Wе are called upon once again to analyze the multifarious doctrine of
res ipsa loquitur.
As Chief Judge Orth once exclaimed for the Court of Special Appeals, “[e]ver since 1863 when a barrel of flour rolled out of a warehouse window in England and injured a person passing on the public street, the thing has been attempting to speak for itself....”
C & P Tel. Co. v. Hicks,
In the case before us, we shall address the theory of res ipsa loquitur in the context of injuries sustained by the plaintiff, David Swann, as a result of an allegedly misleveled 1 elevator car. The two issues presented by the defendant-petitioner, Dover Elevator Company, are summarized as follows:
*234 1. May the plaintiff, who has proffered direct evidence of the specific cause of his injuries, also rely on the doctrine of res ipsa loquitur in order to establish the defendant’s negligence?
2. If res ipsa loquitur was an appropriate basis for finding the defendant negligent, did the trial judge err in failing . to so instruct the jury and, if so, was that error harmless?
For the reasons stated below, we shall reverse the decision of the Court of Special Appeals.
See Swann v. Prudential Ins.,
I. Facts
The plaintiff, David Swann, was injured on February 2, 1987, while attempting to board an elevator that allegedly failed to level properly with the floor. The elevator (designated “elevator number two”) is in an office building located at 2277 Research Boulevard in Rockville, Maryland. The building is owned by Prudential Insurance Company of America, managed by Carey Winston Company and leased by IBM, Swann’s employer and the building’s sole tenant. Elevator number two was manufactured, installed and exclusively maintained by the petitioner, Dover Elevator Company. With the exception of IBM, all of the above-listed organizations were named as defendants in this action.
Upon entering elevator number two, Swann stumbled (but did not fall) and struck his back on the rear wall of the elevator car. The elevator was allegedly “[s]omewhere around a foot” or “[s]omewhat greater than about a foot” lower than the level of the floor from which Swann entered the elevator. At the time Swann entered the elevator car, he was conversing with a coworker, Murtha Donovan, Jr. According to Donovan, Swann did not see the level of the elevator car as he entered it because the two coworkers were looking at each other as they conversed. Donovan entered the elevator car immediately after Swann without incident.
On November 21, 1988, Swann filed a complaint against Prudential Insurance Company of America and Dover Eleva *235 tor Company in the Circuit Court for Montgomery County, Maryland. The complaint alleged that Swann suffered $3,000,000.00 in damages as a result of the defendants’ negligence and defects in the design, manufacture, installation and maintenance of elevator number two. By an amended complaint, Swann included Carey Winston Company as a defendant in the action. The product liability claim was later dismissed as to all the defendants and а two-week jury trial on the negligence claims was held in January, 1992.
At trial, Swann offered the expert testimony of Donald Moynihan, an elevator consultant and engineer. Mr. Moynihan testified that he conducted an inspection of elevator number two and the machine room in December, 1990. He also testified that he reviewed all of Dover’s available maintenance records. These records indicated service calls to correct misleveling problems with elevator number two on various dates from December, 1986 to February, 1987. Ronald Bothell was the mechanic who maintained and serviced elevator number two for Dover.
The specific negligence alleged by Moynihan’s testimony was as follows: 1) Dover was negligent in filing and cleaning, as opposed to replacing, contacts 14 and 15 on elevator number two, resulting in a faulty current and the misleveling; 2) Dover was negligent by failing to spend adequate time servicing the elevator; 3) Dover’s maintenance records were deficient; and 4) Dover failed to properly stock replacement parts in the elevator’s machine room. Swann contends the elevator’s misleveling was probably caused by an irregular current running between the number 14 and 15 contacts. The importance of this contention was explained by the Court of Special Appeals: “Although [Dover’s Maintenance] Agreement specifically excludes several elevator components and associated systems, the component that Swann contends caused the misleveling, the 14 and 15 contacts’, was not excluded.”
Swann,
Following a trial on the merits, the jury returned a verdict in favor of all the defendants. Swann appealed to the Court of
*236
Special Appeals, which affirmed the verdict as to Prudential and Carey Winston, but reversed the verdict as to Dover. Swann,
II. Analysis of the Res Ipsa Loquitur Doctrine
Res ipsa loquitur
is applied in negligence actions as a permissible inference that literally means “the thing speaks for itself.”
