DORA ESTURBAN [Note 1] & others [Note 2] vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY & another. [Note 3]

In this action for personal injuries allegedly caused by a poorly designed escalator, the plaintiffs appeal from the allowance of summary judgment on behalf of both defendants, the Massachusetts Bay Transportation Authority (MBTA) and its maintenance contractor, Millar Elevator Service Company. Viewing the record in the plaintiffs' favor, we conclude that the Superior Court judge was correct in ruling that the lack of expert testimony was fatal to the plaintiffs' claims. In these circumstances, "without adequately founded . . . essential, expert guidance" on the proper design and operation of escalators, a jury would have to resort to impermissible "conjecture and surmise" regarding the applicable standard of care and the cause of injuries stemming from the accident. Triangle Dress, Inc. v. Bay State Serv., Inc., 356 Mass. 440, 441- 442 (1969), quoting from Stewart v. Worcester Gas Light Co., 341 Mass. 425, 435 (1960). See Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 140 (2002).

The escalator in question was sixteen inches wide, which the plaintiffs assert was too narrow. As a result, they claim, several schoolchildren were injured in a pileup at the bottom of the escalator. The motion judge, however, determined that the testimony of the plaintiffs' expert was lacking. [Note 4] Rather than challenge that ruling, the plaintiffs argue instead that jurors, using their common knowledge and experience, are capable of understanding the inherent danger of a narrow escalator and could reasonably infer, without benefit of expert testimony, that such an unreasonably dangerous design and the defendants' failure to warn were the proximate cause of the students' injuries. [Note 5] See Smith v. Ariens Co., 375 Mass. 620, 625 (1978). We disagree.

Although the plaintiffs "need not show the exact cause of the accident or exclude all other possible causes, [they] must show that there is a greater probability than not that the accident resulted from the defendant[s'] negligence." Enrich v. Windmere Corp., 416 Mass. 83, 87 (1993). On this record, the plaintiffs did not meet that burden. By its nature, an escalator is a complex, technical piece of machinery, whose design and operational requirements are not straightforward. Accordingly, any determination of the dimensions essential to its safe operation is generally beyond the scope of an average person's knowledge. See, e.g., ibid. (establishing a defect in electric fan at time of injury). See also Harrington v. Boston Elev. Ry. Co., 229 Mass. 421, 428-429 (1918) (determining proper platform construction); Stewart v. Worcester

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Gas Light Co., supra at 434-435 (addressing reasonable standard of care in the installation of "dresser couplings" on gas pipe); Triangle Dress, Inc. v. Bay State Serv., Inc., supra at 442 (causing fire in air conditioner); Goffredo v. Mercedes-Benz Truck Co., 402 Mass. 97, 104 (1988) (determining the amount of force necessary to open door latch mechanism); Wiska v. St. Stanislaus Social Club, Inc., 7 Mass. App. Ct. 813, 821 (1979) (determining if car windshield was defective); Aetna Life & Cas. Ins. Co. v. Commonwealth, 50 Mass. App. Ct. 373, 378-379 (2000) (determining if there was a causal link between armless chair and employee's back injury).

Moreover, the plaintiffs here also allege, generally, that the escalator at issue did not comport with industry standards and governmental regulations and should have been redesigned during the last modernization effort of the MBTA. [Note 6] In order to make that determination, however, jurors would need the assistance of an expert detailing not only what standards and codes apply, but also how the "narrow" design did not meet those standards or codes and whether there was a causal relationship between that design and the plaintiffs' injuries. See Stewart v. Worcester Gas Light Co., supra at 435. Without the aid of an expert in the field, jurors would also be left to speculate about whether alternatively engineered designs might have prevented the accident. [Note 7] See Fidalgo v. Columbus McKinnon Corp., 56 Mass. App. Ct. 176, 183-184 (2002). The allowance of summary judgment in favor of the defendants was thus appropriate, given the plaintiffs' failure to raise any issue of material fact regarding the presence of a design defect at the time of the accident or on the issue of causation. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

Given our holding in this case, we need not reach the issue whether the motion judge erred in refusing to consider certain testimony, characterized by the plaintiffs as an "excited utterance." We note only that, in the circumstances of this case, the teacher's statement that a child told her that a "shoestring made her fall" is ambiguous at best. To the extent that it may refer to a shoestring getting caught in the moving stairs of the escalator, the statement is insufficient absent properly founded expert testimony to support a claim of negligence based on a defective design.

Judgment affirmed.

Thomas M. Bond for the plaintiffs.

H. Charles Hambelton for Massachusetts Bay Transportation Authority.

John B. Johnson for Millar Elevator Service Company.