Ellerbe v. Otis Elevator Co.
| Decision Date | 11 June 1981 |
| Docket Number | No. 17939,17939 |
| Citation | 618 S.W.2d 870 |
| Parties | Thophaus ELLERBE, Appellant, v. OTIS ELEVATOR COMPANY, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Helm, Pletcher & Hogan, Stephen W. Hanks, Houston, for appellant.
Talbert, Giessel & Stone, Alice Giessel and Jim Barker, Houston, for appellee.
Before COLEMAN, C. J., and PEDEN and SMITH, JJ.
This is a suit for wrongful death and survival damages arising from the death of plaintiff's son, Kenneth Allen Ellerbe, on October 19, 1973, in Harris County, Texas. The suit is based on the alleged defective design of the Otis elevator which had been designed, manufactured, and sold by the defendant. The trial court granted a motion for summary judgment which relied solely on Article 5536a, Texas Revised Civil Statutes Annotated (Vernon Supp.1980). This statute prohibits the filing of any suit for damages arising out of the defective or unsafe condition of real property or any equipment or improvement attached to such real property ten years after the substantial completion of the improvement "against any registered or licensed engineer or architect in this state performing or furnishing the design, planning, inspection of construction of any such improvement, equipment or structure or against any such person so performing or furnishing such design, planning, inspection of construction of any such improvement, equipment, or structure." Tex.Rev.Civ.Stat.Ann. art. 5536a, § 1 (Vernon Supp.1980). The statute further provides that:
There shall be commenced and prosecuted within ten years after the substantial completion of any improvement to real property, and not afterward, all actions or suits in court for damages ... for wrongful death ... arising out of the defective or unsafe condition of any such real property or any deficiency in the construction or repair of any improvements on such real property against any person performing or furnishing construction or repair of any such improvement; provided ... this section shall not apply and will not operate as a bar to an action or suit in court ... (b) against persons in actual possession or control of the real property as owner, tenant, or otherwise at the time ... the death occurs; ....
The plaintiff has raised two points of error: (1) the trial court erred in granting a summary judgment in favor of defendant because a fact issue exists as to whether the defendant retained control over the elevator as provided by section 2 of Article 5536a; (2) the trial court erred in granting a summary judgment on behalf of the defendant because said Article 5536a violates provisions of the Texas and United States Constitutions.
Summary judgment evidence establishes that Kenneth Ellerbe died when he fell down an open elevator shaft in the Gulf Building in Houston, Texas. Plaintiff alleged that the accident was caused by the defective design of the Otis elevator because it could be moved without a key from floor to floor, leaving the doors to the elevator shaft open on each floor. There was summary judgment evidence that the elevator was designed by registered engineers and architects employed by Otis Elevator Company. There was also evidence that the elevator was installed in the Gulf Building in 1928.
The first question to be determined is whether the elevator company is entitled to the protection of the statute. Section 1 affords protection to "any registered or licensed engineer or architect in this state" performing or furnishing the design, planning or inspection of construction of equipment or improvements attached to real property. It also protects "any such person" under the same circumstances.
When we consider the entire Act it appears that only registered or licensed engineers or architects are protected under section 1. Article 5536a was first enacted by the 61st Legislature in 1969. Tex.Laws 1969, ch. 418, § 1, at 1379. The title of that Act refers to any registered or licensed engineer or architect, and the emergency clause refers to registered or licensed engineers or architects only. While some meaning must be given to the words "any such person," we consider that it broadens the protection by affording it to engineers or architects licensed or registered in states other than Texas. Our conclusion is reinforced by the fact that a proviso attached to section 1 of the Act extends the ten-year period within which the cause of action must be initiated in cases where a claim for damages, contribution or indemnities is presented in writing "to the registered or licensed engineer or architect performing such services."
Article 5536a, was amended by adding section 2 extending the protection of the Act to "any person" performing or furnishing construction or repair of any improvements on real property. Tex.Laws 1975, ch. 269, § 1, at 649. An elevator in a multi-storied building obviously constitutes an improvement on real property. The manufacture of the elevator would be a person performing or furnishing construction of the elevator even though it did not install it in the building.
The appellant contends that since the Otis Elevator Company offered repair services for elevators which it manufactured, maintained an office in connection therewith in the City of Houston, and also kept a record in its office concerning this particular elevator, it comes within the provision:
(T)his section shall not apply and will not operate as a bar to an action or suit in court ... (b) against persons in actual possession or control of the real property as owner, tenant, or otherwise at the time ... the death occurs; ....
The evidence fails to raise a question of fact as to whether the elevator company is in "actual possession or control of the real property." There is no evidence that the elevator was being repaired at the time of the accident. Section 2 of Article 5536a is a sufficient basis for the summary judgment in favor of the Otis Elevator Company.
Ellerbe contends that Article 5536a violates certain provisions of the Texas and of the United States Constitutions. He cites sections 3, 13, 17, and 19 of Article 1 of the Texas Constitution and the Fourteenth Amendment to United States Constitution.
Section 13 of Article 1 provides, in part, that all courts shall be open to every person for an injury done him, in lands, goods, or personal reputation, and that they shall have remedy by due course of law. Tex.Const. art. 1, § 13. This Section of the Constitution does not create any new right, but is a declaration...
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