              To establish an expert’s qualifications, only one characteristic—
       knowledge, skill, experience, training, or education—is required, so an
       affiant may qualify as an expert based on practical experience alone. In
       addition, the proponent of expert testimony must show that the subject
       matter is distinctly related to some scientific field, business, or profession
       beyond the knowledge of the average [layperson]. Where an expert’s
       testimony is based upon the expert’s skill or experience rather than on the
       application of scientific principles, the proponent of the testimony must
       only demonstrate that the subject matter is related to some field beyond the
       knowledge of lay persons and that the witness possesses sufficient skill,
       knowledge or experience in the field to assist the trier of fact.


Jackson v. Trancik, 953 N.E.2d 1087, 1092 (Ind. Ct. App. 2011) (internal citations

omitted). “It is apparent that Indiana Evidence Rule 702 assigns to the trial court a

‘gatekeeping function’ of ensuring that an expert’s testimony both rests on a reliable

foundation and is relevant to the task at hand.” Lytle v. Ford Motor Co., 814 N.E.2d 301,

308 (Ind. Ct. App. 2004), trans. denied.

       Stabler’s opinion that the threshold sill on the elevator was loose on February 29,

2008 is based upon his inspection and Kelly’s testimony that the heel of her shoe slid into
the gap between the elevator and the floor when the elevator moved upon her exit.

Further, maintenance records from Schindler and GEPA show little to no inspection of

the threshold sill in the elevator, especially in the timeframe before and immediately after

Kelly’s incident. Schindler and GEPA’s argument goes more to the weight a fact-finder

would give Stabler’s theory at trial instead of its admissibility.

       As to the positioning device, Stabler relied on the fact that the elevator had three

(3) incidents which he claims are similar to the one on February 29, 2008. One occurred

April 7, 2007, where the elevator stopped six (6) inches above the 19th floor. Another

occurred on January 20, 2008, where the elevator was stuck three (3) inches above the

19th floor. Finally, the last incident Stabler relied on occurred on March 3, 2008, where

the elevator was stuck eight (8) inches above the 19th floor. Schindler and GEPA argue

that these events are not similar because there is no evidence that anyone was injured in

the same manner as Kelly.

       “In cases involving the existence of an alleged dangerous condition[,] evidence of

the occurrence of prior accidents of a similar character under the same circumstances is

admissible to show both the existence of the dangerous condition and notice thereof.”

State by and Through Ind. State Highway Comm’n v. Fair, 423 N.E.2d 738, 740 (Ind. Ct.

App. 1981).     Such evidence is not admissible unless the plaintiff shows similarity

between the essential conditions surrounding the prior accidents and the one at issue. Id.

A proper foundation includes the general requirements of similarity of conditions,

reasonable proximity in time, and avoidance of confusion of the issues. Id. at 741.
       Here, the occurrences Stabler relies upon happened on the same elevator over a

period of ten (10) months and one (1) month before, and three (3) days after Kelly’s fall

on February 29, 2008. Stabler testified that these events were similar to Kelly’s incident

because they were all incidents of the elevator not positioning correctly at the 19 th floor

and their cause was the motion control panel. While we agree with Schindler and GEPA

that the incident three (3) days after Kelly’s fall would not be admissible to show notice,

it is certainly relevant to showing a potential malfunction with the elevator. Stabler’s

reliance on these incidents are further bolstered by maintenance records provided by

Schindler, which reveal that the components Stabler believes caused the elevator’s

malfunction were not regularly inspected by Schindler. Again, Schindler and GEPA’s

arguments go more to the weight a fact-finder would give Stabler’s conclusions at a trial

and not their admissibility. Therefore, Stabler’s reliance on these incidents to formulate

his opinion was not improper.

       Kelly further claims that Stabler’s testimony allows for the doctrine of res ipsa

loquitur to apply in this case.

               The doctrine [of res ipsa loquitur] literally means the thing speaks
       for itself. Res ipsa loquitur is a rule of evidence which permits an inference
       of negligence to be drawn based upon the surrounding facts and
       circumstances of the injury. The doctrine operates on the premise that
       negligence, like any other fact or condition, may be proved by
       circumstantial evidence. To create an inference of negligence, the plaintiff
       must establish: (1) that the injuring instrumentality was within the exclusive
       management and control of the defendant or its servants, and (2) that the
       accident is of the type that does not ordinarily happen if those who have the
       management and control exercise proper care. In determining if the
       doctrine is applicable, the question is whether the incident more probably
       resulted from [the] defendant’s negligence as opposed to another cause. To
       invoke res ipsa loquitur, the plaintiff must demonstrate that the defendant
       had exclusive control of the injuring instrumentality at the time of the
       injury. Exclusive control is an expansive concept[,] which focuses upon
       who has the right or power of control and the opportunity to exercise it.
       The existence of multiple defendants or the possibility of multiple causes
       does not automatically defeat the application of res ipsa loquitur.

