In Hodges v. Royal Realty Corp. (42 AD3d 350 [1st Dept 2007]) the First Department granted summary judgment to defendant (Royal), which "retained ownership of the elevators, [but] did not have anything to do with their maintenance or operation which would warrant the conclusion they did something, or failed to do something, that caused this accident" or "notice that a dangerous condition existed in their operation" (id. at 352, 353).
In Hodges, plaintiff claimed that res ipsa loquitur applied to more than one defendant because Royal and the elevator company both exercised a degree of control over operation of the subject elevator (id. at 351). The Court framed the issue as "whether Royal shared exclusive control over the elevators with [the elevator company] to such a degree that its failure to fulfill its responsibilities constitutes a rational explanation for the occurrence of this accident" (id. at 352). The Court stated that determination of that issue required review of the "true nature" of Royal's relationship with the elevator company, in terms of the relative control over the elevators that each exercised (id.).
The elevator contract between the parties in Hodges ceded responsibility for the daily operation, inspection, maintenance and repair of the elevators to the elevator company, and Royal merely retained ownership of the elevators (id.). The contract also prohibited the owner from allowing an entity other than the contracting elevator company to make alterations, repairs or adjustments. In addition, the elevator company provided an onsite mechanic who handled service, and was, apparently, at the premises daily.
Because Royal had nothing to do with the elevator's maintenance or operation, the Court found that it did not exercise a degree of control that would permit the application of res ipsa loquitur (Hodges, 42 AD3d at 352).
The First Department considered whether a managing agent had "exclusive control" over elevators in a building.
In concluding that the managing agent did not exercise sufficient control over the elevators to allow for the application of res ipsa loquitur to establish its liability for the accident, the Court noted that:
"all responsibility for the daily operation of the building's elevators was ceded to the elevator company, The managing agent had no role in inspecting, maintaining or repairing the elevators; those duties and their faithful execution were the total and complete responsibility of the elevator company by virtue of its contract with the owner" (id. at 352).