Hunt v. Jefferson Arms Apartment Co.

• Decision Date: 28 August 1984
• Docket Number: 47380,Nos. 47379,s. 47379
• Citation: 679 S.W.2d 875
• Parties: James HUNT, Plaintiff-Respondent, v. JEFFERSON ARMS APARTMENT COMPANY, Defendant-Appellant. James HUNT, Plaintiff-Appellant, v. LIEBERMAN CORPORATION, et al., Defendant-Respondents.
• Court: Missouri Court of Appeals

Page 875

679 S.W.2d 875

James HUNT, Plaintiff-Respondent, v. JEFFERSON ARMS APARTMENT COMPANY, Defendant-Appellant.

James HUNT, Plaintiff-Appellant, v. LIEBERMAN CORPORATION, et al., Defendant-Respondents.

Nos. 47379, 47380.

Missouri Court of Appeals,

Eastern District,

Division One.

Aug. 28, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 16, 1984.

Application to Transfer Denied

Nov. 20, 1984.

Richard O. Funsch, Richard J. Mehan, Jr., St. Louis, for Jefferson Arms Apartment Co.

Ray E. White, Jr., Clayton, L. Steven Goldblatt, St. Louis, for James Hunt.

Kenneth W. Bean, St. Louis, for Reliance Elevator Service.

Ben Ely, Jr., Ellen M. Edwards, St. Louis, for Lieberman Corp.

SNYDER, Presiding Judge.

Plaintiff James Hunt brought an action against Jefferson Arms Apartment Company (JAAC), Harold G. Lieberman, Alan L. Lieberman, Lieberman Corporation, and Reliance Elevator Service Company for injuries sustained by plaintiff when he fell down an elevator shaft during the renovation of the Jefferson Hotel building in St. Louis. Plaintiff appeals from the trial court's grant of motions for directed verdicts made by Lieberman Corp. and Reliance. JAAC appeals from the judgment and jury verdict awarding plaintiff $1,300,000 on his negligence action against it. This court consolidated the two appeals. The judgment is affirmed in part and reversed in part.

Plaintiff contends the trial court erred in: (1) granting Lieberman Corp.'s motion for directed verdict because there was evidence that Lieberman Corp. was engaged in a joint venture with JAAC and that Lieberman Corp. acted as JAAC's agent; and (2) granting Reliance's motion for directed verdict because there was evidence from which the jury could infer Reliance's negligence in failing to inform JAAC of a dangerous condition of its elevator.

JAAC alleges trial court error in denying JAAC's motion for directed verdict because: (1) plaintiff was an employee of H.B. Deal Contracting Company, an independent contractor, and the accident was caused by the negligence of plaintiff's co-employee for whose negligence JAAC was not responsible; (2) there was no substantial evidence to prove that the elevator was under JAAC's control at the time of the accident; and (3) there was no substantial evidence that JAAC knew or could have known that the door of the elevator shaft was open when plaintiff fell. JAAC also argues that the trial court erred in failing to order a remittitur and in entering judgment against JAAC as a partnership.

In December of 1976, JAAC, a limited partnership, acquired ownership of the Jefferson Hotel building in downtown St. Louis. JAAC then leased the property to Jefferson Arms Corp., which in turn hired Westview Management Company to manage the property. To renovate and rehabilitate the building, formerly a hotel, JAAC signed a construction contract with Locust Construction Company.

Harold and Alan Lieberman were the general partners of JAAC and were officers in the Jefferson Arms Corp., Westview, and Locust Construction. Westview and Locust Construction were wholly owned subsidiary corporations of Lieberman Corporation, which was yet another corporation in which Harold and Alan were officers.

Most of the actual work on the Jefferson Arms was performed by entities not controlled by the Liebermans. The construction work needed in the rehabilitation and reconstruction of the building was assigned by Locust Construction to H.B. Deal through two contracts: a construction management contract under which H.B. Deal agreed to manage and coordinate the construction and a sub-contract under which H.B. Deal agreed to perform the actual work.

In addition, JAAC contracted with Reliance to provide elevator maintenance services for elevators 5, 6 and 7, elevator 5 being the one where Mr. Hunt's fall occurred.

Plaintiff Hunt was employed by H.B. Deal at the Jefferson Arms site as an operator of a motor buggy. His job consisted mainly of loading construction debris into the motor buggy and hauling it out of the building and into a dumpster. In order to remove the debris from the multi-story structure, plaintiff would use the elevators in the building which were operated by other employees of H.B. Deal.

