Ginnis v. Mapes Hotel Corp.

• Decision Date: 04 June 1970
• Docket Number: No. 5958,5958
• Parties: , 42 A.L.R.3d 769 Georgia C. GINNIS, Appellant, v. MAPES HOTEL CORPORATION and Doro-Matic, a division of Republic Industries, Inc., Respondents.
• Court: Nevada Supreme Court

Page 135

470 P.2d 135

86 Nev. 408, 42 A.L.R.3d 769

Georgia C. GINNIS, Appellant, v. MAPES HOTEL CORPORATION and Doro-Matic, a division of

Republic Industries, Inc., Respondents.

No. 5958.

Supreme Court of Nevada.

June 4, 1970.

Howard F. McKissick, Jr., Reno, for appellant.

Vargas, Bartlett & Dixon and John C. Renshaw, Reno, for respondent Mapes Hotel Corp.

Richard P. Wait, Reno, for respondent Dor-O-Matic.

OPINION

COLLINS, Chief Justice.

This is an appeal in a personal injury action from a jury verdict in favor of respondents (defendants below). We conclude prejudicial error was committed, reverse that judgment and remand the action for a new trial as to respondent Dor-O-Matic. We affirm the judgment as to respondent Mapes Hotel Corporation.

Appellant, Georgia C. Ginnis (plaintiff below), a business invitee in the Mapes Hotel in Reno, Nevada, was caught in an automatic door which closed upon her while she was leaving the hotel, injuring her. The door was designed and manufactured by Dor-O-Matic.

Georgia, her husband and a friend, Mrs. Atkinson, were customers in the casino area of the Mapes when they decided to leave. Georgia's husband left first, followed by Mrs. Atkinson. Both negotiated the first of two sets of automatic doors successfully, and Mr. Ginnis had passed through both sets of doors. As Georgia, who followed Mrs. Atkinson by a few feet, stepped across the threshold of the inner door, it closed on her, knocking her over the rail alongside the door and pinning her to it. Georgia's husband tried to extricate her from the predicament alone, but when he could not force open the door sought help from a hotel cashier, Fred Brocklehurst. Georgia's husband said it took them both to force the door open. Brocklehurst, a 240-pound man, said he opened the door alone with one hand.

What happened immediately following that event is in dispute. Georgia and her husband both testified a maintenance man carrying a tool box removed the threshold plate and worked on the door's mechanism. The maintenance man denied he had a tool box, removed the plate, or worked on the mechanism, but with a hotel security officer, simply walked through the door several times, and its functioned property. The security officer filed an accident report which was later admitted in evidence over Georgia's objection.

Appellant sued respondents upon four theories: negligence, implied varranty, res ipsa loquitur, and strict tort liability. She alleged in her cimplaint, among other things, that the door supplied by Dor-O-Matic was 'created, designed, manufactured, operated, repaired, inspected, delivered and supplied * * * in a dangerous and defective condition and manner.'

During the trial, Georgia called William W. Baker, chairman of the engineering design department of the University of Nevada School of Engineering, as an expert witness. He testified that from his investigation of the door and its schematic drawings, the cause of the door closing as it did on Georgia was a malfunction of the safety relay in the door mechanism and that it was a condition dangerous to human safety. He was of the opinion that the design of the automatic door had the inherent capability to do just what it did to Georgia. He described two safety features which could have prevented closing as it did; he said the door could have been equipped with a duplicate control network or 'redundant system,' or a trip or pressure switch such as is commonly found on elevator doors to prevent them from closing on passengers.

Dor-O-Matic called its engineering vice president, Paul W. Martin, designer of the door in question, as its expert witness. He testified Dor-O-Matic designed, manufactured and sold the door but did not install it or replace any parts in the door after its installation in 1964. He stated his company had received no complaints concerning the operation of this or other doors and that only their competitors insinuated the door was defective. He agreed with Professor Baker that the safety relay must have been responsible for the door's malfunction when Georgia was caught in it.

During the trial, Georgia sought to call two other persons to testify who had been caught in the same door subsequent to her experience. The court refused the request. Similarly, Georgia offered in evidence 19 repair orders on automatic doors at the Mapes. The court allowed in evidence only three relting to the same door in which she was caught, and refused the others.