Benedick v. Potts,
“ “T. A casualty of a sort which usually does not occur in the absence of negligence.
*237 2. Caused by an instrumentality within the defendant’s exclusive control.
3. Under circumstances indicating that the casualty did not result from the act or omission of the plaintiff.” ’ ”
Meda,
A plaintiffs reliance on
res ipsa loquitur
is generally necessitated, therefore, by the fact that direct evidence of negligence is either lacking or solely in the hands of the defendant. As stated by this Court in
Peterson v. Underwood,
The dilemma between the doctrine of
res ipsa loquitur
and offering direct evidence of negligence is best summarized by the oft-quoted discussion in
Hickory Transfer Co. v. Nezbed, 202
Md. 253,
“In this case the plaintiffs themselves proved the details of the happening, foregoing reliance on res ipsa loquitur; and, having undertaken to prove the details, they failed to show negligence on the part of the defendants. Indeed, they explained away the possible inference of negligence. Paradoxically, the plaintiffs proved too much and too little.”
*238
In addressing this question, the Court of Special Appeals preliminarily acknowledged that, “ ‘if there is direct evidence of negligence, and all the facts causing the injury are known and testified to by witnesses at the trial,’ ” there is no basis for the appliсation of
res ipsa loquitur. Swann,
“ ‘If the plaintiff has circumstantial evidence which tends to show the defendant’s negligence (and which is therefore consistent with the inference relied upon in res ipsa loquitur) he should not as a matter of policy be discouraged from coming forth with it. If, however, the evidence introduced by the plaintiff or the defendant shows that everything relative to the case is known, and that the injury might have been caused by something other than defendant’s negligence (thereby negating the inference normally relied upon in res ipsa loquitur), then the plaintiff will not be allowed to avail himself of the doctrine. In such a case, if plaintiffs proof fails to make out a prima facie case of negligence then it is proper to direct a verdict for the defendant.’ ” (Emphasis in original and emphasis deleted).
Swann,
Nonetheless, the Court of Speciál Appeals in the instant case held that “Swann’s attempt to prove specific acts of
*239
negligence did not prevent him from requesting that the jury be instructed on both negligence and
res ipsa loquitur” Swann,
“Swann did not, however, purport to furnish a complete explanation of the accident. Indeed, Swann offered evidence establishing that Dover responded to reports of mislevelings on two separate occasions following the January 7th repair [when contacts 14 and 15 were filed]. There was no evidence of what, if any, corrective measures Dover took on those dates. It may well be that Dover negligently repaired the elevator on one, or both, of those occasions and such negligent act or acts caused the February 2nd misleveling incidеnt. Further, at the close of the evidence, there was a dispute as to what caused the accident. Bothell testified that it was proper to clean, rather than replace, the 14 and 15 contacts, and that the door clutch mechanism prevents the elevator doors from opening when the elevator cab is greater than an inch or two from floor level. Therefore, ‘reasonable men might [have] differ[ed] as to the effect of the evidence before the jury.’ ”
Swann,
We find that the plaintiffs expert witness, Donald Moynihan, did purport to furnish a sufficiently complete explanation of the specific causes of elevator number two’s misleveling, which would preclude plaintiffs reliance on res ipsa loquitur. Mr. Moynihan’s trial testimony was based upon his review of all the defendant’s maintenance records regarding the work done on elevator number two, in addition to his on-site inspections of the elevator and machine room. Pertinent portions of that testimony consisted of the following:
*240 “[PLAINTIFF’S COUNSEL:] Mr. Moynihan, I would like you to look at what has been marked for identification as Plaintiffs Exhibit 47. Is this a blowup of the time and repair order and certificate of time for 1/7/87 that you are looking at?
[MOYNIHAN:] That is correct, sir.
******
[PLAINTIFF’S COUNSEL:] Now, Mr. Moynihan, can you tell from your review of this document what was being done by Mr. Bothell on that occasion; that is, January 7, 1987?
[MOYNIHAN:] Yes. On this document it reads, ‘Car number 2 wasn’t leveling. Cleaned 14 and 15 contacts, as it was burned closed, and replaced brushes [and] left car in service.’
[PLAINTIFF’S COUNSEL:] Okay. Is that the same car that you viewed when you were in this building in December of 1990?
[MOYNIHAN:] Yes.
