July 11, 2013 MEMORANDUM DECISION
- FOR PUBLICATION PYLE, Judge

STATEMENT OF THE CASE Cecilia Kelly (“Kelly”) appeals the trial court ’ s grant of summary judgment in favor of GEPA Hotel Owner Indianapolis, LLC, GEPA Hot el Operator, LLC (collectively “GEPA”), and Schindler Elevator Corporation (“Schindler”)

. We reverse. ISSUE Whether the trial court erred in granting summary judgment in favor of GEPA and Schindler.
FACTS On February 29, 2008, Kelly, Barbara Williams ( “Williams”), and Greta Harr ison (“Harrison”) attended a church function at a Hilton Hotel in Indianapolis. After the event ended, the women, escorted by Henry Perry (“Perry”), went to the nineteenth (19 th ) floor to visit the speaker for the evening. Once the elevator arrived at the 19 th floor, everyone began to exit . As Kelly exited, the elevator moved and the heel of her shoe became caught in the gap between the elevator and the floor , causing her to stumble; her foot came out of her shoe

. Kelly injure d her knee because of the incident. Williams was already off the elevator and did not see it move. Williams did hear sounds come from Kelly and what Williams thought was the elevator. Harrison said that she heard theelevator “jar” and saw Kelly fall. (Appellant’s App. 88 )

. Perry felt the elevator move

and had to pull Kelly’s shoe out of the gap between the elevator and the 19 th floor

. On January 19, 2010, Kelly filed a lawsuit in the Marion County Superior Court against GEPA and Schindler alleging that they were negligent in the inspection and maintenance of the subject elevator. After discovery and depositions, Schindler moved for summary judgment on January 5, 2012, claiming that Schindler, as a matter of law, did not breach a duty to Kelly or c ause her injuries. In support of their motion for summary judgment, Schindler designated GEPA’s answers to interrogatories from Schindler and Kelly, depositions from Kelly and Williams , and an affidavit from John Gieske (“Gieske”) , GEPA ’s Director of Engi neering

. Schindler argued that Kelly simply stepped in to the gap between the elevator and the 19 th floor. Gieske’s affidavit stated that
the gap was necessary for the elevator to operate and that the gap had not been altered since the building opened in 1971

. On January 6, 2012, GEPA filed a motion joining Schindler’s motion for summary judgment. In joining Schindler’s motion for summary judgment, GEPA incorporated all arguments and designations of evidence made by Schindler. On March 5, 2012 , Kelly r esponded to both defendants, designating the expert testimony of Joseph Stabler (“Stabler”) as evidence that created genuine issues of material fact to preclude summary judgment. The trial court granted Schindler and GEPA time to reply so that they could depose Stabler. At Stabler’s deposition, he testified that he conducted an inspection of the elevator on January 26, 2011. During his inspection , Stabler found that the metal threshold sill on the elevator was loose and tiltedforward when he applied pre ssure . Stabler also reviewed maintenance records provided

by Schindler and elevator logs kept by GEPA

. GEPA’s elevator logs revealed three (3) incidents between 2007 and 20 0 8 where the elevator stopped between three (3) to eight (8) inches above the 19 th floor. Stabler concluded that based on his inspection of the maintenance records and hotel logs, Schindler and GEPA did not regularly inspect the threshold sill. Stabler also stated that the elevator’s motion controller and posit ioning device were defec tive , causing the elevator to move as Kelly was exiting to the 19 th floor. On July 17, 2012 , Schindler filed a motion to strike the affidavit of Stabler, arguing Stabler ’ s opinions were not reliable under Ind. Evidence Rule 702. GEPA again joined Schindle r’s motion. On October 9, 2012, the trial court entered a general order granting the motion to strike and entered summary judgment in favor of Schindler and GEPA. Kelly filed her notice of appeal on October 11, 2012.
DECISION
In appealing the grant of Schindler and GEPA’s motion for summary judgment, Kelly claims that the trial court erred when it struck the affidavit of her expert. Kelly contends that Stabler’s opinions on the elevator car ’s threshold sill and positioning device , as well as his opinio ns establishing the theory of res ipsa loquit u r , create genuine issue s of material fact as to whether Schindler and GEPA breached their duty to Kelly and whether the elevator’s alleged malfunction proximate ly cause d her injuries. Schindler and GEPA argue that the foundations for Stabler’s opinions are unreliable. The decision to admit or exclude evidence is within the discretion of the trial court, and this court reviews the trial court’s decision for an abuse of discretion.Lachenman v. Stice , 838 N.E.2d 451, 464 (Ind. Ct. App

