FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE/GEPA:

MELISSA A. DAVIDSON THOMAS C. HAYS

Charles D. Hankey Law Office VALERIE L. HUGHS

Indianapolis, Indiana Lewis Wagner, LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE/SCHINDLER: 

BENJAMIN D. ICE

WILLIAM A. RAMSEY

Murphy Ice & Koeneman LLP

Fort Wayne, Indiana

IN THE

COURT OF APPEALS OF INDIANA

CECILIA KELLY, )

)

Appellant-Respondent, )

)

vs. ) No. 49A04-1210-CT-509

)

GEPA HOTEL OWNER INDIANAPOLIS )

LLC, GEPA HOTEL OPERATOR )

INDIANAPOLIS LLC, AND SCHINDLER ) 

ELEVATOR CORPORATION, )

)

Appellees-Petitioners. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Thomas J. Carroll, Judge 

Cause No. 49D06-1001-CT-2415
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 Hotel 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 Harrison 

(“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 (19th) floor 

to visit the speaker for the evening. Once the elevator arrived at the 19th 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 injured 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 the 
elevator “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 19th 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 cause 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 Engineering. Schindler argued that Kelly simply 

stepped into the gap between the elevator and the 19th 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 responded 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 tilted
forward when he applied pressure. 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 2008 where the elevator stopped between three (3) to eight

(8) inches above the 19th 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 positioning 

device were defective, causing the elevator to move as Kelly was exiting to the 19th 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 Schindler’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 opinions establishing the theory of res ipsa loquitur, create genuine 

issues of material fact as to whether Schindler and GEPA breached their duty to Kelly 

and whether the elevator’s alleged malfunction proximately caused 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 therefrom. 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 as 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]. Where 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 lay 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 Evidence 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. denied.

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 into 
the gap between the elevator and the floor when the elevator moved upon her 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 weight a fact-finder 

would give Stabler’s theory at trial instead of its admissibility. 

As to the positioning device, Stabler relied on the fact that the elevator had three 

(3) incidents which he claims are similar to the one on February 29, 2008. One occurred 

April 7, 2007, where the elevator stopped six (6) inches above the 19th floor. Another 

occurred on January 20, 2008, where the elevator was stuck three (3) inches above the

19th floor. Finally, the last incident Stabler relied on occurred on March 3, 2008, where 

the elevator was stuck eight (8) inches above the 19th floor. Schindler and GEPA argue 

that these events are not similar because there is no evidence that anyone was injured in 

the same manner as Kelly. 

“In cases involving the existence of 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. State 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 includes 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 upon happened on the same elevator over a 

period of ten (10) months and one (1) month before, and three (3) days after Kelly’s fall 

on February 29, 2008. Stabler testified that these events were similar to Kelly’s incident 

because they were all incidents of the elevator not positioning correctly at the 19th floor 

and their cause 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 

reliance on these incidents are further bolstered by maintenance records provided by 

Schindler, which reveal that the components Stabler believes caused the elevator’s 

malfunction were not regularly inspected by Schindler. Again, Schindler and GEPA’s 

arguments 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 allows 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 the 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 defendant 
had 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 defendants or the possibility of multiple causes 

does not automatically defeat the application of res ipsa loquitur.

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

quotations omitted), trans. denied. Schindler and GEPA argue that res 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 argument 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 Kelly’s allegation is negligent inspection and maintenance

of the elevator, the only party with the power or opportunity to inspect and maintain the 

motion 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 

Schindler reasonably inspects and maintains the elevator. Finally, notwithstanding 

Schindler and GEPA’s claim that Kelly simply stepped into the gap between the elevator 

and the 19th floor, the evidence in the record allows for the inference that the accident 
happened more probably from Schindler and GEPA’s negligence than any other cause. 

Res ipsa loquitur 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, presentation of contrary evidence, 

argument of counsel, and resolution by the trier of fact.” Bennett v. Richmond, 960 

N.E.2d 782, 786 (Ind. 2012) (internal citation and quotation marks omitted). 

Accordingly, we 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 because 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 being 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. Accordingly, we reverse and remand for 

further proceedings consistent with this opinion.

Reversed and remanded.

ROBB, C.J., and MAY, J., concur.