Otis Elevator of Gadsden, Inc. v. Scott

• Decision Date: 23 August 1991
• Citation: 586 So.2d 200
• Parties: OTIS ELEVATOR OF GADSDEN, INC. v. Phyllis Dean SCOTT. 1900183.
• Court: Alabama Supreme Court

Page 200

586 So.2d 200

OTIS ELEVATOR OF GADSDEN, INC. v. Phyllis Dean SCOTT.

1900183.

Supreme Court of Alabama.

Aug. 23, 1991.

George M. Van Tassel, Jr. and Robert H. Sprain, Jr. of Sadler, Sullivan, Herring & Sharp, P.C., Birmingham, for appellant.

L. Andrew Hollis, Jr. and Jeffrey C. Kirby of Pittman, Hooks, Marsh, Dutton, Hollis, P.C., Birmingham, for appellee.

KENNEDY, Justice.

Phyllis Dean Scott filed a negligence action against Otis Elevator of Gadsden, Inc., McCalley and Associates, the Peelle Company, and other defendants who are not involved in this appeal. Ms. Scott alleged that she was injured during the course of her employment at Baptist Memorial Hospital of Gadsden when she became pinned between a door and a hospital dumbwaiter cart that had suddenly emerged from an automatic unloading dumbwaiter system. The Peelle Company manufactured and sold the automatic unloading dumbwaiter system; McCalley designed and constructed the Baptist Hospital building; and Otis installed the automatic unloading dumbwaiter system.

Ms. Scott entered into a pro tanto settlement with McCalley, and the Peelle Company, but not with Otis. McCalley and the Peelle Company were dismissed. At trial, Otis moved for a directed verdict at the close of the plaintiff's evidence and at the close of all the evidence. The motions were denied. The trial judge submitted the following interrogatories to the jury for use during its deliberations:

"Was [Otis] guilty of negligent installation of the dumbwaiter system?

"Was [Otis] guilty of negligent maintenance of the dumbwaiter system?

"Was [Otis] guilty of negligent inspection of the dumbwaiter system?"

The jury answered the first question in the negative and the second and third questions in the affirmative. Based on its answers, the jury found for Ms. Scott and awarded her $100,000. The trial court entered a judgment for Ms. Scott in that amount. Otis filed a motion for judgment notwithstanding the verdict, which the trial court denied. Otis argues on appeal that the trial court erred in entering a judgment on the portion of the jury verdict in which Otis was found to have negligently maintained and inspected the automatic "cartveyor" system. Ms. Scott does not appeal.

The Baptist Memorial Hospital was equipped with two automatic cartveyor systems serving three levels. One system conveyed clean supplies from the central supply area of the hospital, and the other conveyed dirty supplies to the central supply area. Each cartroom for each level could hold two carts. The doors to the cartrooms opened in to the cartrooms. There was no mechanism to indicate to one sending a cart to a different level of the hospital how many carts occupied the receiving cartroom on that level. It is undisputed by the parties that, for this reason, the cartveyor system created a hazard.

Ms. Scott used the cartveyor system during the course of her employment at the hospital. On the day of her injury, Ms. Scott ordered that two carts be sent to her level, one for the clean cartroom and one for the dirty cartroom. One cart already occupied the clean cartroom. Inadvertently, both carts were sent to the clean cartroom. At that time, Ms. Scott was standing in the doorway to the clean cartroom. The third cart entered the room on the cartveyor system, pushing the other two carts toward the door by which Ms. Scott was standing. Ms. Scott became pinned between the door, which opened in to the cartroom, and the carts. As a result, Ms. Scott sustained an injury to her arm.

On appeal, Otis argues that, as the inspector and maintainer of the cartveyor system, it owed no duty to Ms. Scott to correct design defects in the cartveyor system. It argues that the scope of its duty to third persons who might use the cartveyor system was defined by its contract with the hospital, and that the contract stated only that Otis would keep the cartveyor system in working order, not that it would correct design defects. In any event, Otis argues, it discharged any duty it had to third persons who might use the cartveyor system by informing the hospital of the potential hazard.

Ms. Scott contends that installation of an electric eye beam in the cartveyor system would have prevented a cart from being sent to a particular level if the cartroom for that level already had two carts in it. She does not argue that Otis had a duty to actually install an electric eye beam in the cartveyor system, but that it owed a duty to third persons to specifically recommend to the hospital that, as owner of the cartveyor system, it should install an electric eye beam in the cartrooms to prevent too many carts from being sent to a particular room.

After Otis installed the cartveyor systems, it provided three months of follow-up service. Thereafter, Otis entered into a maintenance and inspection contract with the hospital. ¹ The contract states in pertinent part:

"We will regularly and systematically examine, adjust, lubricate as required, and if conditions warrant, repair or replace [certain parts].

"We also agree:

"To examine periodically all safety devices and governors and conduct our customary annual no load test, and each fifth year perform a full load, full speed test of safety mechanism, overhead speed governors, car and counterweight buffers.

"We shall not be required to make other safety tests nor to install new attachments on the elevators whether or not recommended or directed by insurance companies or by governmental authorities, nor to make any replacements with parts of a different design.

"The material handling equipment provided as a part of this installation was designed and manufactured by others. We therefore agree to maintain that portion of the installation in accordance with the terms and conditions of this contract as long as replacement parts are available from the manufacturer.

"It shall be your responsibility to guard and protect the openings during and after loading and unloading operations and to restrict access to the area of the loading, unloading and transfer operations to trained personnel under your supervision. Adequate warning signs shall be posted and maintained by you for the protection of employees and public."

It is not disputed that Otis informed the hospital that the cartveyor system, as it was installed, created a potential hazard that could result in accidents such as the one that injured Ms. Scott. Jimmy Hamilton, the adjuster for Otis, testified that, at the time the hospital was being constructed, he recognized the danger inherent in the cartveyor system as it was designed. He stated that he suggested to John Scott, the hospital's construction coordinator, that the doors to the cartroom be redesigned to open outward and that a panic bar be installed on the door to the elevator room so that, if too many carts were sent to the cartroom, the nearest cart would contact the panic bar and open the cartroom door outward. Hamilton also testified that, at the time the hospital was being built, he recommended that an electric eye beam be installed in the cartveyor system. Willis Elrod, an Otis employee, testified that he was present during the conversation between Hamilton and Scott, and that he remembered Hamilton recommending that an electric eye beam be installed in the cartveyor system. However, later at trial, Hamilton was recalled as a witness and, at that time, stated that he did not recall making such a suggestion to Scott.

After the cartveyor system was installed and the hospital began operating, the cartrooms often became "jammed" with too many carts. On many occasions between 1979 and 1981, Willis Elrod was called to correct the problem. He said that he discussed the problem with Danny Holderfield, the hospital's chief engineer, and that, at that time, he suggested that the cartroom doors be redesigned so that they would not swing in to the cartroom. At some point thereafter and before Ms. Scott's accident, Jimmy Hamilton discussed the "jamming" problem with Danny Holderfield. Hamilton told Holderfield that, if the hospital did not implement any of Otis's remedial suggestions, Otis would require the hospital to pay for future visits to "unjam" the cartrooms. The hospital did not implement any of Otis's remedial suggestions.

This action was pending on June 11, 1987; therefore, the applicable standard of review is the "scintilla evidence rule." See Ala.Code 1975, § 12-21-12; Grider v. Grider, 555 So.2d 104 (Ala.1989).

A motion for judgment notwithstanding the verdict tests the sufficiency of the evidence in the same manner as a motion for a directed verdict at the close of all the evidence. Rule 50, A.R.Civ.P., Committee Comments. King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518...