Allen v. Otis Elevator Co.

• Decision Date: 28 September 1990
• Docket Number: No. 1-88-2630,1-88-2630
• Citation: 563 N.E.2d 826,150 Ill.Dec. 699,206 Ill.App.3d 173
• Parties: , 150 Ill.Dec. 699 James J. ALLEN, Helen Allen and Mary Allen, Plaintiffs-Appellees, v. OTIS ELEVATOR COMPANY, Defendant-Appellant (John Hancock Mutual Life Insurance Company, Defendant).
• Court: United States Appellate Court of Illinois

Page 826

563 N.E.2d 826

206 Ill.App.3d 173, 150 Ill.Dec. 699

James J. ALLEN, Helen Allen and Mary Allen, Plaintiffs-Appellees, v. OTIS ELEVATOR COMPANY, Defendant-Appellant (John Hancock Mutual Life Insurance Company, Defendant).

No. 1-88-2630.

Appellate Court of Illinois,

First District, First Division.

Sept. 28, 1990.

Rehearing Denied Dec. 19, 1990.

McKenna, Storer, Rowe, White & Farrug, Chicago (James P. DeNardo, Perry C. Rocco, Christine L. Olson, of counsel), for defendant-appellant.

Cantwell & Balonick, Chicago (Peter A. Cantwell, Stephen F. Boulton, of counsel), for plaintiffs-appellees.

Presiding Justice BUCKLEY delivered the opinion of the court:

Otis Elevator Company (defendant) appeals from a $5,000 jury award to each of the plaintiffs James Allen, his wife, Helen, and their daughter, Mary, in their action alleging negligent infliction of emotional distress. Defendant requests that a judgment notwithstanding the verdict be entered on the ground that plaintiffs have failed to prove a negligent infliction of emotional distress cause of action as a matter of law. Defendant alternatively requests that a new trial be granted due to prejudicial rulings on the submission of jury instructions and the admission of certain testimony, or that a new trial be granted on the issue of damages alone on the ground that the jury award is excessive and against the manifest weight of the evidence. We need not address the issues raised on defendant's new trial request because we find a judgment notwithstanding the verdict must be entered.

The evidence adduced at trial reveals the following. At approximately 11 p.m. on January 22, 1977, plaintiffs, who were heavily clothed, entered the John Hancock Center in Chicago, Illinois, where they boarded an elevator with 15 to 20 other passengers destined for the 95th and 96th floors. Prior to reaching the 95th floor, the elevator "stopped and dropped" "four to six to eight feet," causing James to be thrown against fellow passengers and Helen and Mary to be thrown against the walls of the elevator. When the elevator came to a halt, James pushed the elevator's emergency alarm bell button. A voice answered and informed the passengers that their needs would be attended to.

Plaintiffs described the conditions in the elevator at the time. Air circulation in the car was poor because of a closed circulation fan. The passengers could not move or sit down due to the limited amount of space in the elevator. The elevator became so hot that people were soaked in perspiration and began removing their clothing.

After approximately 15 minutes without any outside contact, James rang the alarm bell again. A voice replied that "someone was coming over from Water Tower" to free the passengers. James requested that the person on the intercom keep in contact with them, but a long period of time lapsed without any outside contact. In response to an "S.O.S." signal that James rang out on the alarm bell, an impatient voice informed the passengers as to the futility of ringing the alarm bell. Outside communication was thereafter cut off. The passengers unsuccessfully attempted to open the escape hatch on top of the elevator and the doors of the elevator. A gun that one passenger carried in a holster was exposed during these actions, causing the plaintiffs to fear that the man might panic and start shooting.

William Valleau, the second mechanic for the Hancock building, and Jerome Camp, a Hancock building engineer, located the stalled elevator and rescued the passengers at approximately 1 a.m. by opening the escape hatch and lowering a ladder into the elevator. The passengers climbed onto the top of the elevator and slid along the elevator's roof to an open hallway door leading to one of the building's floors. The passengers could observe the black "abyss" of the empty adjoining elevator shaft. Valleau subsequently replaced an "open" F4C 3/4 fuse and returned the elevator to service.

Witnesses explained the following regarding malfunctioned elevators. When incidents of elevator malfunction occur, a time ticket is prepared by the repair mechanic and a report is submitted to him. If a mechanic is needed on weekends, the "first" mechanic is contacted, and if he does not respond, the "second" mechanic is notified. The elevator car could not actually drop. When the fuse "opened," power to the brake of the elevator would have been lost, but the elevator car "would have had a controlled stop, regenerative power through the circuit," and the elevator would have stopped approximately 30 to 40 seconds, or three to four floors, later following the opening of the fuse.

