Cash v. Otis Elevator Co., 83-476

• Citation: 41 St.Rep. 1077,684 P.2d 1041,210 Mont. 319
• Decision Date: 06 June 1984
• Docket Number: No. 83-476,83-476
• Court: United States State Supreme Court of Montana
• Parties: Katherine CASH, Plaintiff and Respondent, v. OTIS ELEVATOR COMPANY, a corporation, and Country Club Manor, a co-partnership, d/b/a Mueller Apartments, Defendants and Appellants.

Page 1041

684 P.2d 1041

210 Mont. 319

Katherine CASH, Plaintiff and Respondent, v. OTIS ELEVATOR COMPANY, a corporation, and Country Club Manor, a co-partnership, d/b/a Mueller Apartments Defendants and Appellants.

No. 83-476.

Supreme Court of Montana.

Submitted March 22, 1984.

Decided June 6, 1984.

Corette, Smith, Pohlman & Allen, Gregory C. Black and R.D. Corette argued, Butte, for Mueller Apts.

Poore, Roth & Robinson, C. Richard Anderson argued, Butte, for Otis Elevator.

John L. Peterson argued, Butte, for plaintiff and respondent.

MORRISON, Justice.

Defendants Otis Elevator Company (Otis) and Country Club Manor, a co-partnership, d/b/a Mueller Apartments, (Mueller) appeal from a judgment entered by the District Court of the Second Judicial District, Silver Bow County, awarding $108,000 plus costs and damages for personal injury.

At about 1:00 o'clock a.m. on August 20, 1981, plaintiff went to the Mueller apartment building to visit a tenant. She entered the lobby and pushed the elevator call button. After briefly visiting with other people in the lobby, plaintiff opened the hoistway door to the elevator and stepped forward. The elevator car was not at the lobby floor level and plaintiff fell approximately fifteen feet down the elevator shaft. Plaintiff instituted this action to recover for her personal injuries suffered in the fall.

Mueller had a maintenance agreement with Otis whereby Otis agreed to make monthly service calls and provide emergency services when notified of problems. Following the accident, Mueller notified Otis. Otis dispatched an employee to the premises. Upon inspection a brass hook, which was part of the lobby floor interlock system, was found to be bent. The elevator door, under these conditions, could be opened without the elevator car being present.

Plaintiff was taken to the hospital after the accident and found to have a blood alcohol content of .16%. Plaintiff's intoxication was considered by the jury.

The trial court found defendants negligent as a matter of law and submitted causation and contributory negligence to the jury. The jury found plaintiff to be contributorily negligent and attributed 20% of the total cause to plaintiff's conduct. The balance of cause was divided 40% to Mueller and 40% to Otis.

The following issues are presented on appeal:

1. Whether the District Court erred in finding Otis and Mueller or either of them guilty of negligence as a matter of law?

2. Whether the District Court erred in instructing the jury that defendants owed to plaintiff the highest degree of care?

3. Whether the District Court erred in refusing defendant's proposed instruction on independent intervening cause?

4. Whether the District Court erred in excluding the testimony offered by Otis from a toxicology expert regarding the number of drinks consumed by the plaintiff on the night of the accident?

5. Whether the District Court improperly awarded certain costs to the plaintiff?

ISSUE 1:

WHETHER THE DISTRICT COURT ERRED IN DIRECTING A FINDING OF NEGLIGENCE AGAINST OTIS AND MUELLER OR EITHER OF THEM?

The trial court premised its negligence ruling on defendant's violation of an administrative safety code and upon the application of res ipsa loquitur. If a directed finding of negligence was proper, we will not reverse the case because the trial court premised its ruling upon a faulty basis. Laurie v. M. & L. Realty Corporation (1972), 159 Mont. 404, 408, 498 P.2d 1192, 1194.

Before examining the applicability of res ipsa loquitur to the case at bar, we must see if there were specific acts of negligence which were unrebutted and which would permit a directed verdict on negligence. If such negligence is found and was unrebutted, the finding can be sustained without resolving the res ipsa issue.

A case may only be withdrawn from the jury if there are no genuine and material issues of fact about which twelve reasonable people can disagree. Sistock v. Northwestern Telephone Systems, Inc. (Mont.1980), 615 P.2d 176, 37 St.Rep. 1247. Because the record contains different evidence as to each of the two defendants, the case against each of the defendants is discussed separately.

