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
INDIANA SUPREME COURT
SHAMBAUGH & SON, INC. and, )
KOORSEN PROTECTIVE SERVICE, INC., )
ABELL ELEVATOR INTERNATIONAL INC. ) 02S03-0010-CV-00602
Non-appealing Defendant, )
DAVID L. CARLISLE and )
MARY L. CARLISLE, )
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
In this personal injury case in which the plaintiff, David Carlisle,
See footnote 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
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
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
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'
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.
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
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.
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.
The other plaintiff, Mary Carlisle, seeks damages for loss of consortium due
to her husband David's injuries.