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Introduction

In Kimball v. Otis Elevator Co., the Washington Court of Appeals addressed whether Otis was liable for a back injury sustained by Allison Kimball when she stepped out of an elevator that abruptly stopped approximately six inches above the floor. This case sheds light on negligence, evidentiary challenges, and liability standards in elevator-related injury claims under Washington law.

Factual Background

1. Evidence of Misleveling in Other Elevators

Kimball sought to introduce records and witness testimony showing misleveling across five elevators to suggest a pattern of negligent maintenance. While the trial court excluded some of this evidence, the appellate court held the exclusion was harmless, as Kimball still presented sufficient evidence of misleveling in elevator #2 itself. Keller Swan Injury Attorneys+10Descrybe+10CaseMine+10
Moreover, Otis’s own employee, Mr. Sawyer, acknowledged receiving complaints about misleveling in the bank of elevators, supplying the plaintiff with notice-related evidence. FindLaw Case Law+3Descrybe+3ComplaintInfo+3

2. Admissibility of Deposition under CR 32(a)(5)(B)

Kimball argued that Dr. McCollum’s deposition should be excluded because it did not comply with CR 32(a)(5)(B). The court deemed any error harmless since his testimony addressed damages only—an issue not reached due to the jury’s verdict. Descrybe+2vLex+2
Additionally, the court clarified that Dr. McCollum was not an “expert witness” under CR 26(b) because his evaluation occurred prior to litigation anticipation. Hence, his deposition was properly admitted under CR 32(a)(3)(B). Descrybe+1

3. Common Carrier Standard Argument

Kimball claimed Otis should have been held to the higher standard of a common carrier. The court declined, citing Pruneda v. Otis Elevator Co.—holding that even with a full-service maintenance contract, Otis is not a common carrier unless it maintains on-site personnel. Thus, this argument was rejected. CaseMine+3Descrybe+3vLex+3

4. Res Ipsa Loquitur Instruction

Kimball requested a res ipsa loquitur jury instruction, referencing Otis’s exclusive control over maintenance. The court denied it, alongside precedent indicating that the accident could occur without negligence—such as by passenger activation of the emergency button.

5. Curative Instruction vs. Mistrial

After a defense remark implying no misleveling occurred in other elevators, Kimball requested a mistrial. The court chose to provide a curative instruction instead, advising the jury it had excluded that evidence, rather than declare a mistrial. Given its isolated nature, the instruction sufficed. 

Decision

The Court of Appeals affirmed the trial court’s judgment in favor of Otis Elevator Company. All purported errors were either harmless, within discretion, or legally meritless.

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