Mueller is the owner of the premises in question. The parties agree that plaintiff is an invitee. A property owner's duty toward an invitee is to use ordinary care to keep the premises reasonably safe and to warn the invitee of any hidden or lurking dangers. Cereck v. Albertson's, Inc. (1981), 195 Mont. 409, 637 P.2d 509; Rennick v. Hoover (Mont.1980), 186 Mont. 167, 606 P.2d 1079, 37 St.Rep. 308. However, in the operation of an elevator, we feel the owner owes a higher degree of care. The elevator performs the function of a common carrier in transporting people from one floor to another. Experience teaches that the public reposes trust in those who furnish that carriage, that they will be transported safely from one floor to another. A number of jurisdictions have held that, with respect to operation of the elevator itself, the premises owner owes the highest degree of care. Johnson v. Hopkins (1925), 213 Ala. 492, 105 So. 663; Stewart v. Beegun (1970), 126 Ill.App.2d 120, 261 N.E.2d 491. We feel that the best public policy is served by adopting this higher standard for Montana.

Plaintiff contends that Mueller was negligent as a matter of law for violating specific provisions of the Montana Safety Code for elevators. The District Court found that the defendants were negligent per se for having violated the safety code relating to the operation of the hoistway-door interlock device. The code defines this device and its integrated system in the following manner:

"Hoistway-Door Electric Contact. An electrical device, the function of which is to prevent operation of the driving-machine by the normal operating device unless the hoistway door is in the closed position ...

"Hoistway-Door or Gate Locking Device. A device which secures a hoistway door or gate in the closed position and prevents it from being opened from the landing side except under certain specified conditions.

"Hoistway-Door Combination Mechanical Lock and Electric Contact. A combination mechanical and electrical device with two related, but entirely independent functions, which are:

(a) to prevent operation of the driving-machine by the normal operating device unless the hoistway door is in the closed position; and

(b) to lock the hoistway door in the closed position and prevent it from being opened from the landing side unless the car is within the landing zone.

"NOTES (Hoistway-Door Combination Mechanical Lock and Electric Contact):

(a) These functions are subject to the modifications specified in Rule 111.4b of this Code.

(b) As there is no positive mechanical connection between the electric contact and the door locking mechanism, this device insures only that the door will be closed, but not necessarily locked, when the car leaves the landing. Should the lock mechanism fail to operate as intended when released by a stationary or retiring car-cam device, the door can be opened from the landing side even though the car is not at the landing. If operated by a stationary car-cam device, it does not prevent opening the door from the landing side as the car passes the floor.

"Hoistway-Door Interlock. A device having two related and interdependent functions which are:

(a) to prevent the operation of the driving-machine by the normal operating device unless the hoistway door is locked in the closed position; and

(b) to prevent the opening of the hoistway door from the landing side unless the car is within the landing zone and is either stopped or being stopped." ANSI-ASME A17.1-1981 at 4.

The unrebutted testimony of Ken Marshall, an elevator inspector for the State of Montana, showed that when an interlock system is functioning in accordance with the safety code, the door cannot be opened if the elevator car is not at the floor. Mr. Marshall, without contradiction, testified that the particular interlock system in the defendant's elevator was operating in violation of the safety code.

We held in Stepanek v. Kober Construction (Mont.1981), 625 P.2d 51, 38 St.Rep. 385, that a violation of an administrative code is evidence of negligence but is not negligence per se. Plaintiff seeks to distinguish Stepanek for the reason that the Montana Legislature mandated the adoption of the safety code which is here involved. Specific reliance is placed upon sections 50-60-203 and 50-60-702, MCA. Those sections read as follows:

"50-60-203: Department to adopt state building code by rule. (1) The department shall adopt rules relating to the construction of, the installation of equipment in, and standards for material to be used in all buildings or classes of buildings, including provisions dealing with safety, sanitation and conservation of energy ...

"(2) The department may adopt by reference nationally recognized building codes in whole or in part, but this does not prevent the department from adopting rules more stringent that those contained in such codes."

"50-60-702: Department to adopt inspection standards--certification of inspectors. (1) The department shall adopt standards for passenger elevator and escalator inspections that assure compliance with the requirements of the state building code.

"(2) The department shall adopt rules for the certification of maintenance and insurance company inspectors who may inspect passenger elevators and escalators pursuant to 50-60-701."

Plaintiff argues that the legislature cannot set forth verbatim a lengthy and detailed building code. We agree. However, the legislature did not incorporate this administrative code by reference. The legislature simply mandated that the Department of Administration adopt rules. The Department did so. The legislature did not act further to adopt those rules. Under these circumstances, the administrative code does not become part of a statute by reference. Therefore,...