Rogers v. Dorchester Associates

• Decision Date: 08 June 1973
• Citation: 32 N.Y.2d 553,300 N.E.2d 403,347 N.Y.S.2d 22
• Parties: , 300 N.E.2d 403, 64 A.L.R.3d 993 Adele ROGERS, Respondent-Appellant, v. DORCHESTER ASSOCIATES, Defendant; Milstein Associates et al., Appellants, and Otis Elevator Company, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 22

347 N.Y.S.2d 22

32 N.Y.2d 553, 300 N.E.2d 403, 64

A.L.R.3d 993

Adele ROGERS, Respondent-Appellant, v. DORCHESTER ASSOCIATES, Defendant; Milstein Associates et

al., Appellants, and Otis Elevator Company, Respondent.

Court of Appeals of New York.

June 8, 1973.

William F. Larkin and John P. Connors, New York City, for appellants.

Leo Howard, New York City, for respondent-appellant.

William F. McNulty, Joseph Messina and Anthony J. McNulty, New York City, for respondent.

BREITEL, Judge.

In a personal injury negligence action against the owner and manager of an apartment building and an elevator maintenance company for injuries sustained when plaintiff tenant was struck by the automatic door of a self-service elevator, the injured plaintiff, the owner, and the manater appeal. The principal issue is whether evidence that the door had malfunctioned in the past, coupled with the elevator company's undertaking to perform all inspection and maintenance, was sufficient to permit the jury to infer negligence by the elevator company.

After a jury trial plaintiff received a verdict and judgment of $80,000 against the owner, Milstein Associates, the manager, Milford Management Corp., and the maintenance company, Otis Elevator Company. A cross claim by the owner and manager against the elevator company, tried by stipulation without a jury, was dismissed by the trial court. The Appellate Division, two Justices dissenting, modified the judgment by dismissing plaintiff's complaint against the elevator company. Hence, the appeals by plaintiff, the owner, and the manager against the elevator company as respondent.

The order of the Appellate Division should be modified by reinstating the judgment against the elevator company, and granting judgment in favor of the owner and manager on their cross claim against the elevator company. There was evidence that the door had malfunctioned during the six months preceding the accident from which the jury might infer that the elevator company negligently performed its undertaking to repair and maintain the elevator. Since the elevator company had agreed to perform all required maintenance, negligence by the owner and manager in the performance of their nondelegable duties to maintain the elevator arose solely through the acts or omissions of the elevator company. Hence, it was error to dismiss the cross claim by the owner and manager against the elevator company.

Plaintiff Adele Rogers, 71 years old, was injured in July, 1970 when she was struck by the automatic door of a self-service elevator in the Manhattan apartment building where she lived. The building was owned by defendant Milstein Associates, a partnership, and managed by defendant Milford Management Corp. Otis Elevator Company, under a written agreement with Milford as agent for the owner, undertood to service all elevators in the building. The agreement is detailed below.

Plaintiff testified that as she entered the elevator, the automatic door began to close. She stated that she put up her hand and touched the rubber safety edge, designed to retract the door upon contact, but the door continued closing and knocked her to the floor. She sustained two fractures of the pelvis.

Another tenant, Urey Robinson, testified that in the six months before the accident, the elevator door failed to retract 'many times' and at least more than twice. Immediately after the accident, Robinson arrived at the ground floor in the same elevator and he testified that 'the door kept going back and forth and you couldn't really get out.'

Plaintiff also testified that in the six months preceding her accident the door would begin closing normally, then about halfway it would speed up and close with a 'bang'. She stated that the elevator had been out of service and was repaired about six months before the accident.

A police officer, called after the accident, testified that he tried to enter the elevator as the door closed, the door pushed him and it did not retract. A building employee, however, testified that he tried the door after the accident and it worked properly.

By its written agreement with Milford, Otis undertook to 'regularly and systematically examine, adjust (and) lubricate' elevator machinery, to 'repair or replace' parts if required in Otis' judgment, and to 'use all reasonable care to maintain the elevator equipment in proper and safe operating condition.' The agreement provides that all equipment shall remain within the 'possession or control' of the owner and that '(u)nder no circumstances shall we (Otis) be liable for consequential damages.' The consideration for Otis' service of the nine elevators in the building was $1,310 per month, or $15,720 per year.

An Otis maintenance examiner, Roger Anarella, testified in pretrial examination that his procedure was to check all elevators at least twice or three times each week to see that the doors were functioning the leveling was proper, and the gears were oiled. These routine examinations were supplemented by a yearly supervisor's inspection of each piece of equipment. The last supervisor's inspection was made almost six months before the accident.