In settling instructions, the lower court gave Georgia a res ipsa loquitur instruction against the Mapes Hotel only, refused any instruction on strict tort liability, and refused certain of her instructions on the duty of an invitor to an invitee. Appellant also contends the trial judge was guilty of judicial misconduct and indulged in prejudicial interference by his conduct of the trial.

The issues presented for our review upon this appeal are these:

I. Whether an instruction should have been given applying res ipsa loquitur to both defendants and not just against the Mapes Hotel?

II. Whether an instruction on strict liability should have been given?

III. Whether the instructions on the duty of an invitor to an invitee were adequate under the circumstances?

IV. Whether the lower court erred in admitting the 'accident report' made by the Mapes Hotel security guard because it contained hearsay?

V. Whether the lower court erred in refusing to allow appellant to have at least two other witnesses testify that they were similarly caught in the same door around the time appellant was injured?

VI. Whether the lower court erred in refusing to allow appellant to introduce evidence of repairs on the same and similar doors prior to and subsequent to appellant's accident?

VII. Whether the trial judge was guilty of judicial misconduct and interference?

1. Whatever might be said about the merits of Georgia's first claim of error that the trial court failed to give a res ipsa loquitur instruction against both Mapes and Dor-O-Matic, it is not preserved for our consideration. A careful review of the record conclusively establishes that Georgia's counsel withdrew the res ipsa loquitur instruction against Dor-O-Matic. We will not consider on appeal an instruction not offered to the trial court. NRCP 51; e.g., Otterbeck v. Lamb, 85 Nev. 456, 456 P.2d 855 (1969).

2. Georgia offered, and the trial court refused, three instructions which would have permitted the jury to consider the doctrine of strict tort liability against Dor-O-Matic. We think that was error requiring reversal and a new trial.

In Shoshone Coca-Cola Bottling Co. v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966), we judicially adopted the doctrine of strict tort liability for Nevada in the field of foodstuffs and bottled beverages. We now extend that doctrine to the design and manufacture of all types of products. Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965). In doing so, a plaintiff, in relying upon the doctrine, must still prove his case. As we said in Shoshone, 'He must still establish that his injury was caused by a defect in the product, and that such defect existed when the product left the hands of the defendant. The concept of strict liability does not prove causation, nor does it trace the cause to the defendant.' Id. at 443, 420 P.2d at 858.

In proving a case under that doctrine, adequate and proper standards must be established determining who is liable, the type of harm for which liability exists, and the duration of time over which that liability extends.

In Shoshone we said that a manufacturer and distributor of a bottled beverage is liable for injuries caused by defects that existed when the product left its hands.

After examining a multitude of cases and legal writers, we think the most accurate test for a 'defect' within strict tort liability is set forth in Dunham v. Vaughan & Bushnell Mfg. Co., 247 N.E.2d 401, 403 (Ill.1969), where it was held: 'Although the definitions of the term 'defect' in the context of products liability law use varying language, all of them rest upon the common premise that those products are defective which are dangerous because they fail to perform in the manner reasonably to be expected in light of their nature and intended function.'

As shown by the evidence admitted at trial through Professor Baker, and under the authority of Shoshone and Dunham, appellant adduced sufficient proof to be entitled to instruction of the jury on the doctrine of strict tort liability for defect in design of the door by Dor-O-Matic, because it failed to perform in the manner reasonably to be expected in light of its nature and intended function and was more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community. See also Greeno v. Clark Equip. Co., 237 F.Supp. 427, 429 (N.D.Ind.1965).

On the other hand, there was no evidence tending to show the defective relay was the same one installed by Dor-O-Matic before the door left the manufacturer; in which event, if there was a substitution of the part through remodeling or repair of the door, someone else, but not Dor-O-Matic, would be liable to appellant if the design were found not to be defective. The defect must have been present when the product left the manufacturer or he cannot be held liable. Shoshone Coca-Cola Bottling Co. v. Dolinski, supra; Suvada v. White Motor Co., supra; Restatement (Second) of Torts § 402A(1)(b).

As to the time for which a manufacturer, distributor or other person may be held liable for his product, we believe the correct ruling was announced in Dunham v. Vaughan & Bushnell Mfg. Co., supra, which involved a hammer used for 11 months when a chip flew off the head and struck the plaintiff in the eye as he was striking a metal pin. Justice Walter Schaefer, writing for the unanimous Illinois Supreme Court, said the answer is 'properly supplied by a jury.' 247 N.E.2d...