Dallas Market Center Development Co. v. Liedeker

• Decision Date: 04 December 1997
• Docket Number: No. 96-1240,96-1240
• Citation: 958 S.W.2d 382
• Parties: 41 Tex. Sup. Ct. J. 142 DALLAS MARKET CENTER DEVELOPMENT COMPANY, Petitioner, v. Laurie LIEDEKER, Respondent.
• Court: Texas Supreme Court

Page 382

958 S.W.2d 382

41 Tex. Sup. Ct. J. 142

DALLAS MARKET CENTER DEVELOPMENT COMPANY, Petitioner, v. Laurie LIEDEKER, Respondent.

No. 96-1240.

Supreme Court of Texas.

Dec. 4, 1997.

Gregory R. Ave, Tom J. Stollenwerck, Dallas, for Petitioner.

Edwin E. Wright, III, Dallas, Ronald D. Wren, Bedford, for Respondent.

PER CURIAM.

The dispositive question in this case is whether the trial court erred in charging the jury that an elevator owner owes a passenger a high duty of care rather than an ordinary duty of care. We answer yes. Because the case must be remanded for retrial, we also consider whether the district court erred in refusing to charge the jury on premises liability.

A timing device on a freight elevator in Dallas Market Center Development Company's Loew's Anatole Hotel automatically lowered the entry gate twenty-one seconds after it opened. A bell warning that the gate was lowering had been muffled because the noise annoyed hotel guests. Laurie Liedeker, a florist, was loading plants onto the elevator when the gate began to lower and struck her head, injuring her neck. Liedeker sued DMC and Otis Elevator Co., who maintained the elevator, but nonsuited Otis the day of trial.

The district court charged the jury as if Liedeker's claim were for injury from DMC's negligent activity rather than from a defect in DMC's premises. The charge inquired simply whether any negligence of Liedeker or DMC caused Liedeker's injury, what percentage was attributable to each, and what damages Liedeker incurred. Negligence for Liedeker was defined as the failure to use ordinary care, but negligence for DMC was defined as the failure to use "a high degree of care", that is, the "care that would have been used by a very cautious, competent, and prudent person". DMC objected that the charge "impose[d] a greater burden on it than required by law", and specifically, that "[i]n regard to the definitions of 'negligence' and 'high degree of care,' [DMC] would urge the Court to define 'negligence' and 'ordinary care' in Question Number 2 [regarding DMC's negligence] as it is set forth in Question Number 1 [regarding Liedeker's contributory negligence]". The district court overruled DMC's objections, explaining that "[t]he definitions and the placing of the definition of 'high degree of care' with respect to [DMC] was out of a case styled [DeLeon v. Otis Elevator Co., 610 S.W.2d 179 (Tex.Civ.App.--San Antonio 1980, writ ref'd n.r.e.) ]." The jury returned a verdict for Liedeker, and the court rendered judgment on the verdict. The court of appeals affirmed. 958 S.W.2d 382.

DMC argues that it owed Liedeker only a duty of ordinary care. We agree. In Triangle Motors v. Richmond, 152 Tex. 354, 258 S.W.2d 60, 62 (1953), we stated that an owner of an elevator on business premises owed an invitee "a duty to use reasonable care to make and keep the premises reasonably safe for his use". In other words, an elevator owner's liability is for a defect in the premises that presents an unreasonable risk of harm, and his duty is to use ordinary care to prevent such harm. See University of Texas Med. Branch v. Davidson, 882 S.W.2d 83, 86 (Tex.App.--Houston [14th Dist.] 1994, no writ); see also Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517, 520-21 (1922) (an elevator repairer's duty is to exercise ordinary care).

The court of appeals did not cite Triangle Motors, relying instead on Farmers' & Mechanics' Nat'l Bank v. Hanks, 104 Tex. 320, 137 S.W. 1120, 1124 (1911), which states in dicta that an elevator owner "should be held liable to a very high degree of care in respect to the safety of persons" using the elevator. This view was understandable at the time. The passenger elevator was first made possible only fifty-eight years earlier by Elisha Graves Otis' invention of a safety clamp that would prevent an elevator car from falling if the hoist rope broke. 8 NEW ENCYCLOPEDIA BRITANNICA 1042 (1995). The first such elevator was installed in the five-story Haughwout Department Store in New York City in 1857. Id. The first electric passenger elevator was installed in the Demarest Building in New York City in 1889. Wendy Ross, The Rise--But Rarely the Fall--of the Elevator, THE WASHINGTON POST, Mar. 21, 1995, at H1.

