Bass v. Nooney Co., 63926

• Decision Date: 23 February 1983
• Docket Number: No. 63926,63926
• Citation: 646 S.W.2d 765
• Parties: Collette BASS, Appellant, v. NOONEY COMPANY, a corporation, and Otis Elevator Company, a corporation, Respondents.
• Court: Missouri Supreme Court

Page 765

646 S.W.2d 765

Collette BASS, Appellant, v. NOONEY COMPANY, a corporation, and Otis Elevator Company, a corporation, Respondents.

No. 63926.

Supreme Court of Missouri En Banc.

Feb. 23, 1983.

Rehearing Denied March 29, 1983.

William R. Kirby, David Fischer, St. Louis, for appellant.

George F. Kosta, Phillip Franklin, St. Louis, for respondents.

SOLBERT M. WASSERSTROM, Special Judge.

Plaintiff Collette Bass seeks damages for mental distress caused by the alleged negligence of defendants Nooney Company and Otis Elevator Company. Trial started before a jury, but at the close of plaintiff's evidence each defendant moved for a directed verdict. Both motions were sustained by the trial court on the ground of the "impact rule." Plaintiff appealed to the Missouri Court of Appeals, Eastern District, which affirmed. On plaintiff's application, this court ordered transfer here. We reverse and remand for a new trial.

The evidence introduced on behalf of plaintiff showed the following facts. Plaintiff was employed by General Dynamics Company which occupied several floors of the Pierre Laclede Center, a structure owned and operated by defendant Nooney. ¹ Plaintiff's duties in part consisted of serving as a relief receptionist so that the regular receptionists on various floors could take periodic rest breaks and lunch periods.

On April 6, 1976, plaintiff entered an elevator at the 20th floor about 11:15 a.m. ² in order to go to the 23rd floor to relieve the receptionist there. The elevator started in the usual manner, but then plaintiff heard a grinding noise and the elevator came to a stop. Plaintiff waited a short while, hoping that the elevator would start up again, but when it did not she began punching the emergency button. She could hear the emergency bell ring, but no voice came through the intercommunication system inside the elevator, nor did any help come from the outside.

After about 10 to 15 minutes, plaintiff began to pound on the door of the elevator and shout for help. Response came from a man in the corridor who announced himself simply as "Don." Plaintiff asked him to summon someone who could get her out and also to notify her work supervisor. Don cautioned plaintiff "don't panic" and he said he would get help. Soon thereafter plaintiff's supervisor did call to her through the door and asked how she was. Plaintiff responded that she was beginning to feel dizzy. After about 15 minutes, plaintiff was getting warm and feeling strange.

She went to a corner of the elevator and slid to the floor.

The maintenance people eventually arrived about thirty minutes after the elevator stalled, and they instructed plaintiff to try to pry apart the inner elevator doors while those on the outside worked at prying open the outer doors. Finally at about 11:45 a.m. the elevator doors were opened, disclosing the elevator to have stopped about a foot above the floor. Plaintiff was assisted from the elevator and her supervisor took her to the ladies room where a cold towel was put on her head and face. She was instructed to spend the balance of the day at her desk doing whatever work she could there without using the elevators. At the end of the working day, she asked a fellow worker to drive her home. During the course of that ride the driver remarked that she seemed to be "sliding and bobbing."

After a restless night at home, plaintiff reported to work the next day. During that day she boarded an elevator, but after ascending one floor she fell over, was caught by other passengers and was taken to an area close by. A company doctor was called, who advised her to go to the hospital and he escorted her there. On examination at the hospital, she was hyperventilating, unable to speak above a murmur, was lightheaded and anxious. Her history as reflected by the hospital record, showed that she had experienced acute anxiety, slurred speech, her equilibrium was off, she felt lightheaded, cold and thoroughly frightened and too scared to sleep the night before.

Plaintiff was admitted to the hospital and was interviewed by a psychiatrist, Dr. Hartnett. She was placed under heavy sedation and stayed as a hospital patient for a period of five days. After plaintiff was released from the hospital, she made office visits to Dr. Hartnett twice and also talked to him by telephone about medication. She did not return to work until May 2, 1976, almost a month after the elevator incident. Since then, she gets tense and her head feels strange if she rides an elevator to a high altitude, she is tense riding in cars, and she is not as patient with her family and children as she used to be.