Plaintiffs described the injuries they incurred as a result of the incident. When James walks into an elevator he gets excited and a "little clammy," "wondering if [the] elevator is going to go up or * * * down." He has exited elevators prior to their departure where he believes malfunctions are likely, such as when there is a delay in the closing of the elevator doors. James admitted that he has never received any medical treatment as a result of the incident, including treatment from a psychiatrist or counselor. He has not been prevented from attending work as a result of the incident. Subsequent to the elevator incident, he and his wife purchased a condominium on the fifth floor of a building and used the elevator regularly.

Helen was unable to sleep the night of the incident. She had never feared the use of elevators prior to the incident, but now sometimes exits a crowded elevator. Her palms now start to get moist and she has a feeling of distress when she is in an elevator. She exits an elevator if the elevator doors do not immediately close correctly or if she feels the elevator is not operating properly. On occasion, she has exited the elevator in her building and has instead walked up to her residence.

Helen dislikes flying in airplanes, but admitted that she did not care to fly before the incident. She admitted that she has not received medical treatment or psychological counselling. She observed no change in James as a result of the incident, but her daughter, Mary, is "extremely nervous" "[w]hen she gets on a plane."

Mary now has a fear of flying, fear of crowds, and fear of heights. She avoids the use of elevators whenever possible, especially when an elevator is crowded or malfunctioning. Mary admitted she took elevators at work after the incident. She is afraid to travel in an airplane because "[i]t reminds [her] of when [she] was in the elevator, basically of being closed in and having people around [her], close by, being up high." While on airplanes, her stomach churns, her palms become sweaty and she becomes very nervous. Immediately following the incident, she cried every time she was on an airplane and avoided flying whenever possible. She is unable to enjoy trips or vacations which require air travel and has avoided using airplanes as a means of transportation.

Crowds cause Mary to feel frightened and her eating and sleeping habits and her choice of housing and employment have been affected. A factor in her job selection in California was that the office was on a first floor, and she will not live in a building requiring the use of an elevator. Mary admitted that she has not received any medical or psychological treatment as a consequence of the elevator incident, nor has the incident prevented her from attending work.

Addressing defendant's contention on appeal that a judgment notwithstanding the verdict should have been entered in its favor, defendant contends that plaintiffs have failed to meet the legal predicate to recovery for injuries incurred as a result of negligently inflicted emotional distress. The legal standard applicable to this issue and its requirements are the subject of the dispute on appeal, as well as the subject of much confusion among Illinois courts.

Historically, Illinois courts adhered to the rule announced in Braun v. Craven (1898), 175 Ill. 401, 51 N.E. 657, to limit recovery for negligently inflicted emotional distress to situations where the plaintiff suffered a contemporaneous physical impact as the result of defendant's negligence. (E.g. Cutright v. City National Bank of Kankakee (1980), 88 Ill.App.3d 742, 44 Ill.Dec. 50, 410 N.E.2d 1142; Carlinville National Bank v. Rhoads (1978), 63 Ill.App.3d 502, 20 Ill.Dec. 386, 380 N.E.2d 63; Owens v. Chicago Telephone Co. (1910), 159 Ill.App. 80.) In Rickey v. Chicago Transit Authority (1983), 98 Ill.2d 546, 75 Ill.Dec. 211, 457 N.E.2d 1, the Illinois Supreme Court adopted a standard enabling a victim of a negligent act or omission who had not suffered a contemporaneous physical impact to plead a cause of action for negligent infliction of emotional distress. This standard, known as the zone-of-physical-danger rule, allows the plaintiff to recover for physical injury or illness as a result of the emotional distress caused by the defendant's negligence when the plaintiff is in such proximity to the impact to have reasonable fear for his own safety. Rickey, 98 Ill.2d at 555, 75 Ill.Dec. at 215, 457 N.E.2d at 5.

Since Rickey, courts have disputed whether the zone-of-physical-danger rule has replaced the impact rule as the standard to be applied in all negligent infliction of emotional distress causes of action, or whether the rule acts conjunctively with the impact rule to be applied solely in bystander situations. (Compare Siemieniec v. Lutheran General Hospital (1985), 134 Ill.App.3d 823, 89 Ill.Dec. 484, 480 N.E.2d 1227, aff'd in part, rev'd in part (1987), 117 Ill.2d 230, 111 Ill.Dec. 302, 512 N.E.2d 691; Corgan v. Muehling (1988), 167 Ill.App.3d 1093, 118 Ill.Dec. 698, 522 N.E.2d 153, appeal granted (1988), 122 Ill.2d 572 125 Ill.Dec. 214, 530 N.E.2d 242; and McAdams v. Eli Lilly & Co. (N.D.Ill.1986), 638 F.Supp. 1173, 1178 (courts finding zone-physical-danger rule to apply only to bystander situations) with Hammond v....