McGriff v. Gramercy Capital Corp. et al

Filing 31

OPINION and ORDER granting 8 Motion by defendants Gramercy Capital Corp. and First State Investors 3500 LLC to Dismiss the portion of plaintiffs complaint based on res ipsa loquitor, and dismissing Count Two of plaintiff's complaint with leave to amend within 11 days. Signed by District Judge Henry C. Morgan, Jr. and filed on 4/29/13.(mwin, )

IN THE UNITED STATES DISTRICT COURf~FILED
FOR THE EASTERN DISTRICT OF VIRGINI

Norfolk Division
KIM MCGRIFF.,

I APR 2 9 2013
CLERK USDIS1HIU LAAJRT
U

NORFOLK, VA

Plaintiff,

v

Civil Action No. 2:13cvl52

GRAMERCY CAPITAL CORP., et al.,
Defendants.

OPINION AND ORDER

This matter is before the Court onDefendants Gramercy Capital Corporation

C'Gramercy") and First States Investors 3500 LLC's ("First States") (collectively, "Defendants")
Motion to Dismiss. * Doc. 8. Defendants argue that Count Two ofPlaintiff Kim McGriffs

("McGriff or "Plaintiff) Complaint, Doc. 1, Ex. 1—which puts forth atheory ofrecovery
based on the doctrine ofres iosaloquitor—fails to state aclaim. After examining the Motion, the
associated briefs, and the Complaint, the Court finds that oral argument isunnecessary because

the facts and legal contentions are adequately presented and oral argument would not aid in the
decisional process. E.D. Va. Loc. Civ. R. 7(J). For the reasons explained herein, the Court hereby
GRANTS Defendants' Motion to Dismiss.

1This Motion was made by only two ofthe five defendants. The other defendants include Otis Elevator Company,

CBRE Group, Inc., and CB Richard Ellis ofVirginia, Inc. The last two defendants—CBRE Group, Inc. and CB
Richard Ellis ofVirginia, Inc.—assert that they are wrongly named and the correct entity is CBRE, Inc. formerly

known as CB Richard Ellis, Inc. There is a pending motion by Plaintiff to amend the complaint to relate back to the
proper CBRE defendant, Doc. 22, which is not yet ready for adjudication.

I. Background

A. Factual Allegations2

On February 9, 2011, Plaintiff boarded the elevator on the twelfth floor ofthe tower at One
Commerce Place, Norfolk, Virginia, ("the Tower") intending to travel to the thirteenth floor.

Unluckily, after Plaintiff had boarded the elevator, it suddenly and violently dropped a number of
floors, causing significant personal injury to Plaintiff. Compl. 1fl| 2, 17.

The Tower is owned by First States, which is in turn owned by Gramercy. Id at ffi[ 2, 3,

7; see also Doc. 23 at 1. Defendants leased a portion ofthe Tower to Bank ofAmerica (which is

not party to this suit). Id. atU8 Doc. 23 at 1. Bank ofAmerica then contracted with CBRE, Inc.,
for the management and maintenance ofthe Tower. Id at19; see also supra note 1. CBRE, Inc.
contracted with Defendant Otis Elevator for the provision of management and maintenance
services for the Elevator. Id. at K10; Doc. 23 at 2.
B. Procedural History

Plaintiffs filed their Complaint in the Circuit Court for the City ofNorfolk, and
Defendant removed the case to this Court on March 22, 2013. Doc. 1. On March 29, 2013,

Defendants moved to dismiss CountTwo of Plaintiff s Complaint for failure to state a claim.

