Armor Elevator Co. v. Hinton, s. A94A0207

• Citation: 443 S.E.2d 670,213 Ga.App. 27
• Decision Date: 18 April 1994
• Docket Number: A94A0208,Nos. A94A0207,s. A94A0207
• Parties: ARMOR ELEVATOR COMPANY v. HINTON. PSI SECURITY v. HINTON.
• Court: Georgia Court of Appeals

Page 670

443 S.E.2d 670

213 Ga.App. 27

ARMOR ELEVATOR COMPANY v. HINTON.

PSI SECURITY v. HINTON.

Nos. A94A0207, A94A0208.

Court of Appeals of Georgia.

April 18, 1994.

Bondurant, Mixson & Elmore, John E. Floyd, J. Scott McClain, for Armor Elevator.

Croy, Harris & Hammond, A. Cullen Hammond, for PSI Sec.

Lindsey & Jacobs, Tamara Jacobs, for Hinton.

McMURRAY, Presiding Judge.

Plaintiff brought this tort action against VMS/Tower Place Limited Partnership ("VMS"), Armor Elevator Company ("Armor") and PSI Security ("PSI") seeking damages stemming from her fall from an elevator at Tower Place in Atlanta, Georgia. She alleged that the elevator stopped several feet from the ground floor and that she fell from the elevator when she exited it. The liability of VMS, the operator and manager of Tower Place, was predicated on its maintenance and control of the premises. Armor was alleged to be liable because it contracted with VMS to service and repair the Tower Place elevators. Plaintiff alleged that PSI, a private security service providing security services on a contract basis to VMS, was liable because it failed to warn her that the elevator was malfunctioning.

Defendants answered the complaint and denied any liability to plaintiff. Thereafter, VMS filed a voluntary petition for bankruptcy and the case against it was stayed.

During the discovery stage of the proceedings, plaintiff deposed the following: On August 9, 1990, plaintiff took her daughter to a modeling class at Tower Place. Prior to that date, plaintiff had been to Tower Place approximately 18 times. The modeling class was held on the first floor, one floor above the ground floor level. Plaintiff's daughter finished her class and preceded plaintiff to the ground floor. Plaintiff followed in the elevator.

As the elevator descended, it came to a halt and the lights went out for a few seconds. Plaintiff had the feeling that the elevator did not have time to descend all the way to the ground floor. Suddenly, the lights came on and began to flash and blink "real fast ... like a strobe light." Plaintiff became "disoriented."

After a few more seconds, the doors opened. Plaintiff was "thankful to be in the lobby." She thought that it would be best to get out before the doors closed again. So, she "started out immediately." As she did so, plaintiff made eye contact with a lady who was standing on the ground floor. The lady "looked down and had a horrible look on her face." The lady's expression caused plaintiff to look down, but it was too late for plaintiff to stop her exit. She fell three feet to the ground floor.

Plaintiff made her way to the front desk and spoke with a PSI security guard. She told him what happened. He said that there had been some problems with the elevator before; that it "gets stuck all the time."

Armor and PSI moved for summary judgment. PSI supported its motion with the affidavit of its president, James W. Pless IV. He deposed that PSI entered into a contract with VMS to provide security guard services at Tower Place; and that PSI's security guard obligations went to VMS, not the general public. Pless also deposed that if the elevators at Tower Place malfunctioned, "as they did on occasion ... we notified [VMS] of the problem as it came to our attention in order that the Tower Place property manager ... could take appropriate action...." Finally, Pless deposed that on the day in question, "we did not receive any reports of any elevator malfunctions or have any knowledge that any elevators were not working properly until [plaintiff's] accident actually took place."

A copy of PSI's security guard contract with VMS was attached to Pless's affidavit. In pertinent part, it reads as follows: "[PSI] shall provide trained, uniformed, and unarmed personnel to be posted as security personnel at the premises of [VMS].... [VMS] may designate in writing to [PSI] specific locations and deployment of guard personnel so long as it will not necessarily endanger their health or safety.... In the absence of such written instructions, [PSI] will determine, at its own discretion, the locations and deployment of personnel.... [PSI] acknowledges its responsibility by law, for the acts and omissions (of legal duties) of its employees and agents in carrying out the duties imposed upon [PSI] herein.... In the event of a security threat to [VMS] of any type (robbery, riot, vandalism, burglary, fire, property crimes, assault or otherwise), [PSI's] primary duty is to notify appropriate public law enforcement or other emergency personnel."

The trial court denied Armor's and PSI's summary judgment motions but certified its rulings for immediate review. We granted Armor's and PSI's interlocutory appeal applications. Armor appealed in Case No. A94A0207; PSI appealed in Case No. A94A0208. Held :

1. Under certain circumstances, a plaintiff may be excused "from exercising that degree of care ... which the law would otherwise hold to be necessary in an ordinarily prudent person. The doctrine that a plaintiff may be excused from the otherwise required degree of care because of circumstances creating an emergency situation of peril is well recognized. From this stems the rule that a lesser degree of prudence may be sufficient to constitute ordinary care where there are circumstances causing stress or excitement. City of Rome v. Phillips, 37 Ga.App. 299(2), 139 S.E. 828. The doctrine is further broadened to cover situations where the plaintiff's attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur." Redding v. Sinclair Refining Co., 105 Ga.App. 375, 378, 124 S.E.2d 688.

We think the facts of this case present a jury question as to whether plaintiff should be excused from exercising the otherwise ordinary degree of care. True, plaintiff deposed that when the elevator stopped, she suspected that it did not have time to reach the ground floor. However, she also deposed that the rapid blinking of the elevator lights made her "disoriented"; that when the doors opened she was "thankful to be in the lobby"; and that she started out of the elevator "immediately" because she thought it best to exit before the doors closed again. Given this narrative, a jury could conclude that, due to the stress and excitement of the moment, plaintiff should be held to a lesser degree of prudence. Compare Stephens v. Dover Elevator Co., 109 Ga.App. 112, 135 S.E.2d 593 with City of Rome v. Phillips, 37 Ga.App. 299, 300(2), 139 S.E. 828, supra. As it is...