******
[PLAINTIFF’S COUNSEL:] What is the significance when one of these contacts or two of these contacts burn out? What does that mean?
[MOYNIHAN:] Oh. When they are burned closed, that means that they were welded, and if they are welded, that must mean that you have developed very high heat for these contacts to be welded or ... stuck together.
******
[PLAINTIFF’S COUNSEL:] How does that affect the leveling, when something like this occurs?
[MOYNIHAN:] [The elevator] will go very fast, much faster or slower.
[PLAINTIFF’S COUNSEL:] How does that interrelate to the ability of the elevator to come flush with the floor, or a particular floor?
[MOYNIHAN:] At times it will cause the elevator to overshoot or at times it will cause the elevator to stall in the *241 leveling zone. So, two things can happen: It can stall or it can overshoot.
[PLAINTIFF’S COUNSEL:] Now, on this occasion, what did Mr. Bothell do with those two contacts at 14 and 15?
[MOYNIHAN:] I read his deposition. He took a file to them and filed them.
[PLAINTIFF’S COUNSEL:] In your opinion, sir, is that an appropriate method [of] working] on the contacts?
[MOYNIHAN:] Absolutely not.... Terrible. It shouldn’t be done. I don’t know why he did it. It was wrong. These are very sensitive contacts, the resistance, and putting the file on them is just wrong.... I don’t know what he was thinking of.
[PLAINTIFF’S COUNSEL:] Now, what happens if you file down one of these contacts?
[MOYNIHAN:] It will change the resistance, the whole circuit will be changed.
[PLAINTIFF’S COUNSEL:] What, in your opinion, Mr. Moynihan, to a reasonable degree of engineering probability, is the proper course of conduct when a mechanic finds burnt contacts at 14 and 15?
[MOYNIHAN:] Replace [them],
[PLAINTIFF’S COUNSEL:] Why is that?
[MOYNIHAN:] It is the only way to do [it]. First of all, you can’t correct them by cleaning them when they are burned like that. They should be reрlaced.” (Emphasis added).
The defense attempted to refute Moynihan’s testimony concerning the contacts -with the testimony of Ronald Bothell, Dover’s technician who worked on elevator number two. Upon reviewing the repair tickets, Bothell testified that he filed and cleaned the contacts on his January 7, 1987 service call. He also testified that this was an appropriate measure under the circumstances, because polishing the contacts “takes the film off’ them and produces a “full contact” or sufficient *242 current. During the course of his testimony, Mr. Bothell also attested to the following:
“[DEFENSE COUNSEL:] Now, when you arrived again on January 7th were these contacts welded together in any way?
[BOTHELL:] No.
[DEFENSE COUNSEL:] If they were welded together what would they be like?
[BOTHELL:] It would just be like this.
[DEFENSE COUNSEL:] And how would you get that apart? What would you have to do?
[BOTHELL:] You would have to replace them.
[DEFENSE COUNSEL:] And let me ask you this. As to what you have shown us there[,] the condition that you found and you described, would that have an effect on the operation of the elevator?
[BOTHELL:] Of course it would.
[DEFENSE COUNSEL:] And how would it affect it?
[BOTHELL:] It would affect it as you are going into the floor. Your car would come into the floor, slow down, not come to a complete stop, inch on by the floor. Then it would relevel back up until it [is] level.
* * * * * *
[DEFENSE COUNSEL:] Would that have an effect on levelling?
[BOTHELL:] Yes.
[DEFENSE COUNSEL:] And what effect would it have on levelling?
[BOTHELL:] Well, the car will go by the floor, it will go above it or below it I would probably say an inch and then level back up and then it will come in level, stop and open the doors.
*243 [DEFENSE COUNSEL:] Now, that is the condition that you corrected on January 7th in response to [the] call back of January 6th, is that correct?
[BOTHELL:] Yes, sir.”
Plaintiffs counsel then cross-examined Bothell with respect to the following:
“[PLAINTIFF’S COUNSEL:] Now, you also replaced the brushes on this particular occasion, is that not correct?
[BOTHELL:] Yes, sir.
[PLAINTIFF’S COUNSEL:] And that is something that you have to check all the time?
[BOTHELL:] Yes, sir.
[PLAINTIFF’S COUNSEL:] And you also have to check these contacts because they get dirt and dust blown into them, is that not correct?