Docs. 8, 9. Plaintiff responded inopposition on April 9, 2013, Doc. 23, and Defendant replied in
support on April 12, 2013. Doc. 29. The matter is now ready for adjudication.
II. Legal Standards

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a claim. See Randall v.
United States. 30 F.3d 518, 522 (4th Cir. 1994); seeFed. R. Civ.P 12(b)(6). In considering such

2"In considering a motion todismiss, [the Court] accept[s] as true all well-pleaded allegations and view[s] the
complaint in the light most favorable tothe plaintiff." Venkatraman v. REI Svs.. Inc.. 417 F.3d 418,420 (4th Cir.
2005) rciting Mvlan Labs.. Inc. v. Matkari. 7 F.3d 1130, 1134 (4th Cir.1993)). The Court cautions, however, that the
facts alleged by Plaintiff are recited here for the limited purpose ofdeciding the instant Motion toDismiss. The
recited facts are notfactual findings upon which the parties may rely for any other issue in this proceeding.
2

a motion, a court should accept as true all well-pleaded allegations and view the claim in the

light most favorable to the claimant. See De Sole v. United States. 947 F.2d 1169,1171 (4th Cir.
1991) (citing Jenkins v. McKeithen. 395 U.S. 411, 421 (1969)). "The issue is notwhether a

plaintiff will ultimately prevail butwhether the claimant is entitled to offer evidence to support
the claims." Scheuer v. Rhodes. 416 U.S. 232, 236 (1974) (abrogated by Harlow v. Fitzgerald.
457 U.S. 800(1982)).

A court must also be mindful of the liberal pleading standards under Rule 8, which

require only "a short and plain statement of the claim showing thatthe pleader is entitled to
relief." Fed. R. Civ. P. 8. While Rule 8 does not require "detailed factual allegations," a plaintiff

must still provide "more than labels and conclusions" because "a formulaic recitation of the
elements of a cause of action will not do." Bell Atlantic Corp. v. Twomblv. 127 S. Ct. 1955,

1964-65 (2007) (citation omitted). Indeed, the legal framework of a claim must be supported by
factual allegations that"raise a right to reliefabove the speculative level." Id at 1965. In
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court expanded upon Twomblv by

articulating thetwo-pronged analytical approach to be followed in any Rule 12(b)(6) test.
First, a court must identify and reject legal conclusions unsupported by factual allegations

because theyare not entitled to the presumption of truth. Id at 1951. "[B]are assertions" that
amount to nothing more than a "formulaic recitation of the elements" do not suffice. Id

(citations omitted). Second, assuming the veracity of "well-pleaded factual allegations," a court
must conduct a "context-specific" analysis drawing on "its judicial experience and common
sense" and determine whether the factual allegations "plausibly suggest an entitlement to relief."

Id at 1950-51. The plausibility standard demands more than a showing of "a sheer possibility
that a defendant has acted unlawfully." Id at 1949. That is, "[a] claim has facial plausibility

whenthe plaintiffpleads factual contentthat allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged." Id at 1949. "In other words, the

complaint's factual allegations must produce an inference of liability strong enough to nudge the
plaintiffs claims 'across the line from conceivable to plausible.'" Nemet Chevrolet. Ltd. V.
Consumeraffairs.com. Inc.. 591 F.3d 250, 256 (4th Cir. 2009) (internal citations omitted).
HI. Analysis

Plaintiffalleges in Count Two of the Complaint that Defendants are liablefor her injuries
on a theory of res ipsa loquitur. In Virginia "a plaintiffmay invokethe res ipsa loquitur doctrine
to establish a breach of duty owed him by a legal inference of negligence from proved facts."
Easterling v. Walton. 208 Va. 214, 217,156 S.E.2d 787, 790 (1967). For the doctrine to apply:

(1) the instrumentality which causedthe injury must have been in the exclusive possession,
control, or management of the defendant; (2) the injury would not ordinarily have occurred if the
defendant had used due or proper care; (3) and the defendant has exclusive knowledge of the

way the instrumentality was used—which is to say thatthe evidence of the cause of the injury is
accessible to the defendant and inaccessible to the plaintiff. Lewis v. Carpenter Co., 252 Va. 296,
300,477 S.E.2d 492, 494 (1996) (citing Stein v. Powell. 203 Va. 423, 426, 124 S.E.2d 889, 891

(1962)); Easterling. 208 Va. at 217, 156 S.E.2d at 790 (citingDanville Com. Hospital v.
Thompson. 186 Va. 746, 757-58, 43 S.E.2d 882, 886-87, 173 A.L.R. 525, 531 (1947)); see also

Mav v.Dover Elevator Co.. 845 F. Supp. 377, 382 (E.D. Va. 1994) affd, 40 F.3d 1244 (4th Cir.

