Opinion
No. 61522-0-I.
January 20, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-2-29445-9, Jay V. White, J., entered April 11, 2008.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
After Huong Tran was injured when her sandal got caught in an escalator at Sea-Tac Airport, she sued the Port of Seattle and Kone, Inc., for negligence. After presentation of the evidence, but before the case was submitted to the jury, the trial court dismissed Tran's claims. Because Tran failed to present any evidence that would permit a reasonable jury to find that the escalator was defective or that the Port and Kone breached a duty of care owed to Tran, the trial court properly dismissed Tran's claims under CR 50. Accordingly, we affirm.
FACTS
On June 12, 2004, Tran arrived at Sea-Tac Airport on a flight from Korea. After passing through immigration in the south satellite building, Tran rode an escalator, known as the SSH escalator, downstairs to claim her luggage and pass through the customs inspection. Tran's husband and son stood behind her on the escalator. The Port of Seattle owns and operates Sea-Tac Airport and contracts with Kone, Inc., for the maintenance of all escalators.
Tran was wearing "flip-flop" sandals and pulling a rolling carry-on suitcase. As she stepped off the escalator with her left foot and pulled the suitcase with her right hand behind her, Tran fell down suddenly after feeling "something pull my right foot downward and . . . a very painful cut." Tran looked back and saw that the escalator had stopped and that her sandal was caught between the step tread and the teeth of the comb plate.
Tran's husband and son moved her to the side of the escalator and waited for medical assistance. The accident severed a portion of Tran's right small toe and lacerated two other toes.
The step tread on the SSH escalator consists of three metal plates, each of which is 8 inches wide and 16 inches deep. The plates are secured to the escalator by machine screws.
Tran testified that the escalator was "normal" when she got on and "[e]verything seemed flat, just like a regular escalator." She also acknowledged that the step tread she stood on had all three pieces and was "complete." Tran was the only witness who observed the condition of the escalator before the accident.
Shortly after the accident, according to the Port's incident report, customs employees reversed the escalator to remove Tran's sandal and placed a section of the step tread to the side of the escalator. Tran's husband and son noticed that a middle plate was missing from the step tread after the accident. Darryl Thaut, a Port maintenance duty officer, testified that there was blood on a tread plate lying next to the escalator after the accident and on the step-off plate of the escalator.
Tran filed this negligence action against the Port and Kone on September 5, 2006, and trial began on March 3, 2008. At the conclusion of the evidence, the trial court dismissed Tran's claims under CR 50, ruling that the evidence was insufficient to permit a reasonable jury to find that the Port or Kone had been negligent.
DECISION
Tran contends that the trial court erred in dismissing her claims under CR 50. She argues that the evidence was sufficient to support an inference that the Port and Kone were negligent and to submit the doctrine of res ipsa loquitur to the jury.
The trial court may grant a motion for judgment as a matter of law under CR 50(a)(1) if, after viewing the evidence in the light most favorable to the nonmoving party, "there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party." The nonmoving party is entitled to the benefit of all favorable testimony and of all reasonable inferences drawn from that testimony. We review the trial court's decision de novo.
Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997).
Halder v. Dep't of Labor Indus., 44 Wn.2d 537, 542, 268 P.2d 1020 (1954).
Goodman v. Goodman, 128 Wn.2d 366, 371, 907 P.2d 290 (1995).
In order to establish a claim of negligence, the plaintiff must show (1) the existence of a duty, (2) breach of that duty, (3) resulting injury, and (4) proximate cause between the breach and the injury. Moreover, as the owner and operator of the escalator, the Port is a common carrier and therefore has a duty "`to exercise the highest degree of care consistent with the practical operation of its escalator to protect its passengers from the danger of injury from malfunctions or defects of which they knew or should have anticipated from facts and circumstances known to them.'"
Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220, 802 P.2d 1360 (1991).
