Little Rock Land Co. v. Raper

• Citation: 433 S.W.2d 836,245 Ark. 641
• Decision Date: 18 November 1968
• Docket Number: No. 5--4728,5--4728
• Parties: , 5 UCC Rep.Serv. 1248 LITTLE ROCK LAND COMPANY, Appellant, v. Ruth RAPER et al., Appellees.
• Court: Supreme Court of Arkansas

Page 836

433 S.W.2d 836

245 Ark. 641, 5 UCC Rep.Serv. 1248

LITTLE ROCK LAND COMPANY, Appellant, v. Ruth RAPER et al., Appellees.

No. 5--4728.

Supreme Court of Arkansas.

Nov. 18, 1968.

Wright, Lindsey & Jennings, by Robert D. Cabe, Little Rock, for appellant.

Rose, Meek, House, Barron, Nash & Williamson, Little Rock, and Hardin & Rickard, Benton, for appellees.

FOGLEMAN, Justice.

Little Rock Land Company appeals from a judgment for $2,500 in personal injury damages in favor of appellee Ruth Raper and from the denial of a recovery of the amount of this judgment by it from Westinghouse Electric Corporation. Ruth Raper claimed injuries to her left hand and arm when the doors to an elevator in the Doctors Building, an office building owned by appellant, closed on her. On the occasion of her injury, she was in the building en route with her husband to the office of a doctor by whom he was being treated. Her injury occurred when she attempted to board an empty elevator which was one of three elevators furnished by appellant for the use of those having business in the building. The elevators were designed, manufactured, and installed by Westinghouse. They were of a type known as automatic self-service elevators, but they can be changed over to manual operation.

Mrs. Raper testified that she got one foot and her arm into the elevator when the door closed rapidly, in spite of her putting her hand against it. She said she kept 'bouncing' the doors by throwing her hands against them but they didn't open. She said that the elevator caught her, and drug her up a piece, but the door pushed her loose and she fell at her husband's feet. She felt bare metal closing against her arm. While she said both hands were caught in the door, only one was injured. There was no attendant on duty nor were there any instructions on the use of the elevator posted outside it. There was no safety button for opening the door from the outside. She had been on these elevators several times before without having had any trouble. She stated that she had never noticed any kind of rubber edging on the doors. Her testimony was substantially corroborated by her husband. Both Mr. and Mrs. Raper denied seeing any rubber strip on these elevator doors. Mr. Raper said that the doors were almost closed when Mrs. Raper put her arm in trying to keep them from shutting. He said that she jumped back, jerked her arm out of the door, and fell at his feet.

The elevators are checked daily by an employee of appellant to be sure that they are operating properly and a trial run is made daily. An officer of appellant has offices in the building and uses the elevators constantly, as do maintenance employees. Malfunctions do occur and adjustments are necessary from time to time. All adjustments are made and maintenance work done by Westinghouse under a service contract. This contract requires the employees of Westinghouse to use all reasonable care to maintain the elevators in proper and safe operating condition and to periodically examine all safety devices and governors. One clause of this contract reads as follows:

'The Corporation shall not be required to make safety tests, nor to install new attachments on the elevator which may be recommended or directed by Insurance Companies, or Government, State, Municipal, or other authorities.'

There were two sets of doors at the entrance to the elevator. Both sets consisted of two doors that met in the middle of the entrance opening when closed. The outer doors were called 'hatch doors' and constituted the entrance to the elevator shaft. The inner doors were 'car doors' and attached to the elevator car itself. There is a safety strip edged with rubber from floor to ceiling on each of the elevator car doors. When the doors are open, these edges protrude beyond the outer edges of the two doors on the elevator car. They are designed to prevent the doors from closing when touched. When the doors close, these safety strips retract but one of them always overlaps the space between the two car doors. There are also two safety light beams across the elevator opening. These are 'electric eye' beams. When either of the beams is broken, the doors will not close. One beam is 10 to 12 inches and the other 42 inches above floor level. The width of the hatch door is approximately one and one-half inches and the width of the hatch and car doors combined is approximately nine inches. There is a clearance of one and one-fourth inches between the car to the wall line of the elevator shaft. The safety edge is about six inches from the outer edge of the hatch door. There was evidence that the safety devices were in identically the same condition as when installed and there had been no change in the safety devices. Appellant's witnesses testified that the elevator conformed to all requirements of the American Standard Code. The owners of the building did not attempt to adjust or regulate the controls or safety equipment. All adjustments were made by Westinghouse employees.