[BOTHELL:] Yes, sir.
[PLAINTIFF’S COUNSEL:] And sometimes they burn, is that not correct?
[BOTHELL:] They burn, yes, sir.
[PLAINTIFF’S COUNSEL:] And when they burn they mislevel?
[BOTHELL:] Yes.
[PLAINTIFF’S COUNSEL:] Is that not correct?
[BOTHELL:] Yes, sir.
[PLAINTIFF’S COUNSEL:] When was the time preceding January 7th, 1987 that you had last cleaned these contacts?
[BOTHELL:] I have no idea.
[PLAINTIFF’S COUNSEL:] You have no idea?
[BOTHELL:] No.
* * * * * *
[PLAINTIFF’S COUNSEL:] So if you had wanted to replace [the contacts] you could have?
[BOTHELL:] If [they] needed it I would have, yes.”
*244 Finally, in his closing argument, plaintiffs counsel reemphasized all the direct evidence previously offered:
“The issue still remains [that] if this device was burned or burned closed what was Dover’s obligation ... on the 7th of January 1987 with respect to this elevator.
Now, as you may recall and it has been some time now, Mr. Moynihan testified that these contacts are very sensitive devices and they should not be filed. The reason is he said because it affects the electrical properties of the contact.
It is like any other electric device; if you take away the metal, even if you just file it slightly, you can affect the way the contact is made. If you do that you are going to have intermittent problems, which seems to be consistent with what happened thereafter; that is that these problems continued to occur.
Mr. Bothell said that it was his practice to take this file, insert it as he did and file this material off. That may be true, that may not be true. It is really ... your judgment call as to whether that was an appropriate conduct in light of what Mr. Moynihan said was the appropriate standard of care.”
Plaintiffs counsel concluded that the contacts in question were inexpensive parts and readily available in Mr. Bothell’s service truck.
As illustrated by these excerpts, Mr. Moynihan testified to the probable cause of elevator number two’s misleveling. He specifically testified that contacts 14 and 15 were “burned closed,” which would cause the elevator to either “overshoot” or “stall” in the leveling zone. He further rendered an opinion, “to a reasonable degree of engineering probability,” that the proper and reasonable course of action when the contacts are “burned closed” is to replace them. He concluded by testifying that this course of action was not taken by Dover’s elevator technician, Ronald Bothell. According to the repair records and Moynihan’s expert testimony, Mr. Bothell attempted to clean the contacts by filing them and, in Moyni *245 han’s opinion, this was an unreasоnable or “[tjerrible” course of conduct.
The additional testimony offered by Ronald Bothell also addressed the “burned” contacts in an apparent attempt to refute the direct evidence offered by the plaintiffs expert witness. Finally, in his closing argument, plaintiffs counsel developed a negligence theory around the direct evidence offered throughout the trial. Hence, the jury was presented with an issue of whether cleaning rather than replacing the contacts was negligent.
In arriving at its conclusion that this direct evidence of negligence did not preclude the plaintiffs reliance on
res ipsa loquitur,
the Court of Special Appeals extensively discussed two principal cases:
Blankenship v. Wagner,
In the course of its reasoning, the Blankenship Court also acknowledged the following principle which guides our reasoning in the instant case:
*246 “ ‘The justice of the rule permitting proof of negligence by circumstantial evidence is found in the circumstance that the principal evidence of the true cause of the accident is accessible to the defendant, but inaccessible to the victim of thе accident. The rule is not applied by the courts except where the facts and the demands of justice make its application essential, depending upon the facts and circumstances in each particular case.’ ”
The instant case also does not present a situation where “ ‘the principal evidence of the true cause of the accident’ ” was accessible only to the defendant and “ ‘inaccessible to the victim.’ ”
Blankenship,
As Chief Judge Wilner observed in his Swann dissent:
“[Swann] marshalled evidence to show the precise cause of the misleveling — the malfunction of the contacts — and to show as well that Dover was negligent in not replacing those contacts prior to the accident. The focus of the case was on whether Dover was remiss in merely cleaning the contacts rather than replacing them.”