Dabroe v. Rhodes Co., 64 Wn.2d 431, 433, 392 P.2d 317 (1964) (approving jury instruction). Tran has assigned error to the trial court's ruling that Kone was not a common carrier. But because Tran has not supported this assignment of error with any legal argument or citation of authority, we decline to consider it. See Fosbre v. State, 70 Wn.2d 578, 583, 424 P.2d 901 (1967) (assignments of error unsupported by argument are deemed abandoned).
Tran claims the jury could have found that the Port and Kone were negligent based on evidence that "the [middle] step tread plate was removed and placed aside days before and left at the bottom of the escalator." But Tran fails to identify any evidence that would support such an inference.
Tran herself was the only witness who observed the condition of the escalator before the accident, and she testified unequivocally that the step tread was complete and normal when she got on. Neither Tran's husband nor her son observed any defect before the accident. The only evidence on the issue indicated that the center tread plate, which was covered with blood, was removed and set aside shortly after the accident when workers reversed the escalator to extract Tran's sandal. Tran failed to submit any evidence indicating that the escalator was defective.
Moreover, Tran submitted no evidence suggesting that either the Port or Kone knew or should have known of some defect with the escalator. Maurice Audette, the Kone employee responsible for the maintenance of Sea-Tac Airport escalators, estimated that a Kone employee would inspect the SSH escalator at least every four days and that the escalator most likely would have been inspected on the day before the accident. Audette's testimony was uncontroverted, and Tran has not identified any evidence that the inspection, maintenance, and documentation procedures of either the Port or Kone violated any applicable duty of care.
See Dabroe, 64 Wn.2d at 433.
Tran also contends that the trial court erred in dismissing her claims under CR 50(b)(1) motion because the evidence was sufficient to support the doctrine of res ipsa loquitur. The res ipsa loquitur doctrine permits a circumstantial inference of negligence if the plaintiff establishes the following three criteria: (1) an incident that ordinarily does not occur unless someone is negligent, (2) the defendant's exclusive control over the agency or instrumentality causing the incident, and (3) the plaintiff did not voluntarily contribute to the injury-occurring incident. "Res ipsa loquitur is to be used sparingly and only in exceptional cases." Whether a party is entitled to employ the res ipsa loquitur doctrine is a question of law that we review de novo.
Pacheco v. Ames, 149 Wn.2d 431, 436, 69 P.3d 324 (2003).
A.C. v. Bellingham Sch. Dist., 125 Wn. App. 511, 517, 105 P.3d 400 (2004).
Pacheco, 149 Wn.2d at 436.
Tran does not even address the first requirement that she demonstrate her injury was of a kind that does not normally occur unless someone has been negligent. Washington courts have identified three situations that do not normally occur without negligence:
One, the act causing the injury is "palpably negligent," such as leaving foreign objects in a patient. Two, when general experience teaches that the result would not be expected without negligence. And, three, when proof by experts in an "exotic field" creates an inference that negligence caused the injury.
A.C., 125 Wn.2d at 517 n. 12 (citing Tinder v. Nordstrom, Inc., 84 Wn. App. 787, 793, 929 P.2d 1209 (1997)).
None of these situations is analogous to the incident that caused Tran's injury.
In Tinder v. Nordstrom we held that the sudden stop of an escalator was not the type of unusual situation that generally occurs only if someone has been negligent, noting that "[m]echanical devices, like escalators and elevators, can wear out or break without negligence." Nothing in the record suggests that given the design of an escalator and the nature of its moving parts, a shoe or article of clothing will generally not become lodged between the step tread and the comb plate of an escalator unless the escalator is defective or the operator negligent. Because Tran has made no showing that her injury was of a kind that generally occurs only as a result of negligence, the res ipsa loquitur doctrine does not apply.
84 Wn. App. 787, 793, 929 P.2d 1209 (1997).
In summary, Tran failed to submit any evidence that would permit a reasonable jury to find a defect with the SSH elevator or that the Port or Kone breached some duty of care owed to Tran. Nor did the evidence support application of res ipsa loquitur. Accordingly, the trial court properly dismissed Tran's negligence claims under CR 50.
Affirmed.