Minott v. F. W. Cunningham & Sons

Decision Date28 April 1980
PartiesCheryl T. MINOTT, Administratrix of the Estate of Paul F. Minott v. F. W. CUNNINGHAM & SONS and Otis Elevator Company of Maine, Inc. and Otis Elevator Company of New Jersey, Inc.
CourtMaine Supreme Court

Hewes, Culley, Feehan & Beals, Peter W. Culley (orally), Marcica F. Sawin, Portland, for plaintiff.

Richardson, Tyler & Troubh, Harrison L. Richardson (orally), S. Peter Mills, III, Wendell G. Large, Portland, for F. W. Cunningham & Sons.

Norman & Hanson, Stephen Hessert (orally), David C. Norman, Theodore H. Kirchner, Portland, for Otis Elevator Co.

Before WERNICK, GODFREY and GLASSMAN, JJ., and DUFRESNE, A. R. J.

GLASSMAN, Justice.

The appellants, Otis Elevator Company of Maine, Inc. and Otis Elevator Company of New Jersey, Inc., herein referred to jointly as "Otis," 1 appeal from a judgment entered as amended on December 10, 1979, following a jury trial in the Superior Court, Cumberland County. The jury awarded the appellee, Cheryl Minott, $44,825 in compensatory damages for the wrongful death and conscious pain and suffering of her husband, Paul Minott. Otis argues that the presiding Justice erred in two evidentiary rulings, in his instructions to the jury and in his denial of motions for judgment notwithstanding the verdict and for a mistrial. We affirm the judgment. 2

Paul Minott died from injuries he received on July 20, 1972 in a fall down an elevator shaft in a Portland building owned by his employer, Associated Hospital Services (AHS). Prior to the time of Minott's death, AHS had commissioned F. W. Cunningham & Sons (Cunningham), a general contractor, to perform extensive renovations in the building. Otis had subcontracted to convert a freight elevator in the rear of the building into an elevator suitable for passenger service and to install another elevator in the building.

Otis began work on the alteration of the rear elevator in March of 1972, removing the original biparting hoistway doors, the call buttons which directed the elevator to each floor and the door interlocking devices which prevented the hoistway doors from opening unless the elevator car was at the landing and the car from moving unless the doors were closed. Otis installed a smaller, passenger-sized door frame and sill at each landing. In late March, Otis' employees went on strike and work on the rear elevator was not resumed prior to Minott's death. As a temporary measure during the strike, Cunningham removed plywood barriers that it had placed against the open entrances to the shaft and installed at each landing a swinging hoistway door made of plywood. Cunningham equipped each door with a self-closing mechanism and with a lock which could be opened by a key whether or not the elevator car was present at that level. Cunningham then used the elevator to transport building materials.

AHS moved its operations into the building in late June of 1972 and received from Cunningham the two keys to the rear elevator. Minott, a mail clerk for the office services department of AHS, was given one of these keys because he needed to use the elevator to transport a mail cart from floor to floor several times a day to pick up and to deliver mail throughout the building. On the day of the accident, Minott had taken the elevator to the third floor to deliver mail. While Minott was on that level, another AHS employee used the elevator to transport some items from the basement to the fourth floor. Minott then returned to the elevator with his mail cart, unlocked the door and stepped into the empty elevator shaft.

Following trial, the jury by special verdict determined that Minott, Cunningham and Otis were each guilty of negligence which proximately caused the death and that the negligence of Minott was equal to that of Cunningham but less than that of Otis. 3 Accordingly, the Superior Court entered judgment against Otis and for Cunningham.

I

During the direct examination of Ellis Hanson, the manager of Otis, he was asked to relate to the jury what John Doyle, Cunningham's foreman, had told him in a telephone conversation, which occurred during the period of the strike, in late April or early May of 1972. The presiding Justice sustained an objection to admission of this evidence on the ground of hearsay. Otis then made the following offer of proof:

Doyle: "I want to use the elevator." or "Can we use the elevator."

Hanson: "I don't think you should."

Doyle: "What if we install swinging doors."

Hanson: "I don't think that's a good idea, but if you want to do that you had better check with the State Elevator Division."