*247
Swann,
The other case relied upon by the Court of Special Appeals,
Nalee, Inc. v. Jacobs,
is equally distinguishable from the factual circumstances of the instant case. In
Nalee,
the plaintiff was injured in the defendant’s hotel when a nearby bench fell over and struck him on the foot. The only arguably direct evidence offered by the plaintiff was testimony that the bench was not fastened to the floor or the wall.
Nalee,
As in
Blankenship,
the
Nalee
Court also recognized that direct evidence of negligence may preclude application of
res ipsa loquitur.
In the course of its analysis of this issue, the
Nalee
Court attempted to distinguish the case of
Smith v. Bernfeld,
“In [Bemfeld,] all of the facts with regard to the actual happening of the accident had been developed, and when developed, they were held insufficient to establish negligence on the part of the defendant. It was in that context that we said ... that ‘the plaintiffs’ attempt to establish specific grounds of alleged negligence precludes recourse to the doctrine of res ipsa loquitur.’ ”
This Court’s reasoning in
Nalee
is equally applicable to the instant case. The plaintiff in this case did not stop at the inference of the defendant’s negligence, drawn from the single misleveling of the elevator, but purported to establish more. In doing so, “all of the facts with regard to the actual happening of the accident had been developed, and when developed, they were held insufficient to establish negligence” on the part of Dover.
Nalee,
In the instant action, Swann’s primary complaint was not that a single misleveling created an inference of negligence, but that Dover’s failure to properly correct the problem after prior mislevelings constituted negligence. More particularly, Swann contended Dover was negligent by cleaning, rather than replacing, contacts 14 and 15, failing to spend adequate time servicing the elevator, keeping deficient records, and failing to stock sufficient replacement parts. This did not constitute reliance on res ipsa loquitur. Swann established a prima facie ease of direct negligence based on specific and comprehensive evidence gleaned from Dover’s service records and Moynihan’s on-site investigations. The trial judge apparently concluded, and we agree, that a res ipsa loquitur instruction was not proper because the plaintiffs expert witness established that the most likely cause of the elevator’s misleveling was an insufficient current running between contacts 14 and 15 and the defendant’s negligence, if any, was the failure to correct the misleveling problem. In effect, the plaintiffs expert, Donald Moynihan, and the defendant’s witness, Ronald Bothell, agreed that the probable cause of any possible misleveling was the contacts but they disagreed over *249 whether cleaning rather than replacing these contacts constituted negligence.
Thus, the reasoning of
Nalee,
like that of
Blankenship,
leads us to the conclusion that
res ipsa loquitur
should not be applied to the facts and circumstances of the case before us.
Cf. Roberts v. Cave,
There is an additional reason why res ipsa loquitur is inapplicable to the instant case. Moynihan purported to offer an expert opinion regarding the actual and specific negligence on Dover’s part which caused the accident. Consequently, this was not a case where the jury was presented with some evidence and then permitted to draw its own inference as to whether there was negligence. At the very least, Moynihan drew his own inference from the evidence he examined, and then presented that infеrence to the jury as part of his expert testimony. The jury was not asked to draw any inferences from circumstantial evidence presented in the plaintiffs case in chief, but to decide whether it accepted as credible the expert’s testimony concerning why negligence must have been the cause of this accident.
In this respect, our opinion in
Meda v. Brown,
“We affirm, not on the basis of the applicability of res ipsa loquitur, but because the testimony was sufficient to support the inferential conclusion of negligence drawn by the plaintiffs experts.”
Meda,
At the
Meda
trial, the plaintiff offered testimony from two medical experts, and neither witness could say precisely how
*251
the plaintiffs arm was positioned during surgery so as to cause the alleged ulnar nerve damage.
Meda,
In reaching the decision that res ipsa loquitur was inapplicable in Meda, this Court acknowledged that each doctor relied at least in part on circumstantial evidence to reach his conclusion that the defendant negligently positioned the plaintiffs arm. The Court then concluded the following:
“The closest that this case comes to reliance upon res ipsa loquitur is in the inferential reasoning process used by the plaintiffs experts in arriving at their conclusions that Dr. Meda was negligent. As we shall see, neither Dr. Belaga nor Dr. Rybock could testify as to the precise act of negligence that caused injury to Mrs. Brown’s ulnar nerve. Each doctor, based upon his knowledge of the facts and upon his expertise, concluded that Mrs. Brown’s injury was one that ordinarily would not have occurred in the absence of negligence on the part of the anesthesiologist. This inferential reasoning has a familiar ring to it. It is a major part of the concept of res ipsa loquitur. It is not, however, res ipsa loquitur. Res ipsa loquitur, as we now utilize that concept in the law of negligence, means that in an appropriate case the jury will be permitted to infer negligence on the part of a defendant from a showing of facts surrounding the happening of the injury, unaided by expert testimony, even though those facts do not show the mechanism of thе injury or the precise manner in which the defendant was negligent.” (Emphasis added).