On the morning of March 10, 1977, plaintiff took his motor buggy with a load of debris from an upper floor down to the first floor in an elevator and then outside to the dumpster. He then returned to the first floor lobby to await an elevator. Plaintiff parked his buggy and went to feel for the bell to call the elevator operator. As he was groping for the bell, plaintiff fell down the elevator shaft for elevator number five, sustaining serious injuries in the fifteen to eighteen foot fall. There was no evidence of exactly how plaintiff fell, how far open the elevator door was, whether the bypass key was being used or, whether indeed the plaintiff himself had opened the elevator door.

There was evidence that lighting on the first floor was inadequate and that plaintiff had trouble adjusting his eyes to the relative darkness because he had just re-entered the building after taking debris outside to the dumpster.

Plaintiff's theory is that the elevator operator moved the elevator cab away from the first floor, but had left the doors to the shaft open. Normally, the elevator would not run with the doors to the shaft open because the opening of the elevator doors would break the necessary electrical contact. If the elevator operator, however, inserted a key into a bypass switch, which was inside the elevator cab, turned and held the key, the elevator could move regardless of whether the doors to the elevator shaft were open.

Plaintiff's expert on elevators testified that the contact could also be bypassed by tying it down with a wire or string. There was no evidence that a wire or string had been used. Charles J. Follen, an officer of Reliance, said to the best of his knowledge he saw a key in the bypass switch after plaintiff's fall.

Addressing JAAC's points first, this court combines its first three points into one question: Did the trial court err in denying JAAC's motion for a directed verdict? Put another way, did plaintiff adduce sufficient evidence to make a submissible case? This court holds he did not and that JAAC's motion for a directed verdict should have been granted.

Plaintiff argues that JAAC is liable either on the theory that JAAC was liable for the torts of its independent contractor or because JAAC directed or condoned the negligent operation of the elevator.

Appellate review of whether a trial court erred in overruling a defendant's motion for directed verdict consists of construing all evidence and inferences from the evidence in the plaintiff's favor to determine whether the plaintiff has made a submissible case. Green v. Crunden Martin Mfg. Co., 575 S.W.2d 930, 932 (Mo.App.1978).

Plaintiff's action against JAAC is based upon JAAC's alleged negligence in allowing the elevator to be operated with a key bypass switch. "Actionable negligence consists of three elements: a duty owed by the defendant to the plaintiff, a breach of that duty by the defendant, and an injury to the plaintiff which is caused by the breach of the duty." Carver v. Schafer, 647 S.W.2d 570, 572 (Mo.App.1983).

The alleged duty owed by JAAC to plaintiff is premised on JAAC's status as owner of the Jefferson Arms building and plaintiff's status as an invitee. Neither JAAC's position as a landowner nor plaintiff's identity as an invitee are questioned, although at the time of plaintiff's fall the premises were leased to the Jefferson Arms Corporation, not a party to this action.

The general rule is that the owner of the premises owes an invitee the obligation to use reasonable and ordinary care to prevent injury to the invitee. Behnke v. City of Moberly, 243 S.W.2d 549, 554[8, 9] (Mo.App.1951).

The liability of the landowner for injuries received on the premises, however, is dependent upon the device which caused the injury being in the possession and control of the landowner. McKeighan v. Kline's, Inc., 339 Mo. 523, 98 S.W.2d 555, 559 (1936). Thus, the liability of the landowner should more accurately be phrased the liability of the occupant or possessor of the land.

That the device causing the injury must be in control of the landowner in order for liability to attach is recognized by plaintiff. Plaintiff's verdict director, ¹ MAI 22.03 modified, includes a requirement that the jury find JAAC in control and possession of the elevator before a verdict could be rendered in plaintiff's favor.

The verdict director is based upon Restatement (Second) of Torts § 343 (1965), ² see MAI 22.03, Committee's Comment which speaks in terms of the liability of a possessor of land. The issue thus becomes whether there was evidence that JAAC was a possessor of land, or to paraphrase plaintiff's verdict director, that the elevators were within the possession and control of JAAC.

H.B. Deal was the independent contractor to whom the task of renovating the Jefferson Arms building had been assigned. There is no evidence that JAAC or Locust Construction retained the right to control the builder in the performance of the contracts which H.B. Deal signed with Locust Construction.

Neither of the Liebermans, who were officers of Locust Construction and general partners of JAAC, ever instructed H.B. Deal as to how H.B. Deal was to do its job. H.B. Deal did much of the work itself and was to coordinate the balance of the work done by other contractors which had signed contracts with H.B. Deal. H.B. Deal had physical control of the building. More important, it was an H.B. Deal employee who operated the elevator.

A possessor of land is defined by Restatement (Second) of Torts § 328 E (1965). ³ Possession within the context of a landowner's liability for injuries occurring on the premises, is used " ... strictly in the factual sense." Restatement (Second) of Torts ...