Rosell v. Esco

• Decision Date: 16 February 1989
• Docket Number: No. 88-CA-0661,88-CA-0661
• Citation: 539 So.2d 937
• Parties: June ROSELL v. ESCO, D/B/A Jolly Elevator Corp., et al. 539 So.2d 937
• Court: Court of Appeal of Louisiana — District of US

Page 937

539 So.2d 937

June ROSELL v. ESCO, D/B/A Jolly Elevator Corp., et al.

No. 88-CA-0661.

539 So.2d 937

Court of Appeal of Louisiana Fourth Circuit.

Feb. 16, 1989.

Writ Granted April 21, 1989.

Ivan David Warner, III, Clyde A. Ramirez, Patricia D. Miskewicz, Ramirez, Warner and Miskewicz, New Orleans, for plaintiff/appellee, June Rosell.

John E. McAuliffe, Jr., Bienvenu, Foster, Ryan and O'Bannon, New Orleans, for defendant/appellant, Raftery Elevator Corp.

Before LOBRANO and ARMSTRONG, JJ., and HUFFT, J. Pro Tem.

PRESTON H. HUFFT, Judge Pro Tem.

June Rosell, plaintiff and appellee, apparently sustained injuries as a result of a collision of the right side of her face and forehead with the doors of an elevator maintained by Raftery Elevator Corporation, defendant and appellant. Plaintiff brought suit against the elevator's manufacturer, Esco, d/b/a Jolly Elevator, and service contractor, Raftery Elevator Corporation. The trial court dismissed Esco pursuant to a motion for summary judgment. The court conducted a trial by jury with respect to the claim against Raftery. The jury found in favor of the plaintiff, determined her damages to be $500,000.00, and found her 30% comparatively negligent and reduced her recovery amount to $350,000.00. Raftery appeals from the trial court's decision and has assigned numerous specifications of error. Ms. Rosell has disputed the finding of her comparative negligence in her answer to the appeal.

On January 12, 1984, June Rosell apparently injured her head and neck while exiting an elevator on the first floor of the offices of Colonial Bank, her employer at the time. The injuries apparently resulted from a collision of Ms. Rosell's face and forehead with the elevator doors. Witnesses for the plaintiff claimed to have experienced prior difficulties with the elevator doors closing too fast. The defense impeached much of that testimony by reference to contradictory statements made in the respective depositions taken from those witnesses. Many of these witnesses had also indicated that they had informally communicated these problems to bank supervisors whom they assumed were aware of the problem. However, the bank supervisors testified that they did not receive any complaints nor were they aware of any problem concerning the closing of the applicable elevator doors.

One bank employee testified that she routinely called the defendant about the elevator doors at the direction and with the knowledge of her supervisor, Mary Brown. Ms. Brown, one of the bank supervisors who testified, stated that she never received any complaint nor made any instruction to call Raftery to correct a problem with the elevator doors. The same employee claimed that she frequently and routinely called Raftery's female receptionist about the elevator doors. However, the person who routinely answers the phone at Raftery is a man who is responsible for keeping a log of all service calls and making all dispatch assignments. The gentleman never received any call, as reflected by his log and his recollection, concerning a problem with the closing of the elevator doors at Colonial Bank.

The defendant presented expert testimony that the applicable elevator doors would have closed too fast if the timer had been set for the doors to close quickly, a problem which could be easily corrected by a routine maintenance adjustment. The defendant presented testimony that the regular monthly maintenance inspections entail a physical observation of the doors closing and that the routine inspection just prior to the accident led the service man to conclude that the doors closed within an acceptable, reasonable time span of twelve seconds. No one who testified stated that a problem existed with the doors closing too fast in the days or hours immediately before or immediately after the accident. The testimony also established that the doors would close routinely, regularly, and mechanically according to the timing setting. Absent a second possible cause, to be addressed next, the doors would not vary in the amount of time taken to close. A second possible mechanical cause for the alleged problem would be attributable to an open shunt field in the motor that opens and closes the elevator doors, in which case the doors would continually open and close. The record reflects no such problem manifested by the elevator doors. The plaintiffs did not present any expert testimony as to whether the doors could suddenly close as an aberration.

The only people present at the accident were the plaintiff and Ms. Dawn Hirstius, another bank employee. The plaintiff testified that when the accident occurred she had followed Ms. Hirstius out of the elevator when it reached the ground floor, that they had not been engaged in conversation, that the elevator door had closed as she had one foot in and one out of the elevator, and that the force of the blow from the door had caused her to...