*252
Meda,
In the instant case, even if we were to accept the premise that the plaintiffs expert witness did not seek to furnish a complete explanation of this elevator’s misleveling, he drew his own inferences of negligence. Moynihan derived the inferences regarding the causes of elevator number two’s misleveling problems from his on-site inspection and his examination of the records presented to Swann during discovery. He then presented to the jury his expert opinion that the misleveling would not have occurred if Dover had exercised due care.
*253
The closest this case comes to
res ipsa loquitur
is in “the inferential reasoning process used by the plaintiffs expert[ ],” Donald Moynihan.
Meda,
Thus Swann ventured beyond the mere offering of some evidence of negligence as asserted by the Court of Special Appeals.
See Swann,
Permitting reliance on
res ipsa loquitur
in such a case is tantamount to requiring an alternative jury instruction basеd on the doctrine in virtually every elevator misleveling case. Such a requirement is contrary to the doctrine’s underlying purpose, which is to afford a plaintiff the opportunity to present a
prima facie
case where direct evidence of the
*254
specific cause of an accident is unavailable or solely in the hands of the defendant.
See Blankenship,
If
expert
testimony is used to raise an inference that the accident could not happen had there been no negligence, then it is the expert witness, not an application of the traditional
res ipsa loquitur
doctrine, that raises the inference. The expert testimony offered in these “quasi
res ipsa loquitur
cases” differs somewhat from more traditional expert testimony because, instead of testifying that a
particular act
or omission constituted a failure to exercise due care, the expert testifies to the
probability
that the injury was caused by the failure to exercise due care.
See Meda,
Both Meda and Orkin are among well-established Maryland precedents which assert the proposition that application of res ipsa loquitur is not appropriate in a case which uses expert testimony to resolve complex issues of fact. In Orkin, we pointed out the difference between res ipsa loquitur and the same type of inference which may be drawn by an еxpert witness.
“[I]t is important to distinguish between: 1) the inference of negligence that may properly be drawn by an expert, but could not properly be drawn by a lay juror, and 2) the *255 inference of negligence that may properly be drawn by a lay juror from the facts, unaided by expert testimony. Of the first, it might be said that ‘the thing speaks for itself,’ at least in terms of what the facts say to the expert. But that may be said of inferences in general, and yet it is not res ipsa loquitur as we know that concept in the law of negligence. In the strictest sense, res ipsa loquitur is limited to those instances where, certain criteria having been met, the trier of fact may draw an inference of negligence from the facts alone.”
“Resolution of the issues of negligence and causation involved in a case of this kind necessarily requires knowledge of complicated matters____ Complex issues of the type generated by a case of this kind should not be resolved by laymen without expert assistance. Res ipsa loquitur does not apply under these circumstances.”
At trial in the instant case, the plaintiffs own expert witness acknowledged that elevators may experience problems absent anyone’s negligence. During redirect examination, Moynihan testified that “[tjhere are different things that can cause different problems. You might have a heat condition in an elevator machine room” or, “[a]t times you will blow a fuse,” which also may result in problems with the elevator. Without Moynihan’s opinion that the misleveling was caused by negligence, an inference that this elevator did not mislevel or experience other problems absent someone’s negligence may be unjustified. 4 This is not simply a case of a barrel falling *256 from the defendant’s window onto some hapless pedestrian’s head. As a result, the application of res ipsa loquitur was not appropriate.
Thus, in light of the testimony offered in this case, we believe the Court of Special Appeals erred in reversing the trial judge’s conclusion that the jury could not rely on res ipsa loquitur. This case involved the complicated inner workings of elevator number two’s machinery which were outside thе scope of the average layperson’s common understanding and knowledge, and expert testimony was a necessary element of the plaintiffs case. Since expert testimony was necessary to this case, Swann could not rely on res ipsa loquitur and was required to prove it was more probable than not that this accident was the result of negligence.