Rector v. Oliver, 809 N.E.2d 887, 890 (Ind. Ct. App. 2004) (internal citations and

quotations omitted), trans. denied. Schindler and GEPA argue that res ipsa loquitur does

not apply because Schindler was not in exclusive control of the elevator at the time of the

incident and that Stabler’s testimony itself establishes that the doctrine cannot apply. We

disagree.

       First, we note that Schinlder’s argument on control focuses on physical control of

the elevator. As stated in Rector, control in regards to res ipsa loquitur is more than

physical control; the focus is on “the right or power of control and the opportunity to

exercise it.” Id. Here, where Kelly’s allegation is negligent inspection and maintenance

of the elevator, the only party with the power or opportunity to inspect and maintain the

motion controller and positioning device of the elevator is Schindler. At his deposition,

Stabler testified that a well-maintained elevator can malfunction. However, Stabler’s

ultimate conclusion is that Schindler did not reasonably inspect and maintain the elevator.

Stabler’s education and experience allows him to opine that Kelly’s fall does not occur if

Schindler reasonably inspects and maintains the elevator.        Finally, notwithstanding

Schindler and GEPA’s claim that Kelly simply stepped into the gap between the elevator

and the 19th floor, the evidence in the record allows for the inference that the accident
happened more probably from Schindler and GEPA’s negligence than any other cause.

Res ipsa loquitur can apply in this case.1

        Kelly has laid the proper foundation for the admissibility of Stabler’s opinion

under Evid. R. 702. “Once the admissibility of the expert's opinion is established under

Rule 702, then the accuracy, consistency, and credibility of the expert's opinions may

properly be left to vigorous cross-examination, presentation of contrary evidence,

argument of counsel, and resolution by the trier of fact.” Bennett v. Richmond, 960

N.E.2d 782, 786 (Ind. 2012) (internal citation and quotation marks omitted).

Accordingly, we find that the trial court abused its discretion in striking Stabler’s

opinion.

        Summary judgment is appropriate only where the designated evidence shows “that

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Ind. Trial Rule 56(C). Summary judgment is rarely

appropriate in negligence cases. Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004).

“This is because negligence cases are particularly fact sensitive and are governed by a

standard of the objective reasonable person—one best applied by a jury after hearing all

of the evidence.” Id. To prevail on a claim of negligence the plaintiff must show: (1)

duty owed to the plaintiff by defendant; (2) breach of duty by allowing conduct to fall

below the applicable standard of care; and (3) compensable injury proximately caused by




1
  “This also does not mean that the plaintiff wins by default, for the doctrine of res ipsa loquitur simply
allows an inference of negligence which may or may not be drawn by the trier of fact.” Rector, 809
N.E.2d at 890. The defendant can rebut this inference, like any other inference, with relevant evidence.
defendant’s breach of duty. Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810 (Ind.

2007).

         Here, both of the parties frame their argument around the position that expert

testimony was required to advance Kelly’s claim and is dispositive to our analysis.

Having found that the trial court should have admitted Stabler’s affidavit, Schindler and

GEPA still assert that, even with Stabler’s affidavit, they were not placed on notice of the

malfunction of the elevator and therefore are not subject to liability. Schindler claims

that because it performed maintenance on the elevator a month prior to Kelly’s fall and

was not notified of problems, it was not on notice of a defective motion controller.

Again, we disagree.

         “Whether a particular act or omission is a breach of duty is generally a question of

fact for the jury. Northern Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind. 2003).

It can be a question of law where the facts are undisputed and only a single inference can

be drawn from those facts.” Id. With the allegations being negligent inspection and

maintenance, a juror could reasonably conclude, based on Stabler’s opinion, that a more

careful inspection of the elevator on the two incidents prior to Kelly’s fall would have

revealed a defect in the motion controller. Accordingly, we reverse and remand for

further proceedings consistent with this opinion.

         Reversed and remanded.

ROBB, C.J., and MAY, J., concur.