1994) (adding the qualification that the plaintiff must not be at fault). The doctrine
may be utilized only when the circumstances of the incident, without further
proof, are such that, in the ordinary course of events, the incident could not have
happened except on the theory of negligence. In such case, the doctrine raises a
presumption or permits an inference of negligence. It is not to be applied,
however, when evidence is available.

Lewis. 252 Va. at 300, 477 S.E.2d at 494 (citing Beer Distrib.. Inc. v. Winfree. 190 Va. 521,

525, 57 S.E.2d 902, 904 (1950); Cooper v. Horn. 248 Va. 417, 421, 448 S.E.2d 403,405 (1994)).
4

The stringent nature of the elements reflects that Virginia has "limited and restricted [the
doctrine] to a very material extent." Id at 300,477 S.E.2d at 494.
L Whether an Elevator Fall is the Type ofAccident That Occurs Absent Negligence

There is adequate Virginia authority to support the notionthat a passenger elevator does

not normally fall absent negligence. SeeMurphy's Hotel v. Cuddy's Adm'r. 124 Va. 207, 97 S.E.
794, 797-98 (1919) (upholding the application of res ipsa loquitur in the fall of an elevator in a

hotel).3 Defendant cites Dixie Peanut Co. v. Lewis' Adm'x for the assertion that "[t]he doctrine of
res ipsa loquitur is not applicable to all cases involving a falling elevator." Doc. 29 (citing Dixie
Peanut Co., 118 Va. 577, 88 S.E. 72 (1916)). There, an employee was killed while operating a

freight elevator. Id The evidence at trial showed thatthe cable supporting the elevator had
broken, but that no cause for its breaking had been adduced, and the court stated further:
The uncontradicted evidence in the instant case shows that the elevator in

question was a first-class machine, as good as any freight elevator on the market,
and was in general use. It further shows that it was regularly inspected by an
expert who had no connection with the defendant three or four times a year, to see
that it was in good order, and that this expert examined it within a few weeks
prior to the accident. It is further shown that an intelligent employ[ee] of the
defendant, who was acquainted, from long experience, with the construction and
operation of elevators, examined it two or three times a week to see that it was in
good working condition. The result of these investigations was that up to the time
of the accident no defect was discovered, but the elevator was found to be in good
working order.

Id at 73. The court held that, under those circumstances—where Defendant had provided
substantial evidence about its due care and the accident—a jury instruction on res ipsa loquitur

was error. Accordingly, Defendant is right that res ipsa loquitur does not automatically apply to

3Defendants further argue that an elevator fall could be caused by a product defect or some other thing outside their
control. However "[t]he plaintiffis not required to exclude everypossibility that the injury mighthavebeen caused
through somemeans for which the defendant is not responsible. [] The test is whetherthe circumstances are such as
would satisfya reasonable and well-balanced mind that the accident resulted from the negligence of the defendant.
The testimony need not excludeeverything which the ingenuity of counsel may suggest as havingpossibly causedor
contributed to the injury." Danville Cmtv. Hosp.. 186Va. at 762,43 S.E.2d at 889. In light of Murphy's Hotel.
Plaintiff has adequately alleged this element.
5

elevator falls when there is evidence about the accident and Defendant's care; but at this

juncture—and on a Rule 12(b)(6)Motion where there is no evidence for the Court to consider—

itwould be premature to dismiss Plaintiffs claim on this ground.4 Accordingly, Plaintiff has
adequately alleged the second element. See Compl. ^ 40.
2. Exclusive Possession, Control, or Management

The majority of the parties' argument focuses on the first element and Plaintiffs

allegation that the elevator"was in the joint and exclusive control of all Defendants." Compl. f
39. Plaintiffs assertion that multiple corporate entities jointly exercised exclusive control

appears to be novel in Virginia. Plaintiffrecounts that "Virginiacourts have never specifically
articulated what is meant by 'exclusive control'" and '"[w]hether the Virginia Supreme Court
will re-examine and reassess what it means by 'exclusive control' in light of how a majority of

contemporary American courts have addressed the issue remains to be seen.'" Doc. 23 at 6

