Jones v. Otis Elevator Co.

Decision Date08 December 1988
Docket NumberNo. 87-8776,87-8776
Parties27 Fed. R. Evid. Serv. 430 Carrie V. JONES, Plaintiff-Appellee, v. OTIS ELEVATOR COMPANY, Defendant/Cross-Claimant-Defendant, Appellant/Cross-Appellee, v. EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Defendant/Cross-Claimant-Plaintiff, Appellant/Cross-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Ben L. Weinberg, M. Diane Owens, Kathryn S. Whitlock, Atlanta, Ga., for Otis Elevator Co.

Kathleen M. Pacious, R. Chris Irwin & Associates, R. Chris Irwin, Atlanta, Ga., for Equitable Life.

Douglas R. Powell, Fortson & White, Atlanta, Ga., for Carrie V. Jones.

Appeals from the United States District Court for the Northern District of Georgia.

Before TJOFLAT and FAY, Circuit Judges, and FAWSETT *, District Judge.

FAY, Circuit Judge:

Defendant, Otis Elevator Company, appeals a jury verdict entered for plaintiff, Carrie Jones, in a diversity suit brought in the United States District Court for the Northern District of Georgia. In this personal injury suit, the plaintiff alleged Otis' negligent maintenance of an elevator resulted in the elevator's malfunction which proximately caused plaintiff's back injuries. On appeal, Otis assigns a long list of reversible error to several of the district court's jury charges and evidentiary rulings. Principally, Otis argues it was error to instruct the jury on the missing witness inference and negligence per se, and to admit the testimony of the plaintiff's expert. We find no error in the trial court's admission of the expert testimony nor with the court's charge on the missing witness inference. Further, although the trial judge may have erred by instructing the jury on negligence per se, due to the specific circumstances of this case, we find this error harmless. Therefore, we affirm.


Carrie V. Jones, appellee/plaintiff, worked as a maid in Northcreek Office Park in Atlanta. Ms. Jones was the only witness to the event which led to her back injuries. She testified that after completing her work on May 25, 1984, at approximately 7:45 p.m., she entered elevator number three with her maid cart on the seventh floor, intending to travel to the ground floor. The elevator did not stop on the ground level, but hit the bottom of the elevator shaft, bouncing several times. Ms. Jones stated that during the bouncing she felt her back pull. When the elevator doors opened, the elevator was several inches below the ground floor. Ms. Jones then exited the elevator pulling her maid cart behind her. 1

Ms. Jones brought this action against Otis Elevator Company (Otis), Schindler Elevator Corporation (Schindler), and Equitable Life Assurance Society of the United States (Equitable) to recover for her back injuries. 2 Schindler manufactured the elevator. Otis was under contract with Equitable, the building owner, to maintain the elevator in good repair. The trial judge granted Schindler a directed verdict at the close of the plaintiff's evidence which the plaintiff does not appeal. Otis and Equitable agreed to submit Equitable's crossclaim against Otis for indemnity to the trial judge for decision following the trial on plaintiff's claims. The jury returned a $75,000 verdict in favor of plaintiff against both Otis and Equitable. The trial judge then granted Equitable's crossclaim for indemnity against Otis.

Subsequently, Otis timely filed a Motion for Judgment Notwithstanding the Verdict or in the alternative, a Motion for New Trial and a Motion for Alteration or Amendment of Judgment. The trial judge denied all these motions. On appeal, Otis asserts numerous errors. Specifically, Otis contends it was error: 1) to instruct the jury on the missing witness inference, negligence per se and constructive knowledge/notice; 2) to admit the plaintiff's elevator expert testimony; 3) to admit testimony regarding two Otis maintenance reports from December, 1982; 4) to deny motions for directed verdict, new trial and judgment notwithstanding the verdict; and 5) to grant Equitable's crossclaim for indemnity. 3 We address each contended error in turn.

I. Jury Instructions
A. Missing Witness Inference

In closing argument, the plaintiff's counsel commented on Otis' and Equitable's failure to call three of their employees as witnesses. Plaintiff's counsel insinuated that if the defendants had called any of these employees to testify, the testimony would have proved prejudicial to defendants. The defendants did not object to these comments. The plaintiff requested a missing witness charge which the trial judge granted. The judge charged: "If a party fails to call a person who possesses knowledge about the facts in issue and who is reasonably available to him and who is not equally available to the other party, then you may infer that the testimony of that witness is unfavorable to the party who could have called that witness and did not do so." On appeal, Otis challenges this instruction, arguing the charge is improper since plaintiff made no showing that any missing witness was physically unavailable or outside plaintiff's subpoena power.