Immediately after the incident was reported to appellant's officer in charge of the building, he checked the elevator and found that the light beams and safety strips were operating properly. A Westinghouse elevator mechanic made weekly inspections. Otherwise, he only came to the building when called by a representative of appellant to make a needed adjustment. This incident was not reported to Westinghouse until the next weekly inspection. The Westinghouse representative then found the safety devices functioning normally.

Appellant's officer admitted that it was possible for one to get his hand in the door without breaking the light beams. The representative of Westinghouse stated that if Mrs. Raper failed to hit the safety edge and failed to break either of the light beams across the opening, the door could conceivably have closed on her hand if at the last moment she stuck it into the opening. According to him, the opening would be restored only if the safety edge was hit or one of the light beams broken. He stated that appellee's injury could have occurred if her hand was in an upright position or at an angle.

This case was tried by the circuit court without a jury. The pertinent findings of fact of the circuit judge were:

'* * * because the instrumentality, in this instance an elevator, was under the exclusive control of the defendant, the doctrine of res ipsa loquitur applies. * * * there was roughly a six inch space between the inner door and outer door and the safety device being on the inner door, would permit a person to insert a hand or arm inside the outer door at such an angle that would permit the closing of the door without obtaining the benefit of any safety device. This in the Court's opinion, is what occurred. It might have not been foreseen by the engineer who designed the elevator, yet it is the only reasonable explanation of the occurrence which can be arrived at. * * *

* * * the Court must find against the cross complaint because Westinghouse's contract with the counter-claimant was to service the elevator and when the elevator was purchased the counter-claimant took the equipment as it was at the time of the purchase.'

Appellant made timely motions for a 'directed verdict' on the complaint of appellee Raper, and now urges that the trial court erred in failing to grant these motions. The thrust of its argument on this point is that the court erroneously applied the doctrine of res ipsa loquitur.

There is no question that Mrs. Raper was an invitee of Little Rock Land Company in its building. One who invites the general public into his place of business is required to exercise ordinary care to keep it reasonably safe for all invitees. Davis v. Safeway Stores, Inc., 195 Ark. 23, 110 S.W.2d 695. The owner is not an insurer of the safety of invitees on his premises, but his liability to an invitee must be based upon negligence. Kroger Grocery & Baking Co. v. Dempsey, 201 Ark. 71, 143 S.W.2d 564; Dr. Pepper Co. v. De Freece, 234 Ark. 450, 352 S.W.2d 579. He does assume the duty to exercise reasonable care to the end that such premises shall not contain dangerous obstructions, pitfalls or the like which result in injury to an invitee. An invitee may recover his damages from the owner for injuries sustained without fault or carelessness on his own part, by reason of the unsafe condition of the premises if such condition is the result of the owner's failure to use ordinary care to prevent such injuries and to give timely notice to invitees or the public. St. Louis I.M. & S. Ry. Co. v. Wirbel, 104 Ark. 236, 149 S.W. 92, Ann.Cas.1914C, 277. An owner has been held liable when injury could have been avoided by timely notice of a defective condition on its premises to invitees and the general public. St. Louis I.M. & S. Ry. Co. v. Dooley, 77 Ark. 561, 92 S.W. 789. The owner is liable regardless of his lack of knowledge of the defective condition if it was also unknown to an injured invitee, where the surrounding circumstances are such that the former could and would have known of the dangerous condition had he exercised reasonable care and foresight for the safety of those who might come upon his premises by invitation, express or implied. Faulkinbury v. Shaw, 183 Ark. 1019, 39 S.W.2d 708. An invitee is entitled to be warned of a latent danger known, or which by the exercise of ordinary care should be known, to an owner or his employees. Dixon v. United States, 296 F.2d 556 (8 Cir. 1961).

Where elevators are concerned, the duty of the owner or occupier of permises is even greater. He has the same duty to protect passengers using his elevators from injury as do common carriers of passengers, i.e., to exercise the highest degree of kill, care and foresight consistent with the practical operation of the elevators to guard against accidents and injuries to passengers. Sweeden v. Atkinson Improvement Co., 93 Ark. 397, 125 S.W. 439, 27 L.R.A.,N.S.,...