Mire v. Otis Elevator Co., Inc.

• Decision Date: 11 April 1978
• Docket Number: No. 8434,8434
• Citation: 357 So.2d 1326
• Parties: Richard J. MIRE et al. v. OTIS ELEVATOR CO., INC., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 1326

357 So.2d 1326

Richard J. MIRE et al. v. OTIS ELEVATOR CO., INC., et al.

No. 8434.

Court of Appeal of Louisiana,Fourth Circuit.

April 11, 1978.

John M. Robin, Metairie, and Darryl J. Tschirn, Covington, for plaintiffs-appellees.

Drury, Lozes & Curry, James H. Drury, New Orleans, for defendants-appellants.

Before SAMUEL, REDMANN and BOUTALL, JJ.

SAMUEL, Judge.

Plaintiff, Richard J. Mire, individually and as administrator of the estate of his minor child, Michelle M. Mire, filed suit against the defendants, Otis Elevator Company, Inc., its insurer, Commercial Union Insurance Company, D. H. Holmes Company, Ltd., its insurer, Aetna Life & Casualty Company, and Lakeside Shopping Center, endeavoring to recover damages sustained by Michelle on May 6, 1974 when her foot was caught in a descending escalator, resulting in subsequent surgical amputation of the distal two-thirds of the fifth toe on her right foot.

All defendants answered and denied negligence on their part. Otis alleged plaintiff's wife was negligent in failing to properly supervise the child and asserted the wife's contributory negligence against plaintiff's recovery. Lakeside Shopping Center, D. H. Holmes Company, and Aetna filed a similar answer. In addition, they filed a reconventional demand against plaintiff seeking indemnification or contribution from him on the theory of his wife's negligence and a third party petition against Otis seeking indemnity or contribution on the basis of the escalator maintenance contract between Otis and D. H. Holmes Company.

The case was tried before a jury, which rendered a verdict against Otis Elevator Co., Inc. for $50,000. Judgment was rendered against Otis Elevator and Commercial Union Insurance Company, in solido, on the verdict, and from that judgment they have taken this appeal. The jury held in favor of all other defendants and dismissed the suit as to them.

The evidence establishes that plaintiff's wife and their two children went to D. H. Holmes Company to purchase a present. Mrs. Mire and the children had the present gift wrapped and were descending an escalator to the first floor when Michelle's foot became wedged between the escalator's metal treads and its porcelain coated skirt or sidewall. While the evidence is contradictory, it appears the child's foot became so wedged approximately one-third of the way down the escalator and the escalator did not stop moving until the child's foot was approximately three steps from the bottom.

The child was wearing a tennis shoe which was destroyed in an effort to free her foot. However, the evidence indicates the shoe was relatively new and was not excessively worn. The child's foot had to be freed by prying it from the escalator with a large screwdriver and crowbar.

The primary conflict in the evidence centered around the width between the side of the step tread and the adjacent skirt. Roger L. Harris, the maintenance supervisor for Otis (who was qualified as an expert witness) testified that when he inspected the escalator after the accident the clearance on each side of the steps varied from one-eighth of an inch to three-sixteenths of an inch, the latter width being less than that allowed by the three-eights of an inch requirement of the American National Standard Safety Code for elevators and escalators. He expressed the opinion that because the child's mother was inattentive the child improperly placed a toe of her tennis shoe in the three-sixteenths inch crack, which caused the rubber shoe to be pulled into that crack between the escalator step and the skirt wall. He amplified on this opinion by pointing out the force of the shoe entering the crack could have forced the tread to the left, doubling the size of the crack since an equal space was allowable by the safety code on either side of the escalator tread. Under such circumstances, a space of three-eighths of an inch would have opened up to allow the shoe to enter.

On the contrary, the plaintiff, himself a civil engineer, testified the same day the accident occurred he went to the scene, rode the escalator, and observed that the space between the tread and the side skirt on the right side varied from a one-eighth inch opening at the top of the escalator to three-quarters of an inch, a quarter of the way down from the top of the escalator, from which point the crack tapered down to approximately one-eighth inch at the bottom near the escalator's base plate.

The jury's verdict indicates it believed the testimony of Mr. Mire, that the gap between the escalator tread and the side skirt was as wide as three-quarters of an inch and not merely...