Minden v. Otis Elevator Co., 56006

• Decision Date: 12 June 1990
• Docket Number: No. 56006,56006
• Citation: Minden v. Otis Elevator Co., 793 S.W.2d 461 (Mo. App. 1990)
• Parties: Thomas A. MINDEN, Plaintiff-Respondent, v. OTIS ELEVATOR COMPANY, Defendant/Third-Party Plaintiff-Appellant, v. CASSIDY PLASTERING CO., INC., Third-Party Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 461

793 S.W.2d 461

Thomas A. MINDEN, Plaintiff-Respondent, v. OTIS ELEVATOR COMPANY, Defendant/Third-Party Plaintiff-Appellant, v. CASSIDY PLASTERING CO., INC., Third-Party Defendant-Respondent.

No. 56006.

Missouri Court of Appeals,

Eastern District,

Division Two.

June 12, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied July 11, 1990.

Application to Transfer Denied Sept. 11, 1990.

George F. Kosta, St. Louis, for defendant/third-party plaintiff-appellant.

William R. Hirsch, Larry D. Valentine, St. Louis, Mark Hirschfield, Clayton, for plaintiff-respondent.

CRANDALL, Judge.

Plaintiff, Thomas A. Minden, was employed by Cassidy Plastering Co., Inc. (Cassidy). Cassidy subcontracted with a general contractor, McCarthy Brothers Construction Co. (McBro), to do drywall plastering for the restoration of an office building. Plaintiff was injured when the elevator platform (staging) he was riding fell a distance of about 54 feet before coming to an abrupt stop.

Plaintiff sued subcontractor, Otis Elevator Co. (Otis), for negligently inspecting, repairing, operating, and/or maintaining the staging. Otis then brought a third-party action against Cassidy for contractual indemnity. The claim for bodily injury was tried before a jury, resulting in a $150,000 judgment in favor of plaintiff and against Otis. The third-party claim was severed and tried without a jury, resulting in a judgment for Cassidy. Otis, defendant/third-party plaintiff, appeals from both judgments. We affirm.

The first two points of Otis on appeal claim error in the jury-tried case. We review that evidence in the light most favorable to the verdict. Massey-Ferguson Credit Corp. v. Black, 764 S.W.2d 137, 145 (Mo.App.1989). A jury verdict will not be overturned unless there is a complete absence of probative facts to support the verdict. Id.

McBro subcontracted with Otis to install elevators in the building. Otis installed, maintained and operated a staging in one of the elevator shafts to move construction tools and workers during the construction process.

There were three means of controlling the movement of the staging. First, a worker on the ground floor could operate a hoist that controlled a cable. The cable extended the entire length of the shaft, over the top beam and back down the shaft, where it attached to the staging. Second, a worker riding the staging could operate a skyclimber, which is a motorized device attached to the staging. A short cable hanging from the top beam threads through the skyclimber and then through a hole in the staging. The short cable does not extend to the bottom of the shaft. A safety device (crosby) stops the staging at the bottom of the short cable by forming a loop that is larger than the hole in the staging floor. The third means of controlling the staging was a deadman foot brake on the staging that, unless depressed, prevented the staging from moving.

Cassidy employed an evening shift to do drywall work in the elevator shafts. On the night of the accident, an Otis supervisor, Paul Linck (Linck), operated the staging from the ground floor to get the Cassidy workers to the ninth floor. Once at the ninth floor, the Cassidy workers got off the staging and called down the shaft for Linck to bring the staging back down. Linck then brought the staging to a level somewhere between the ninth and ground floors, disconnected the hoist cable, and connected the skyclimber cable. He then sent the staging back to the Cassidy workers somewhere on the upper floors. At trial Linck could not recall how he had attached the skyclimber or whether he had attached the crosby at the end of the short cable.

Throughout their shift, the Cassidy workers operated the staging to move between the top and ninth floors by using the skyclimber. Linck left the worksite about 12:30 a.m. The four Cassidy workers, including plaintiff, began to leave at the end of their shift (about 1:00 a.m.) by boarding the staging at the twelfth floor. Using the skyclimber, they began to descend to the ground floor. Somewhere close to the seventh floor, the short cable came through the bottom of the staging, pulled clear of the skyclimber, and the staging fell about 54 feet through the shaft. The staging stopped near the second floor when one of the Cassidy workers activated the deadman foot brake.

Linck had instructed the Cassidy workers how to operate the staging themselves by using the skyclimber and foot brake. Linck knew that they thereafter routinely used the staging to move themselves. The Cassidy workers were never informed, however, that the skyclimber method employed a short cable and crosby which, if not properly rigged, would allow the staging to fall freely down the shaft.

Otis first claims the trial court erred in overruling its motions for a directed verdict and for judgment notwithstanding the verdict because the evidence was insufficient in four areas to make a jury submissible case of negligence. Otis claims the evidence failed to show: (1) that Otis had a duty to ensure the reasonably safe condition of the staging; (2) that Otis had knowledge of the absence of a crosby on the short cable on the evening the staging fell; (3) that the crosby was missing when the accident occurred; and (4) that the absence of a crosby renders the staging unreasonably dangerous.

One of the elements of a cause of action for negligence is the existence of a duty on the part of defendant to protect plaintiff from injury. Faheen By Hebron v. City Parking Corp., 734 S.W.2d 270, 272 (Mo.App.1987). A company that installs a self-service elevator has a duty to exercise a degree of care commensurate with the likelihood of persons being injured by reason of defects in the equipment or faulty construction. Ward v. City National Bank & Trust Co. of Kansas City, 379 S.W.2d 614,...