The question presented here is what foundation of unavailability must the requesting party lay to obtain the missing witness inference charge. The United States Supreme Court established the missing witness rule nearly 100 years ago when the Court stated "that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony if produced, would be unfavorable." Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021 (1893). Interpreting this language, courts have set forth two criteria which must be established before comment or instruction on the inference is appropriate. 4 Dent v. United States, 404 A.2d 165, 169 (D.C.1979); Georgia Southern & Florida Railway C. v. Perry, 326 F.2d 921, 925 (5th Cir.1964); McClanahan v. United States, 230 F.2d 919, 925 (5th Cir.), cert. denied, 352 U.S. 824, 77 S.Ct. 33, 1 L.Ed.2d 47 (1956); Ford v. United States, 210 F.2d 313 (5th Cir.1954); Western & A.R. Co. v. Morrison, 102 Ga. 319, 29 S.E. 104 (1897); Ga.Code Ann. Sec. 24-4-22 (1982).

First, the requesting party must establish the potential witness' unavailability in a physical or practical sense; and second, the potential testimony must be relevant and noncumulative. Georgia Southern & Florida Railway Company v. Perry, supra, 326 F.2d at 925 (5th Cir.1964). A witness' availability is not determined solely from his physical presence at the trial or his accessibility to subpoena. Rather, availability also will turn on the witness' relationship to the nonproducing party. A witness is unavailable in a practical sense when this relationship is such that it creates bias or hostility against the opposing party. McClanahan v. United States, 230 F.2d 919, 926 (5th Cir.1956); Trammell v. Williams, 97 Ga.App. 31, 101 S.E.2d 887, 890 (1958); see generally 3 Wigmore, Evidence Secs. 285-288 (4th Ed.1979). 5 Because of an employee's economic interests, the employer-employee relationship is recognized as one creating practical unavailability. Chicago College of Osteopathic Medicine v. George A. Fuller Co., 719 F.2d 1335, 1353 (7th Cir.1983); Western & A.R. Co. v. Morrison, supra; Annotation, Presumption-Failure to Call Witness, 5 A.L.R.2d 893, 896 (1949). 6

In this case, two of the potential witnesses were Otis elevator mechanics who serviced the elevator in question. The third missing witness was an employee of the building owner, Equitable, in charge of reporting to Otis any problem with the building's elevators. This employer-employee relationship is sufficient to establish the required practical unavailability. Hence, the first criterion has been met.

This relationship, however, does not end the inquiry. A party need not account for every witness cognizant of the facts with whom he shares a peculiar relationship. Western & A.R. Co. v. Morrison, supra, 29 S.E. at 106; Fields v. Yellow Cab Co. of Atlanta, 80 Ga.App. 569, 56 S.E.2d 845 (1949). Rather, the potential testimony must be superior to that relied on at trial. United States v. Llamas, 280 F.2d 392 (2nd Cir.1960). In this case, two missing witnesses were elevator mechanics who directly serviced the elevator in question. Although Otis' maintenance supervisor testified at trial, his testimony was based on the reports filled out by these service mechanics. Since at least one of the missing witnesses could have testified from personal knowledge regarding the service of the elevator in question, the testimony would have been both relevant and noncumulative. 7 The missing witness instruction, therefore, was permissible.

B. Negligence Per Se

Otis contends the instruction on negligence per se was reversible error since the plaintiff presented no evidence Otis violated any statute or ordinance. At trial, the only evidence presented regarding an ordinance was testimony by plaintiff's expert, Mr. Gober. Mr. Gober testified that an Atlanta ordinance required the terminal stopping device to be inspected twice a year. However, on cross examination, Mr. Gober admitted the inspection requirement allegedly violated by defendants was not mandated by law, but rather was merely recommended as a guideline for elevator inspections. 8 Neither plaintiff nor defendants requested the court to take judicial notice of the ordinance or formally presented the text of the ordinance as evidence. Despite this, the trial judge gave the negligence per se instruction requested by the plaintiff. The judge charged the jury that "negligence per se is a violation of a public duty required by law for the protection of the public." Although the defendants objected to this charge, they made no objection to the expert's discussion of the Code or manual. 9

Under Georgia law, the violation of a valid statute or ordinance constitutes negligence...

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