Dr. Hartnett, the attending psychiatrist, testified that when he saw plaintiff at the hospital, she suffered from extreme anxiety and was unable to speak clearly. She had objective symptoms of anxiety, hyperhidrosis of her palms, she was hyperventilating, her pupils were dilated, and her walking was unstable. His medical diagnosis was a severe anxiety reaction which he testified, with medical certainty, was precipitated by being stuck in the elevator. He agreed, however, that contributing factors to the situation were the facts that plaintiff was at that time in the process of obtaining a divorce and that she was taking care of her mother who had recently suffered a stroke. Dr. Hartnett reported to General Dynamics Company that plaintiff was able to return to the duties of her employment as of May 2, 1976, and he also expressed an opinion in a report dated July 15, 1976, that plaintiff would not have any permanent disability from the emotional damage done to her by reason of the elevator incident.

Plaintiff also introduced the testimony of William Faughn, Jr., an Otis employee, who testified that Otis had a full maintenance contract for the Pierre Laclede Center elevators, that Faughn serviced that building once a day, and that the management personnel or building maintenance personnel had nothing to do with maintaining the elevators.

The trial court entered its directed verdict and the court of appeals affirmed on the basis that plaintiff suffered no physical trauma at the time of the elevator episode. Whether such physical trauma should be required as a prerequisite for recovery is the principal question for decision. However, there is a preliminary question to be considered as to whether plaintiff can properly rely upon the principle of res ipsa loquitur under the facts of this case.

I.

Plaintiff made no effort to prove any specific acts of negligence by either defendant. Rather, she relied on the doctrine of The doctrine of res ipsa loquitur applies when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; and (c) the defendant possesses superior knowledge or means of information as to the cause of the occurrence. This doctrine has frequently been applied in elevator cases. Clark v. Linwood Hotel, 365 Mo. 982, 291 S.W.2d 102 (1956); Warner v. Terminal R. Ass'n of St. Louis, 363 Mo. 1082, 257 S.W.2d 75 (1953); Meade v. Missouri Water & Steam Supply Co., 318 Mo. 350, 300 S.W. 515 (1927); Bartlett v. Pontiac Realty Co., 224 Mo.App. 1234, 31 S.W.2d 279 (1930); Stroud v. Booth Cold Storage Co., 285 S.W. 165 (Mo.App.1926).

res ipsa loquitur. Defendants deny that the doctrine mentioned has any application here.

No valid objection to the application of the doctrine can be made here on the ground of there being two defendants. On the facts of this case, the jury could reasonably find that either or both of the defendants were in control of the elevator, so as to make the application of res ipsa loquitur proper. Greet v. Otis Elevator Company, 187 A.2d 896 (D.C.1963). See Crystal Tire Company v. Home Service Oil Company, 465 S.W.2d 531 (Mo.1971).

Defendants contend, however, that there can be no application of the doctrine here because the evidence does not show any sudden lurch or similar violent movement to the elevator. But whether the elevator fell downward (as was true in Warner, Meade and Bartlett ), made an unexpected start (as was true in Stroud ), jerked upward (as in Clark ), or stalled between floors as here, all are sudden unusual malfunctions which would not normally occur without negligence of the parties in charge. Res ipsa loquitur therefore applies.

II.

The entrenched rule presently in force in Missouri is that a defendant is not liable for negligence resulting in emotional distress unless the plaintiff suffered a contemporaneous traumatic physical injury. Trigg v. The St. Louis, Kansas City & Northern Railway Company, 74 Mo. 147 (1881); Connell v. Western Union Tel. Co., 116 Mo. 34, 22 S.W. 345 (1893); Weissman v. Wells, 306 Mo. 82, 267 S.W. 400 (1924); Porter v. St. Joseph Ry., Light, Heat & Power Co., 311 Mo. 66, 277 S.W. 913 (banc 1925); Chawkley v. Wabash Ry. Co., 317 Mo. 782, 297 S.W. 20 (banc 1927); Gambill v. White, 303 S.W.2d 41 (Mo.1957); Brisboise v. Kansas City Public Serv. Co., 303 S.W.2d 619 (Mo. banc 1957); Pretsky v. Southwestern Bell Telephone Company, 396 S.W.2d 566 (Mo.1965); Williams v. School District of Springfield R-12, 447 S.W.2d 256 (Mo.1969); Crutcher v. Cleveland, C., C. & St.L.R.R., 132 Mo.App. 311, 111 S.W. 891 (1908); Heiberger v. Missouri & Kansas Telephone Co., 133 Mo.App. 452, 113 S.W. 730 (1908); McCardle v. George B. Peck Dry Goods Co., 191 Mo.App. 263, 177 S.W. 1095 (1915); State ex rel. and to Use of Renz v. Dickens, 95 S.W.2d 847 (Mo.App.1936).

Under the authorities just cited, the trial court had no choice but to sustain the motion to dismiss and the court of appeals had no choice but to affirm. The question before this court is whether the long standing "impact rule" should be reconsidered and changed.

The impact rule developed concurrently in England and in the United States during the latter part of the 19th century. The case...