(quoting Va. Prac. Tort and Personal Injury Law§ 3:42). According to Plaintiff, the majority of
courts—in a trend of making exclusive control less critical to a res ipsa loquitur claim—hold that

exclusive control can be joint among defendants. Doc. 23 (citing 59 A.L.R. 4th, 201 §30(a)).5
Further, "it is for the trier of the facts to say whether either or both [defendants] had control." Id.
Plaintiff has not demonstrated that Virginia is among this purported majority. While

Virginia will permit a case against multiple defendants to go forward to determine which
defendant had control, there is no precedent for permitting an action to proceed on the basis of
joint exclusive control. See Dickerson v. Fatehi. 253 Va. 324, 328, 484 S.E.2d 880, 882 (1997)
(remanding for further development of the record to see which of two defendants had exclusive
4It is also worth noting thatMurphy's Hotel involved a passenger elevator to which the high duty of care owed bya
common carrier applied, whereas Dixie Peanut Co. involved a freight elevator operated by an employee to whom a
standard duty of care applied. This distinction matters because, if a duty of care is higher, there are more failures that
could be a breach of the duty, so a presumption of negligence is less likely to result in undue liability for the carrier.

5However, it appears that many courts still require that thejointcontrol be exclusive, that is: only thejoint
defendants, and no others, have control. See 57B Am. Jur. 2d Negligence § 1232.
6

possession and control of the instrumentality at the time of the negligence); DoverElevator Co..
845 F. Supp. at 382 (dismissing a res ipsa loquitur claim against a defendant elevator
maintenance company which discovery showed was only responsible for a portion of the
elevator maintenance).

Accordingly, because the Virginia Supreme Courthas said that "[t]he restricted nature of
the doctrine [of res ipsa loquitur! is implicit in a statement of its elements," and those elements
include that the instrumentality "must be in the exclusive possession of or under the exclusive

management of the defendant," this Courtwill not extendVirginialaw to permitjoint exclusive
control.6
3. Whether Plaintiff's Claim Can Go Forward Against Any One Defendant As Alleged

Plaintiffargues that it shouldbe permitted to conduct discovery because "[w]henit is

unknown which partyhad exclusive control[,] ... a res ipsa loquitur claim is the only method to
determine the same." Doc. 23 at 6. Plaintiff correctly states that, in pursuing a res ipsa loquitur

claim, she should be permitted to conduct discovery to see which, if any, defendant had
exclusive control. See Dickerson v. Fatehi. 253 Va. at 328,484 S.E.2d at 882. But Plaintiff has

not alleged that one of the Defendants had exclusive control, so as to entitle her to discover
which one; she has alleged that they all have "joint and exclusive control." Compl. f 39. That

theory is not available under Virginia law, and so Count Two fails to state a claim.
IV. Conclusion

Because Plaintiff alleges res ipsa loquitur via "joint and exclusive control"—a theory
Virginia has not adopted—she has failed to state a claim under Virginia law. Accordingly,
6It is also worthwhile to notethat in Danville Cmtv. Hosp. v. Thompson. 186 Va. 746,43 S.E.2d 882(1947), the
Virginia Supreme Court expressed disagreement with a California case which permitteda theory of joint exclusive
control among multiple defendants. See Id at 761, 43 S.E.2d at 888 (citing Ybarra v. Spangard.25 Cal. 2d 486, 154
P.2d 687 (1944)). In Danville, the Virginia Supreme Court adopted the narrow notion from Ybarra that a plaintiff
need not specify which of a singledefendant's employees was responsible for negligence when all employees and
instrumentalities were under the single defendant's exclusive control. Id.
7

Defendants' Motion is GRANTED and Count Two of Plaintiff s Complaint is DISMISSED

with leave to amend within eleven (11) days, if Plaintiff be so advised.
The Clerk is REQUESTED to send a copy of this Order to all counsel of record.
It is so ORDERED.

/s/

Henry Coke Morgan, Jr.
Senior United States District Judge
HENRY COKE MORGAN, JR><
SENIOR UNITED STATES DISTRICT JUDGE

Norfolk, Virginia

Date: April ^7,2013