. 2005), trans. denied . An abuse

of discretion occurs if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it, or the reasonable, probable , and actual deductions to be drawn the refrom. Id

. Indiana Evidence Rule 702(a) provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

To establish an expert ’ s qualifications, only one characteristic

— knowledge, skill, experience, training, or education

— is required, so an affiant may qualify a s an expert based on practical experience alone. In addition, the proponent of expert testimony must show that the subject matter is distinctly related to some scientific field, business, or profession beyond the knowledge of the average [ layperson ]

. Whe re an expert ’ s testimony is based upon the expert ’ s skill or experience rather than on the application of scientific principles, the proponent of the testimony must only demonstrate that the subject matter is related to some field beyond the knowledge of l ay persons and that the witness possesses sufficient skill, knowledge or experience in the field to assist the trier of fact.

Jackson v. Trancik , 953 N.E.2d 1087, 1092 (Ind. Ct. App. 2011) (internal citations omitted). “It is apparent that Indiana Eviden ce Rule 702 assigns to the trial court a ‘gatekeeping function’ of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Lytle v. Ford Motor Co ., 814 N.E.2d 301, 308 (Ind. Ct. App. 2004) , trans. deni ed

. Stabler’s opinion that the threshold sill on the elevator was loose on February 29, 2008 is based upon his inspection and Kelly’s testimony that the heel of her shoe slid intothe gap between the elevator and the floor when the elevator moved upon h er exit.

Further, maintenance records from Schindler and GEPA show little to no inspection of the threshold sill in the elevator, especially in the timeframe before and immediately after Kelly’s incident. Schindler and GEPA’s argument goes more to the we ight a fact

- finder would give Stabler’s theory at trial instead of its admissibility. As to the positioning device , Stabler rel ied on the fact that the elevator had three (3) incidents which he claims are similar to the one on February 29, 2008. One oc curred April 7, 2007, where the elevator stopped six (6) inches above the 19 th floor. Another occurred on January 20, 2008, where the elevator was stuck three (3) inches above the 19 th floor

. Finally, the last incident Stabler relied on occurred on March 3, 2008 , where the elevator was stuck eight (8) inches above the 19 th floor

. Schindler and GEPA argue
th at these events are not similar because there i s no evidence that anyone was injured in the same manner as Kelly

. “In cases involving the existence o f an alleged dangerous condition[,] evidence of the occurrence of prior accidents of a similar character under the same circumstances is admissible to show both the existence of the dangerous condition and notice thereof.” State by and Through Ind. Stat e Highway Comm’n v. Fair , 423 N.E.2d 738, 740 (Ind. Ct. App. 1981)

. Such evidence is not admissible unless the plaintiff shows similarity between the essential conditions surrounding the prior accidents and the one at issue. Id

. A proper foundation incl udes the general requirements of similarity of conditions, reasonable proximity in time, and avoidance of confusion of the issues. Id . at 741.Here, the occurrences Stabler relies up on happened on the same elevator over a

period of ten (10) months and o ne (1) month before, and three (3) days after Kelly’s fall on February 29, 200 8 . Stabler testified that these eve nts were similar to Kelly’s incident because they were all incidents of the elevator not positioning correctly at the 19 th floor
and their cau se was the motion control panel. While we agree with Schindler and GEPA that the incident three (3) days after Kelly’s fall would not be admissible to show notice, it is certainly relevant to showing a potential malfunction with the elevator. Stabler’s

r eliance on these incidents are further bolstered by ma intenance records provided by Schi n dler, which reveal that the components Stabler believes caused the elevator’s malfunction were not regularly inspected by Schi n dler. Again, Schindler and GEPA’s
argum ents go more to the weight a fact

- finder would give Stabler’s conclusions at a trial and not their admissibility. Therefore, Stabler’s reliance on these incidents to formulate his opinion was not improper. Kelly further claims that Stabler’s testimony a llows for the doctrine of res ipsa loquitur to apply in this case.