III. Jury Instructions
The Court of Special Appeals asserted that a party is entitled to have its theory of the case presented to the jury if two conditions are present: (i) the instruction correctly states the law; and (ii) the law is applicable to the evidence before the jury.
Swann,
Swann cites no decision of this Court that holds it is error for a trial judge to refuse to give a
res ipsa loquitur
instruction. We recognize, however, that various other jurisdictions consider it reversible error for a trial judge to refuse to give a
res ipsa loquitur
instruction where the doctrine is clearly applicable to the evidence before the jury.
See, e.g., State Farm v. Municipality of Anchorage,
On the other hand, several decisions of this State and from the courts of other jurisdictions hold it is error for a trial judge to instruct the jury on
res ipsa loquitur
where the doctrine is clearly
inapplicable
to the evidence before it.
See, e.g., B & K Rentals v. Universal Leaf Tobacco,
Finally, at least one state court has concluded the following with respect to cases where the applicability of the doctrine is somewhat unclear:
“In some cases the adequacy of the proof is a close question and in those instances giving the instruction rests within the sound discretion of the trial court." (Emphasis added).
Turtenwald v. Aetna Casualty & Surety Co.,
In the instant case, neither party has cited, nor have we found, any Maryland case which holds that a trial judge is under a mandatory obligation to instruct the jury on the doctrine of res ipsa loquitur or which reverses a trial judge for the failure to give a res ipsa loquitur instruction. Therefore, this Court has not yet foreclosed the possibility that an exercise of discretion on the trial judge’s part may be permissible, particularly in cases where res ipsa loquitur is questionable and the trial judge’s instructions as to a general negligence theory sufficiently cover the area such that counsel may fit arguments into the instructions given.
In this respect, Maryland Rule 2-520(c) provides that a court “need not grant a requested instruction if the matter is fairly covered by instructions actually given.” A number of Maryland cases also assert the proposition that sрecifically requested jury instructions are unnecessary where the in
*259
structions given adequately encompass the field of law and a party’s counsel has room to argue applicable law in light of the facts of the case.
See Eagle-Picher v. Balbos,
Res ipsa loquitur
is nothing more than one manner in which a general negligence theory is asserted by the plaintiff to an action. As one commentator has noted, “[i]n its simplest form, res ipsa loquitur is merely descriptive of a negligence action in which the plaintiff offers circumstantial, rather than direct, evidence of the defendant’s culpable conduct.” David E. Seidelson,
Res Ipsa Loquitur
— The
Big Umbrella,
25 Duq. L.Rev. 387, 387 (1987) (footnote omitted). As such, the doctrine of
res ipsa loquitur
conceivably could fall within the ambit of а general negligence theory. We are unprepared to foreclose the possibility that a jury instruction concerning negligence in general may fairly cover the area of
res ipsa loquitur,
as long as the judge does not otherwise improperly preclude counsel from making such an argument. Absent a jury instruction which improperly negates such a theory, counsel would be free to present arguments regarding the permissible inferences the jury may reasonably draw from the circumstantial evidence before it.
See Hanes v. State, Use of Lamm,
There is a general rule that negligence will not be inferred from the mere occurrence of an accident. In
res ipsa loquitur
cases, however, an inference of negligence is raised by the occurrence of an accident coupled with circumstances which invoke the doctrine.
See Short v. Wells,
Thus, if a trial judge possesses discretion to refuse to give a specific res ipsa loquitur instruction and decides not to give the instruction, the judge may not negate an attorney’s potential arguments concerning permissible inferences where the doctrine may apply. In the instant case, the trial judge did not give a res ipsa loquitur instruction, however, the judge also negated the attorney’s potential argument concerning the permissible inferences underlying the doctrine. The judge specifically instructed the jury that “the mere occurrence of an accident does not mean that someone was negligent.” Because res ipsa loquitur is not applicable to the instant case, *262 the instruction was correct, and we need not reach the quesr tion of whether the judge properly exercised his discretion in refusing to give an instruction on that basis.