Two early decisions in the courts of appeals followed the Hanks dicta. City Nat'l Bank v. Pigott, 270 S.W. 234 (Tex.Civ.App.--San Antonio 1925, no writ); Dulaney Inv. Co. v. Wood, 142 S.W.2d 379 (Tex.Civ.App.--Fort Worth 1940, writ dism'd judgm't cor.). No other case has. Two other cases--Brewer v. Otis Elevator Co., 422 S.W.2d 766, 769 (Tex.Civ.App.--Houston [1st Dist.] 1967, writ ref'd n.r.e.), and Mattox v. C.R. Anthony Co., 326 S.W.2d 740, 743 (Tex.Civ.App.--Beaumont 1959, writ ref'd n.r.e.)--expressed some approval of a rule imposing a high duty of care on elevator owners, but both overlooked Triangle Motors. In DeLeon v. Otis Elevator Co., 610 S.W.2d 179 (Tex.Civ.App.--San Antonio 1980, writ ref'd n.r.e.), on which the district court in the present case relied, and in Otis Elevator Co. v. Bond, 373 S.W.2d 518 (Tex.Civ.App.--Dallas 1963), rev'd, 388 S.W.2d 681 (Tex.1965), the trial court instructed the jury that the elevator owner was responsible for exercising a high degree of care, but the appeals court in neither case passed on the propriety of the instruction. We disapprove of these cases to the extent they conflict with Triangle Motors.

Other states are divided over the duty of elevator owners. In several jurisdictions, elevator owners are liable only for ordinary negligence. E.g., Hafferman v. Westinghouse Elec. Corp., 653 F.Supp. 423, 430 (D.D.C.1986); Summers v. Montgomery Elevator Co., 243 Kan. 393, 757 P.2d 1255, 1261-62 (1988); Charter v. Supreme Council of the Royal Arcanum, 356 Mass. 715, 247 N.E.2d 597, 597-98 (1969); Krueger v. North American Creameries, 75 N.D. 264, 27 N.W.2d 240, 242 (1947); King v. J.C. Penney Co., 238 S.C. 336, 120 S.E.2d 229, 230-31 (1961). In other states, elevator owners are held to a higher standard of care because they are considered common carriers, an idea we rejected in Hanks. Johnson v. Hopkins, 213 Ala. 492, 105 So. 663 (1925); Little Rock Land Co. v. Raper, 245 Ark. 641, 433 S.W.2d 836, 841-42 (1968); Jardine v. Rubloff, 73 Ill.2d 31, 21 Ill.Dec. 868, 872, 382 N.E.2d 232, 236 (1978); Cash v. Otis Elevator Co., 210 Mont. 319, 684 P.2d 1041, 1043 (1984); Petrie v. Kaufmann & Baer Co., 291 Pa. 211, 139 A. 878, 879 (1927); Lamb v. B & B Amusements Corp., 869 P.2d 926, 930 (Utah 1993); Murphy's Hotel, Inc. v. Cuddy's Adm'r, 124 Va. 207, 97 S.E. 794, 797-98 (1919). We are aware of only one state in which elevator owners are held to a higher standard of care even though they are not considered common carriers. Grant v. Allen, 141 Ga. 106, 80 S.E. 279, 280 (1913). See generally 26 AM. JUR. 2D Elevators and Escalators §§ 4, 14 (1996).

We continue to hold, as we did in Triangle Motors, that an elevator owner owes a duty of ordinary care to protect invitees from an unreasonable risk of harm because of the elevator. It follows that the district court erred in submitting the charge in this case. DMC objected that the charge "impose[d] a greater burden on it than required by law." This was all DMC was required to do to preserve error. TEX.R CIV. P. 274; Spencer v. Eagle Star Ins. Co. of America, 876 S.W.2d 154, 157 (Tex.1994) ("As we held in Moulton v. Alamo Ambulance Serv., Inc., 414 S.W.2d 444, 449-50 (Tex.1967), an objection is sufficient to preserve error in a defective instruction. A request of substantially correct language is not required. The applicable rule is Rule 274...."). The error was clearly harmful. Accordingly,the judgment of the court of appeals must be reversed and the case remanded to the district court for further proceedings.

Because the case may be retried, we address another issue raised by DMC to provide guidance to the district court on remand. See, e.g., Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 81 (Tex.1997) (citing Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex.1964) and Parker v. Bailey, 15 S.W.2d 1033, 1035 (Tex. Comm'n App.1929, holding approved)). DMC argues that any liability it had was for a premises defect rather than for some negligent activity and that the charge incorrectly omitted inquiry on an element of premises liability, that is, whether a condition of DMC's premises presented an unreasonable risk of harm to Liedeker. We agree. Liedeker claims that her injury was caused by the condition of DMC's elevator, not by any conduct of DMC at the time of her injury. Her claim is therefore based on premises liability. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex.1997). For an invitee like Liedeker to establish the liability of a premises owner like DMC, she must prove that "(1) a condition of the premises created an unreasonable risk of harm to the invitee; (2) the owner knew or reasonably should have known of the condition; (3) the owner failed to exercise ordinary care to protect the invitee from danger; (4) the owner's failure was a proximate cause of injury to the invitee." State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992). The charge in this case inquired about the third and fourth elements, except that it asked about a failure to exercise a high degree of care rather than a failure to exercise ordinary care, to which DMC objected. DMC did not request a question regarding the second element of premises liability, apparently conceding that it knew of the condition of the elevator, but it did request a question about the first element. The district court erred in denying DMC's request.

The court of appeals held that DMC failed to preserve its complaint because the record does not reflect that the district court denied DMC's requests. We disagree. The district court stated on the record that it would endorse DMC's requests:

[DMC's counsel]: Your Honor, the only...