MONTGOMERY ELEVATOR COMPANY, a Delaware Corporation authorized to do business in the State of Colorado, Petitioner, v. Brenda GORDON, Respondent
Supreme Court of Colorado
619 P.2d 66; 1980 Colo. LEXIS 770
November 10, 1980
Plaintiff in the first instance Appellant in the second instance
Montgomery Elevator Company (Elevator maintenance company)
Defendant in the first instance Appellee in the second instance
Westinghouse Electric Corporation (Elevator manufacturer company)
Defendant in the first instance
Brenda Gordon was injured when she attempted to exit from an elevator in the Hilton Hotel in Denver, where ...view middle of the document...
So based on the doctrine of res ipsa loquitur, which adopted the contributory negligence, plaintiff had liability for her injury, so she failed in the first instance for her negligence.
The court of appeal reversed and remanded to the district court for a new trial, holding that the elements of res ipsa loquitur had been established with the adoption of comparative negligence.
The district court is affirmed. So both the appellant and appellee shared the responsibility according to the degree of their negligence.
Res ipsa loquitur.
1. The event is the kind, which ordinarily does not occur in the absence of negligence.
2. Other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence.
3. The indicated negligence is within the scope of the defendant's duty to the plaintiff.
4. The plaintiff is free from any contributory negligence or other responsibilities.
In a trial to the jury, Gordon relied solely on the doctrine of res ipsa loquitur to establish the defendants' negligence. Aside from the defendants' admissions in their answers and their opening statements, Gordon's testimony at trial was the only evidence presented on the negligence issue.
According to the evidence, the former three requirements are established. However, the court adopted forth requirement before the effective date of the comparative negligence on July 1, 1971; the court adopted the contributory negligence. The plaintiff can’t win this case because she had the contributive negligence for her injury.
The first element of res ipsa loquitur was applied, because appellee breached its duty.
The second element of res ipsa loquitur was applied, because appellee, rather than someone else, was more probably than not, responsible for the negligence.
The third element of res ipsa loquitur was applied, because the evidence shows that appellee had been responsible for the maintenance of the elevator since 1961, and a mechanic on duty “ practically all the time.” Therefore, absent introduction by the appellee of evidence to the contrary, it is more probable than not that the malfunction...