The doctrine [of res ipsa loquitur ] literally means the thing speaks for itself. Res ipsa loquitur is a rule of evidence which permits an inference of negligence to be drawn based upon t he surrounding facts and circumstances of the injury. The doctrine operates on the premise that negligence, like any other fact or condition, may be proved by circumstantial evidence. To create an inference of negligence, the plaintiff must establish: (1 ) that the injuring instrumentality was within the exclusive management and control of the defendant or its servants, and (2) that the accident is of the type that does not ordinarily happen if those who have the management and control exercise proper care . In determining if the doctrine is applicable, the question is whether the incident more probably resulted from [the] defendant’s negligence as opposed to another cause. To invoke res ipsa loquitur , the plaintiff must demonstrate that the defendanthad exclusive control of the injuring instrumentality at the time of the

injury. Exclusive control is an expansive concept [,] which focuses upon who has the right or power of control and the opportunity to exercise it. The existence of multiple defendant s or the possibility of multiple causes does not automatically defeat the application of res ipsa loquitur

. Rector v. Oliver , 809 N.E.2 d 887, 890 (Ind. Ct. App. 2004) (internal citations and quotations omitted), trans

. denied

. Schindler and GEPA argue that r es ipsa loquitur does not apply because Schindler was not in exclusive control of the elevator at the time of the incident and that Stabler’s testimony itself establishes that the doctrine cannot apply. We disagree. First, we note that Schinlder’s argum ent on control focuses on physical control of the elevator. As stated in Rector , control in regards to res ipsa loquitur is more than physical control; the focus is on “the right or power of control and the opportunity to exercise it.” Id. Here, where K elly’s allegation is negligent inspection and maintenance
of the elevator , the only party with the power or opportunity to inspect and maintain the

mo tion controller and positioning device of the elevator is Schindler. At his deposition, Stabler testified that a well

- maintained elevator can malfunction

. However, Stabler’s ultimate conclusion is that Schindler did not reasonably inspect and maintain the elevator. Stabler’s education and experience allows him to opine that Kelly’s fall does not occur if
S c hindler reasonably inspects and maintains the elevator. Finally, notwithstanding Schindler and GEPA’s claim that Kelly simply stepped in to the gap between the elevator
and the 19 th floor, the evidence in the record allows for the inferenc e that the accide nthappened more probably from Schindler and GEPA’s negligence than any other cause.

Res i psa l oquitur can apply in this case. 1 Kelly has laid the proper foundation for the admissibility of Stabler’s opinion
under Evid. R. 702

. “ Once the admissibility of the expert's opinion is established under Rule 702, then the accuracy, consistency, and credibility of the expert's opinions may properly be left to vigorous cross

- examination, pr esentation of contrary evidence, argument of counsel, and resolution by th e trier of fact.” Bennett v. Richmond , 960 N.E.2d 782, 786 (Ind. 2012) ( internal citation and quotation marks omitted). Accordingly, w e find that the trial court abused its discretion in striking Stabler’s opinion

. Summary judgment is appropriate only where the designated evidence shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). Summary judgment is rarely appropriate in negligence cases. Rhodes v. Wright , 805 N.E.2d 382, 387 (Ind. 2004).

“ This is because negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person

— one best applied by a jury after hearing all of the evidence. ” Id

. To prevail on a claim of negligence the plaintiff must show: (1) duty owed to the plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the applicable standard of care; and (3) compensable injury proximately caused by

1 “ This also does not mean that the plaintiff wins by default, for the doctrine of res ipsa loquitur simply allows an inference of negligence which may or may not be drawn by the trier of fact. ” Rector , 809 N.E.2d at 890

. The defendant can rebut this inference, like any other inference, with relevant evidence.defendant ’ s breach of duty

. Ford Motor Co. v. Rushford , 868 N.E.2d 806, 810 (Ind.

2007)

. Here, both of the parties frame their argument around the position that expert testimony was required to advance Kelly’s claim and is dispositive to our analysis

. Having found that the trial court should have admitted Stabler’s affidavit, Schindler and
GEPA still assert that, even with Stabler’s affidavit , they were not placed on notice of the malfunction of the elevator and therefore are not subject to liability. Schindler claims that becau se it performed maintenance on the elevator a month prior to Kelly’s fall and was not notified of problems , it was not on notice of a defective motion controller. Again, we disagree. “Whether a particular act or omission is a breach of duty is generally a question of fact for the jury

. Northern Ind. Pub. Serv. Co. v. Sharp , 790 N.E.2d 462, 466 (Ind. 2003). It can be a question of law where the facts are undisputed and only a single inference can be drawn from those facts.” Id

. With the allegations bein g negligent inspection and maintenance, a juror could reasonably conclude, based on Stabler’s opinion, that a more careful inspection of the elevator on the two incidents prior to Kelly’s fall would have revealed a defect in the motion controller. Accordi ngly, we reverse and remand for further proceedings consistent with this opinion. Reversed and remanded. ROBB, C.J., and MAY, J., concur.