In the instant case, the plaintiff offered direct evidence that purported to render an explanation of the cause of elevator number two’s misleveling. In addition, because of the complex and technical nature of the probable cause of this accident, the plaintiff used expert testimony in order to support an inference of negligence. For all of these reasons, the doctrine of res ipsa loquitur was inapplicable to the evidence before the jury, and the trial judge committed no error in refusing to give the requested instruction.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED, AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REINSTATE THE JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY. RESPONDENT TO PAY COSTS.
Notes
. As utilized throughout this opinion, the word "mislevel” is a term of art originally employed by the parties in this action and adopted by the Court of Special Appeals.
. After hеr surgery, the plaintiff complained of permanent and persistent "pain, numbness, and tingling in the right hand, and particularly in the fourth and fifth fingers of that hand.”
Meda v. Brown,
Drs. Gary Belaga, a neurologist, and John Rybock, a neurosurgeon, both offered expert testimony on behalf of the plaintiff.
Meda,
. We recognize that the case of
B & K Rentals v. Universal Leaf Tobacco,
”1) Johnson and [Grimes] were the only two people working at the warehouse at the time of the fire; 2) Grimes had lit an acetylene torch for Johnson a cоuple of hours before the fire; 3) Johnson was using the torch to burn strings caught in the jack wheels of a wooden dolly; 4) Grimes heard a popping noise and saw smoke coming from the area where Johnson had just finished burning the string from the jack wheels; and 5) Grimes believed the cause of the fire was related to Johnson’s use of the acetylene torch.”
B & K Rentals,
. In his dissent to Swann, Chief Judge Wilner of the Court of Special Appeals suggested that perhaps res ipsa loquitur should never be applicable in elevator misleveling cases. He stated:
"My second concern is with the notion that elevators don’t mislevel absent someone’s negligence.... My problem is in understanding *256 the rationale for such a doctrine. Mechanical, electrical, and electronic devices fail or malfunction routinely — some more routinely than others. A speck of dust, a change in temperature, misuse, an accidental unforeseen trauma — many things can cause these devices to malfunctiоn. To allow an inference that the malfunction is due to someone’s negligence when the precise cause cannot be satisfactorily established appears to me to be unwarranted.”
. A judge improperly precludes counsel from making such an argument by not giving a
res ipsa loquitur
instruction, and also instructing the jury that it may not infer negligence from the mere occurrence of an accident in a case where
res ipsa loquitur
is clearly applicable.
See Ristaino v. Flannery,
In
Pindell v. Rubenstein,
"Since therefore, under the circumstances of this case as disclosed by the evidence upon which the plaintiff relied, an inference of negligence could have been drawn from the happening of thе accident itself, in connection with such circumstances, it was error to instruct the jury to the contrary, and the defendants’ [request] should not have been granted."
Pindell,
"Indeed, in cases of the instant type it is better practice not to give any mere happening instruction [on behalf of the defendant], even with an attempted explanation.
* * * * * *
Here the trial judge clearly perceived the inconsistency between the mere happening and the prima facie negligence instructions, and the judge endeavored to reconcile them for the jury. That effort at reconciliation, however, underscored the conflict more than the effort harmonized it.”
Ristaino,
Such an instruction is conceivably improper because counsel is essentially prohibited from presenting an argument, based upon the general inferences of negligence underlying res
ipsa loquitur,
where the evidence might otherwise support such an argument.
Cf. Grier v. Rosenberg,
. A federal pattern jury instruction regarding res ipsa loquitur reads as follows:
“In ordinary cases, the mere fact that an accident happens does not furnish evidence that it was caused by any person’s negligence, and the plaintiff must point to some negligent act or omission on the part of the defendant.
If you find, however, first, that injury to the plaintiff ... was proximately caused by (here name the event that caused the injury); second, that at the time of the accident the (instrumentality that caused the injury) was under the exclusive control or management of defendant ..., so that the defendant had superior means for determining the cause of the accident; and third, that in the normal course of events the accident and ensuing injury would not have occurred without the negligence of the person having control and management of (the instrumentality), then you may find that the accident and ensuing injury were caused by the negligence of the defendant.
I say that you may so find. You are not compelled so to find. You should consider all facts and circumstances in evidence, and also the defendant's explanation. You are reminded that the plaintiff has the burden of proving defendant’s negligence by preponderance of the evidence.” (Emphasis in original).
3 Edward J. Devitt et al.. Federal Jury Practice and Instructions § 80.08, at 142-43 (4th ed. 1987).