Anarella, the maintenance examiner, further testified at the examination that the rubber safety edge was designed to cause the elevator door to retract at 'the slightest pressure' and said that 'a finger' should cause the door to retract. Anarella stated that he checked the elevator after the accident and found nothing wrong with the door.

Harold M. Gottlieb, employed by both Milstein and Milford to manage the building, testified that none of the building employees were allowed to perform repairs on the elevators. In case of trouble, they were instructed to shut down a malfunctioning elevator and Otis was to be called. In short, all maintenance of the elevators was handled exclusively by Otis specialists.

The jury was charged that Otis was under a duty to exercise reasonable care in inspecting elevators for defects and in repairing defects to make the elevators reasonably safe for use. The jury was also charged that the doctrine of Res ipsa loquitur applied to the owner and manager, but not against Otis.

An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found (Smith v. Jay Apts., 33 A.D.2d 624, 304 N.Y.S.2d 737, mot. for lv. to app. den. 26 N.Y.2d 609, 307 N.Y.S.2d 1027, 255 N.E.2d 785; Koch v. Otis Elevator Co., 10 A.D.2d 464, 467, 200 N.Y.S.2d 700, 702; Hoggard v. Otis Elevator Co., 52 Misc.2d 704, 405, 276 N.Y.S.2d 681, 684, affd. 28 A.D.2d 1207, 285 N.Y.S.2d 262; see 26 Am.Jur., Elevators and Escalators, § 17; 19 N.Y.Jur., Elevators and Escalators, § 37, 1973 Supp., at p. 17: Ann., Automatic Elevator--Liability, 6 A.L.R.2d 391, § 3). Otis concedes that this is the applicable rule, but contends that there was no evidence of acts or omissions by Otis to sustain a finding that Otis negligently performed its duty of maintenance.

No direct evidence of any act of negligence by Otis was introduced. Nor, as noted, was the doctrine of Res ipsa loquitur applied against Otis. But, Res ipsa loquitur aside, circumstantial evidence of sufficient probative force may permit a jury to infer negligence (Markel v. Spencer, 5 A.D.2d 400, 403, 171 N.Y.S.2d 770, 774, affd. 5 N.Y.2d 958, 184 N.Y.S.2d 835, 157 N.E.2d 713; Wells v. Thaber Realty Co., 268 App.Div. 751, 48 N.Y.S.2d 489). Thus, too, in Otis Elevator Co. v. Robinson, 287 F.2d 62 (CA5) where plaintiff was injured when an elevator fell at an excessive speed and then came to a sudden stop, evidence of prior complaints to and maintenance checks by the elevator company was held sufficient circumstantial evidence of negligent repair, without reliance on the doctrine of Res ipsa loquitur (287 F.2d at p. 65). In finding the circumstantial evidence sufficient to permit an inference of negligence, the court reasoned:

'Otis was hired because it knew elevators. The jury may have reasoned that until Otis could come in and identify the cause (or all possible causes) and then show why this could not reasonably have been discovered, the failure of the expert to locate and correct the source of trouble showed neglect in the performance of the work in which it claimed pre-eminent competence. * * *

'There was thus a solid basis for jury inference from circumstances which have a compelling attraction in the ordinary experience of men. That was enough.' (287 F.2d, at pp. 65--66).

Although generally referring to the doctrine of Res ipsa loquitur, the courts have, independently of the classic doctrine requiring in its purest form exclusiveness of control, possession, and operation of harm-causing instrumentalities, ^I often found circumstantial evidence sufficient to permit the inference of negligent inspection and repair against an elevator maintenance company. In Beinhocker v. Barnes Development Corp., 296 N.Y. 925, 73 N.E.2d 41, mot. for rearg. den. 297 N.Y. 472, 74 N.E.2d 180, plaintiff fell and was injured when a safety 'interlock' device failed to function and the door opened even though the elevator was not at the floor. The elevator company had agreed to maintain the elevator and had complete charge over maintenance of the interlock device. These circumstances were held to support an inference of negligence by the elevator company (see, also, Kelly v. Watson Elevator Co., 309 N.Y. 49, 127 N.E.2d 802; Ames v. Watson Elevator Co., 303 N.Y. 732, 103 N.E.2d 345). In Pugh v. Weber, 29 A.D.2d 567, 286 N.Y.S.2d 339, plaintiff was injured when she tripped and fell as she was leaving the elevator. The elevator had stopped several inches below the floor level and the door closed rapidly as she sttempted to leave. There was evidence that the elevator had not properly...