Adamson v. Westinghouse Elec. Corp.

• Decision Date: 01 June 1970
• Docket Number: No. 3675,3675
• Citation: 236 So.2d 556
• Parties: Mrs. Mary Alice ADAMSON, Widow of Eric Adamson v. WESTINGHOUSE ELECTRIC CORPORATION, Liberty Mutual Insurance Company, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 556

236 So.2d 556

Mrs. Mary Alice ADAMSON, Widow of Eric Adamson v. WESTINGHOUSE ELECTRIC CORPORATION, Liberty Mutual Insurance

Company, et al.

No. 3675.

Court of Appeal of Louisiana, Fourth Circuit.

June 1, 1970.

Rehearing Denied July 6, 1970.

Dodd, Hirsch, Barker, Meunier, Boudreaux & Lamy, Harold J. Lamy, New Orleans, for plaintiff.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Donald O. Collins, New Orleans, for The Travelers Insurance Co. and the City of New Orleans.

Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Allen R. Fontenot, New Orleans, for The Travelers Indemnity Co.

Cronvich & Wambsgams, A. W. Wambsgans, Metairie, for Gulf States Elevator Corp.

Christovich & Kearney, A. R. Christovich, Sr., New Orleans, for Westinghouse Electric Corp. and Liberty Mutual Insurance Co.

Before REDMANN, LE SUEUR and SWIFT, JJ.

REDMANN, Judge.

For injuries sustained from the closing doors of a New Orleans City Hall elevator, plaintiff sued the City and its insurer, the elevator manufacturer and its insurer, and the elevator maintenance contractor and its insurer.

From a judgment against only the City and its insurer, plaintiff appeals, seeking both an increase in quantum and judgment against the other defendants.

The City and its insurer also appeal, seeking reversal, or judgment over against the other defendants for indemnity or contribution, or at least reduction in quantum.

Plaintiff's injury occurred, according to testimony accepted by the trial court, as she was going out of the elevator without unusual delay. The doors closed on her, without retracting as they should automatically have done when the rubber safety edges of the door struck her (or even when her body interrupted the light beam to a photoelectric control).

The circumstances of this accident are similar to those of Brechtel v. Gulf States Elevator Corp., 195 So.2d 403 (La.App. 1967), where we refused to apply res ipsa loquitur in a city employee's suit against the elevator maintenance company because the City Hall elevator machinery 'penthouse' was accessible to many persons in addition to the maintenance contractor's personnel.

The testimony here, too, is that the penthouse was often unlocked and was at times visited by persons other than the maintenance contractor's men. We agree with the trial court's refusal to supply a res ipsa loquitur inference of negligence against the maintenance contractor, because it did not have exclusive control of the elevators. Nor is there otherwise any showing of negligence on that contractor's part. The judgment dismissing the principal demand as to it and its insurer is correct.

Likewise correct is the dismissal of the City's third-party demand against the contractor and its insurer, since the contract with the City specifies

'The Contractor shall not be liable for injuries or damages to persons or property except those directly due to his or his employees' acts, or omissions, and the responsibility of the Owner for injuries or damage to persons or property while on or about the elevators referred to, is in no way affected by this contract. * * *'

Similarly, for lack of permissible inference or other evidence of negligence, the trial court was correct in dismissing the principal and the third-party demands against the elevator manufacturer and its insurer. This accident occurred because of some malfunction in an elevator manufactured ten years earlier. No defect in manufacture or installation was shown.

The difficulty in the case is that, like in the Brechtel case, the cause of the malfunction of the doors has not been shown. Plaintiff reported her injury to City Hall personnel immediately, but the elevator maintenance contractor gave evidence it was not called to service the elevator at that time.

Indeed there is expert opinion evidence that there could not have been a failure of either the rubber safety edges or the electric eye, since interruption of either electrical circuit would have kept the doors open and would have been demonstrable thereafter. But the electric eye could be turned off, leaving the rubber edges as the only operative safety device, and the trial court was of the opinion the electric eye was turned off at the time of plaintiff's accident.

In any case, according to plaintiff and her daughter the doors did within a very few seconds close upon plaintiff without immediately reopening, supporting the trial court's conclusion of a premature lockout of the door-opening safety devices by the 'nudging' feature of the elevator. That feature is designed to prevent undue delay of the elevator, as part of a traffic control system; after a total lapse of, ordinarily, some 25 seconds, the doors will no longer reopen but maintain a steady closing force of 25 to 30 pounds.

In this case, after only a very few seconds, plaintiff was caught between the prematurely unyielding doors and suffered injury in her struggle to free herself.

The trial court held the City liable on a res ipsa loquitur inference of negligence. We are inclined to pretermit res ipsa theory and to find liability rather under LSA-C.C. art. 2322:

'The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.'

Our jurisprudence views an owner's liability under art. 2322 as a liability without fault; in effect, 'neglect to repair' means failure to keep in repair; Murphy v. Fidelity and Cas. Co., 138 So.2d 132 (La.App.1962) (after remand, 165 So.2d 497, La.App.1964, cert. denied). The latest discussion of this liability by our Supreme Court is in Cothern v. LaRocca,255 La. 673, 232 So.2d 473 (1970).

Indeed it is stated in a Comment, 44 Tulane L.Rev. 119, 152 (1969), that in art. 2322 'The word 'neglect', which in English suggests negligence, was translated from French words meaning 'failure to maintain,' * * *.'

' Ruin' is also interpreted broadly; it includes defects in parts or appurtenances of a building, as defective electric wiring, Murphy, supra; or an unguarded window fan, Fontenot v. Sarver, 183 So.2d 75 (La.App.1966); or even a protruding nail, Lasyone v. Zenoria Lbr. Co., 163 La. 185, 111 So. 670 (1927). We believe it includes a defective or malfunctioning elevator.

We conclude the City is liable under art. 2322, and its liability insurer is therefore also liable to plaintiff, LSA-R.S. 22:655.

On quantum, both plaintiff and the cast defendants appeal.

Plaintiff was a 67 year-old woman. She was trapped in her struggle with the doors for some time before an unknown passenger in the elevator managed to force the doors open to free her. Plaintiff testified she was in a panicky state, screaming and crying during the perhaps over-estimated five minutes of her struggle. The trial...