Burgess v. Otis Elevator Co. , 114 A.D.2d 784 ( 1985 )

—Judgment, Supreme Court, New York County (Alfred M. Ascione, J.), entered June 21, 1984, which awarded plaintiff Vilma Burgess $823,240 and Joseph Burgess $194,240 on a jury verdict against defendant and third-party plaintiff Otis Elevator Company, modified, on the law and the facts, and a new trial ordered solely on the issue of damages with respect to plaintiff, Joseph Burgess, unless Joseph Burgess, within 20 days of service of a copy of the order to be entered herein, with notice of entry upon his attorney, serves and files in the office of the clerk of the trial court a written stipulation consenting to a reduction of the verdict in his favor to $50,000, and to the entry of an amended judgment in accordance therewith, and the aforesaid judgment is otherwise affirmed, without costs or disbursements.

On September 7, 1978, plaintiff Vilma Burgess boarded elevator No. 13 on the 19th floor of Morgan Guaranty Trust’s office building located at 15 Broad Street in lower Manhattan. Frank Teague, another Morgan Guaranty employee, was on the elevator. Both had boarded it without difficulty. They rode down to the 18th floor. When Mrs. Burgess exited, she stumbled and fell to the floor. While lying on the ground she saw that the elevator had landed about five inches above floor level. Mr. Teague, who left the elevator to assist her, noticed that it was 2 to 4 inches above floor level.

Plaintiff commenced this action, joined by her husband who sued for loss of consortium, against Otis Elevator to recover for the back injury she sustained as a result of her fall. Defendant Otis Elevator had a service contract with Morgan Guaranty Trust, whereunder it was obligated to maintain the elevators in proper and safe operating condition, systematically inspect them, and repair any defective parts. It was also responsible for keeping a mechanic on the premises during regular working hours, and providing "call back service” in response to complaints at all other times. Issue was joined, and defendant Otis Elevator impleaded Morgan Guaranty.

The court, at Trial Term, instructed the jury on negligence and the doctrine of res ipsa loquitur. Defendant and Morgan Guaranty objected to the use of a res ipsa instruction. In response to interrogatories, the jury determined that defendant Otis Elevator was negligent, and that its negligence was the proximate cause of the accident. The jury rendered a verdict for plaintiff Vilma Burgess, in the amount of $890,000, and for her husband in the amount of $210,000. The jury found that plaintiff was lVz% contributorily negligent, reducing the awards to $823,240 and $194,240, respectively. It also apportioned 25% liability to Morgan Guaranty on the third-party complaint. Both Otis Elevator and Morgan Guaranty moved to set aside the verdict. The trial court granted Morgan Guaranty’s motion. This appeal by defendant Otis Elevator ensued.

Defendant challenges, inter alia, the sufficiency of plaintiffs’ prima facie, and the propriety of the jury instruction on res ipsa loquitur. These points are addressed, seriatim, below.

The trial court properly denied defendant’s motion to set aside the verdict, and found the verdict in accord with the evidence. Contrary to defendant’s contention, there was circumstantial evidence of a probative nature associating the accident with prior elevator malfunction. The jury here could have found that defendant had actual or constructive notice of the defective condition from the testimony of William Heinbokel, Morgan Guaranty’s building manager, that there had probably been complaints that some of the automatic elevators in the B bank (which contained elevator No. 13) misleveled at a given floor by more than two inches; and that he thought there had been complaints that some of the B bank elevator cars did not platform correctly on the 18th floor. Mr. Heinbokel’s testimony, coupled with defendant’s undertaking to perform all inspection and maintenance, was sufficient for the jury to infer negligence. (Rogers v Dorchester Assoc., 32 NY2d 553, 561.) In a case similar to the present one, Smith v Jay Apts. (33 AD2d 624), the Third Department held that evidence of one elevator malfunction prior to the accident was sufficient to sustain the elevator company’s liability.

The jury could also have found from the testimony of plaintiff’s expert, Stanley Fein, that defendant’s negligence in fulfilling its maintenance contract caused the accident. He testified that the procedures Warren Robinson, the mechanic assigned to full-time duty at the premises, regularly followed, according to his deposition testimony, i.e., riding each elevator once every three weeks and checking with the elevator starters for complaints, were not good custom and practice. Mr. Fein testified that a four-inch misleveling could have been caused by various types of equipment failure, would be very unlikely to spontaneously correct itself, and would have been discovered on reasonable inspection.