Otis contends the presiding Justice erred in excluding this conversation because it was offered for the non-hearsay purposes of showing that Cunningham had notice of the risk of using the uncompleted elevator and that Otis had no knowledge of the elevator's use and did not authorize its use. Otis also maintains that the evidentiary ruling constituted prejudicial error because the excluded testimony was of crucial relevance to its position at trial that it was not in control of the elevator at the time of Minott's death. It is clear that the admission of this evidence to show notice, lack of knowledge and lack of authorization was not barred by the operation of the hearsay rule because the extrajudicial statements were not offered for their truth. See M.R.Evid. 801(c).

Even though the proffered testimony was improperly excluded as hearsay, the error of the presiding Justice did not prejudice a substantial right of Otis. See M.R.Evid. 103(a). "Prejudicial injury occurs only if the evidence excluded was relevant and material to a critical issue and if it can with reason be said that such evidence, if admitted, would probably have affected the result or had a controlling influence on a material aspect of the case." Towle v. Aube, Me., 310 A.2d 259, 264 (1973).

Here, Cunningham's notice of the risk was clearly established by evidence that it had installed the plywood doors, had equipped the doors with locks and had permitted use of the elevator in that condition. The excluded statements are at best ambiguous on the issue of knowledge. Even if the statements showed a lack of knowledge, they would have only a cumulative effect because Hanson testified that Otis never knew the elevator was being used. Similarly, Otis cannot claim that the excluded testimony prejudiced its ability to show that it had not authorized Cunningham to use the elevator because the presiding Justice allowed Hanson to testify that Otis had never given Cunningham such permission. Furthermore, whether Otis knew of, or permitted, the use of the elevator in late April or early May is only marginally relevant to the issues of knowledge and authorization at the time of the accident in July. Otis' employees returned to the job site ten days before the accident, and one employee testified that he saw Minott using the elevator. The rebuttal impact of the excluded evidence would therefore be slight. Because the proffered evidence was marginally relevant and largely cumulative on the material issue of control, the exclusion of this evidence did not constitute prejudicial error.

II

Over the objections of Otis at trial, two witnesses who were state elevator inspectors in 1972 testified that the customary practice within the elevator industry at the time of the decedent's death was for the contractor who was performing the renovations to maintain care, custody and control over the elevator until the completion of the work. On appeal Otis contends the presiding Justice erred in admitting this testimony on the grounds that the testimony was irrelevant, that the witnesses were incompetent to testify on the issue of control between contractor and subcontractor, that the subject matter was not a proper area for expert testimony because it did not involve specialized knowledge and was not helpful to the jury and that the testimony was unduly prejudicial because the issue of who had control over the elevator at the time of the accident was crucial to its case.

As with determinations of relevance and the balancing of probative value against prejudicial effect, preliminary questions concerning the qualifications of experts and the permissible areas of expert testimony are committed to the sound judicial discretion of the presiding Justice. M.R.Evid. 104(a); e. g., Parker v. Hohman, Me., 250 A.2d 698, 702 (1969). The exercise of this discretion will not be disturbed absent a clear abuse of discretion or an error of law. E. g., State v. Libby, 153 Me. 1, 8, 133 A.2d 877, 881 (1957).

Traditionally, courts prohibited witnesses from giving an opinion or conclusion on an ultimate fact in issue in a case. E. g., State v. Libby, supra, 153 Me. at 9, 133 A.2d at 882; Starkey v. Lewin, 118 Me. 87, 88, 105 A. 858, 859 (1919); United States v. Spaulding, 293 U.S. 498, 506, 55 S.Ct. 273, 276, 79 L.Ed. 617 (1935). This "ultimate issue" rule was predicated on the theory that allowing such testimony usurped the function of the fact finder, creating the danger that the opinion of an expert or other influential witness would be given dispositive weight by the jury. See generally C. McCormick, Handbook of the Law of Evidence § 12 (2d ed. E. Cleary 1972). The rule has been criticized as "unduly restrictive, pregnant with close questions of application and the possibility of misapplication, and often unfairly obstructive to the presentation of a party's case," id., and its use as a blanket prohibition has been largely abandoned, see, e. g., F.R.Evid. 704. In Maine, the prohibition against testimony on an ultimate issue of fact was removed by our new rules of evidence. 4 Rule 704 provides: "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." M.R.Evid. 704. See generally R. Field & P. Murray, Maine...

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