We conclude that plaintiff adduced sufficient evidence of the three elements necessary to invoke the doctrine of res ipsa loquitur. In New York, the doctrine has three prerequisites: (1) the event must be of a kind that does not ordinarily occur in the absence of someone’s negligence, (2) it must be caused by an instrumentality within the exclusive control of the defendant, and (3) the plaintiff must not have effected the happening of the event by any voluntary action. (Corcoran v Banner Super Mkt., 19 NY2d 425, 430.) In a case on point with the present one, Smith v Jay Apts, (supra), the Third Department found that proof of a two-foot misleveling of an automatic elevator warranted submission of the case to the jury on the theory of res ipsa loquitur. Similarly, in a case involving the six-inch misleveling of an automatic elevator, Peters v Troy Hous. Auth. (108 AD2d 999), the record indicates the jury was charged res ipsa loquitur. The Third Department affirmed the judgment in favor of the plaintiff. The memorandum decision does not reflect any evidence of prior malfunction.

We find that Mr. Fein’s testimony was sufficient to establish both a prima facie case of negligence and the first element of res ipsa loquitur. Mr. Fein’s testimony clearly raised an inference that the accident stemmed from defendant’s negligence in servicing the elevator. Moreover, when read together, the testimony of both Mr. Fein and Mr. Robinson established that the misleveling of elevator No. 13 was an event of a kind which would not ordinarily occur in the absence of negligence. Both he and Mr. Robinson testified that a 2- to 5-inch misleveling was substantially beyond the acceptable tolerance, and that the possible causes were various failures in the elevator mechanisms and equipment, i.e., broken load weighting switches, wires, contacts, selector work bearings or level rings. Defendant, however, proffered no conclusive evidence of reasonable care in inspection and maintenance designed to prevent such misleveling problems. Robinson testified at trial that he visually checked the controller and selector equipment in a given bank of elevators every 5 to 6 weeks, rode a given elevator about once every three weeks, and spoke with the elevator starter on duty about any complaints. He failed to indicate how frequently he checked the circuit board in the motor room and other aspects of the elevator mechanism which controlled the elevator leveling, the main machine, the generator, the weight load regulator, and the relay switches. Indeed, the call back records, albeit incomplete, do not reflect that defendant ever serviced any elevator for misleveling problems. Robinson stated that he first learned of plaintiff’s accident at his deposition several years later. Plaintiff clearly established that the instant malfunction was probably due to a serious defective condition, ordinarily discoverable upon reasonable inspection, and not an unforeseeable and spontaneous equipment malfunction, such as a burnt wire. This is especially so given Fein’s uncontroverted testimony that such a malfunction would have been very unlikely to self-correct.

The second prerequisite, exclusive control of the instrumentality, is shown, given Morgan Guaranty’s reliance upon defendant’s expertise to inspect and maintain the intricate devices of the elevator in reasonably safe operating condition, pursuant to the service agreement.

" 'Exclusivity’ is a relative term, not an absolute. 'The logical basis for [the control] requirement is simply that it must appear that the negligence of which the thing speaks is probably that of defendant and not of another.’ (2 Harper and James, [The Law of Torts], § 19.7, p 1085).” (Weeden v Armor Elevator Co., 97 AD2d 197, 206.)

As to the third element, the record is devoid of evidence that plaintiff had any control over the misleveling of the elevator. (Weeden, supra, pp 205-206.) (Compare, Feblot v New York Times Co., 32 NY2d 486, 495-496.) The doctrine is also applicable in view of defendant’s greater access to information. By virtue of its inspection duties, defendant is in a much better position than plaintiff to prove the precise cause of elevator No. 13’s malfunction. Robinson’s testimony at his deposition and at trial that he had destroyed his notes reflecting checks made with respect to misleveling problems is significant in this regard.

Defendant’s reliance upon Koch v Otis Elevator Co. (10 AD2d 464) and Birdsall v Montgomery Ward & Co. (109 AD2d 969) is misplaced. Those cases are inapposite, since defendants’ records in Koch and Birdsall established the greater probability that the accidents were caused by unforeseeable events, a blown fuse and foreign objects, respectively. In addition, the defendant in Birdsall showed that it exercised reasonable care to discover any defective condition in the escalator on previous occasions, since it adhered to a weekly inspection schedule. On the other hand, defendant here neither demonstrated the greater probability that a burnt wire or other unforeseen malfunction in elevator No. 13, rather than negligence, caused the accident, nor made a showing that it had exercised reasonable care to discover and repair promptly prior misleveling problems in any elevator.

Finally, the damages awarded Joseph Burgess appear to us to be excessive to the extent indicated. Concur—Sandler, J. P., Rosenberger and Ellerin, JJ.