De Los Santos v. Saddlehill, Inc.

• Citation: 511 A.2d 721,211 N.J.Super. 253
• Parties: Reynaldo DE LOS SANTOS, Administrator Ad Prosequendum and General Administrator of the Estate of Arlene De Los Santos, Reynaldo De Los Santos, Individually and Ramona De Los Santos, Individually, Plaintiffs-Appellants, v. SADDLEHILL, INC., a corporation organized under the laws of the State of New Jersey; William Koestner, Ind. and t/a Saddlehill, Inc.; Anthony Corp. and Anthony Iafelice, Ind. and Anthony Iafelice, t/a Anthony Corporation, John Capobianco and Elevator Maintenance, Inc.; and New Jersey Elevator Gate & Door, Inc., Defendants-Respondents.
• Decision Date: 25 June 1986
• Court: New Jersey Superior Court – Appellate Division

Page 253

211 N.J.Super. 253

511 A.2d 721

Reynaldo DE LOS SANTOS, Administrator Ad Prosequendum and General Administrator of the Estate of Arlene De Los Santos Reynaldo De Los Santos, Individually and Ramona De Los Santos, Individually, Plaintiffs-Appellants, v. SADDLEHILL, INC., a corporation organized under the laws of the State of New Jersey; William Koestner, Ind. and t/a Saddlehill, Inc.; Anthony Corp. and Anthony Iafelice, Ind. and Anthony Iafelice, t/a Anthony Corporation, John Capobianco and Elevator Maintenance, Inc.; and New Jersey Elevator Gate & Door, Inc., Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued March 5, 1986.

Decided June 25, 1986.

Harold J. Cassidy, Red Bank, for appellants (Cassidy, Despo, Foss & San Filippo, Red Bank, Harold J. Cassidy and Randolph H. Wolf, Red Bank, on brief).

Gerald Kaplan, Morristown, for respondents Saddlehill, Inc., William Koestner, Ind. and T/A Saddlehill, Inc.; Anthony Corp. and Anthony Iafelice, Ind. and Anthony Iafelice, T/A Anthony Corporation (Lieb, Berlin & Kaplan, Morristown, Gerald Kaplan, Morristown, of counsel and on brief).

Stephen A. Geffner, Hackensack, for respondents John Capobianco and Elevator Maintenance, Inc. (Gallo, Geffner, Fenster, Farrell & Turitz, Hackensack; Stephen A. Geffner, Hackensack, of counsel and on brief).

Brief on behalf of respondent New Jersey Elevator Gate & Door, Inc., was suppressed.

Before Judges FRITZ, BRODY and BAIME.

The opinion of the Court was delivered by

BAIME, J.A.D.

Plaintiffs instituted this action to recover damages for the death of their five-year old daughter who was crushed in the elevator of the apartment building in which they resided. The 46 count complaint included wrongful death and survival actions as well as individual claims for infliction of emotional distress. Named as defendants were Saddlehill, Inc., the owner of the building, and its president, William Koestner, Anthony Corp., the managing agent, and its president, Anthony Iafelice, Elevator Maintenance Inc., an independent contractor, and its president, John Copabianco, and New Jersey Elevator Gate & Door, Inc., a subcontractor.

In the complaint, defendants Saddlehill, Koestner, Anthony Corp. and Iafelice were charged with failing to properly maintain the elevator in a safe condition. Plaintiffs also alleged that Elevator Maintenance and Copabianco negligently replaced the elevator door and failed to install a safety device referred to as a "toe guard" which would have prevented the elevator from moving while the door was open. Plaintiffs further claimed that New Jersey Elevator, the party that actually installed the door, was equally negligent in failing to install the toe guard. Plaintiffs sought both compensatory and punitive damages.

All of the defendants filed answers and cross claims for contribution. Prior to trial, plaintiffs' claim for punitive damages was dismissed. The trial judge additionally dismissed their individual actions for negligent infliction of emotional distress. Plaintiffs settled their claims against Elevator Maintenance, Copabianco and New Jersey Elevator for $100,000 before the jury was selected.

Following a protracted trial, the jury rendered its verdict. In a special interrogatory, the jury determined that Saddlehill and Koestner were not guilty of "separate and independent active negligence." However, the jury apportioned fault in the following manner: 5% for Saddlehill and Koestner, 5% for Anthony Corp. and Iafalice and 90% for Elevator Maintenance, Copabianco and New Jersey Elevator. The jury awarded $15,000 in damages in the survival action. However, the jury found no pecuniary damages in the wrongful death action. Based upon the percentages of negligence determined by the jury, the trial judge molded the verdict and entered a judgment against Saddlehill and Koestner in the sum of $750 and against Anthony Corp. and Iafelice in the same amount. This appeal followed.

Despite the voluminous record, the essential facts are not in dispute. The genesis of this action was a tragic accident which occurred at approximately 8:30 p.m. on July 6, 1981. Plaintiffs' decedent was crushed by an elevator in her North Bergen apartment building. Apparently, she had attempted to enter the elevator in the basement of the complex. The accident was attributable to the absence of a "toe guard," a safety device designed to prevent the elevator from moving while its doors were open.

There were no witnesses to the incident, but the investigation of the police confirmed that the decedent became wedged between the outer door of the elevator and the cabin's inner gate, a space approximately eight inches wide. It would appear that someone on an upper floor summoned the elevator before the decedent could enter the inner door, and the outer gate closed behind her. She was then pulled up the elevator shaft until her head met the upper floor. In a matter of seconds, the decedent's head was crushed, and her badly battered body fell into the well of the shaft where it was discovered later that evening.

Elevator Maintenance had a service contract with Koestner which had been in force since 1970. One of the duties of Elevator Maintenance was to inspect the building's elevator on a periodic basis. On August 8, 1980 Koestner received a memorandum advising him that the elevator door and frame in the basement were "beyond repair." Several months later, Koestner directed Elevator Maintenance to replace the door and perform the necessary services. A contract was signed on November 5, 1980.

New Jersey Elevator, a subcontractor, installed a new outer door in early December, 1980. The old wooden door had been equipped with a toe guard. However, the subcontractor unaccountably failed to replace it. Although the superintendent of the building was aware of this fact, he attached no significance to the absence of a toe guard because he was uncertain as to its function. Similarly, Iafelice inspected the elevator following installation of the new door, but he too was unaware of the need for a toe guard. A repair supervisor employed by Elevator Maintenance also inspected the door and found nothing amiss.

Defendants' expert, a licensed engineer, testified that "spacer plates"--his phrase for toe guards--are "in common use" in the industry. He further stated that well accepted safety standards mandated installation of such a device. He concluded that the failure of Elevator Maintenance to install one on the basement floor "constitute[d] a violation" of those safety standards.

Much of the evidence presented at trial pertained to the question of damages. Consistent with our Supreme Court's decision in Green v. Bittner, 85 N.J. 1, 12-17, 424 A.2d 210 (1980), plaintiffs were accorded broad latitude in presenting evidence concerning the pecuniary value of the loss of decedent's companionship and advice. In addition, plaintiffs presented two experts, Dr. M. Geraldine Gage, a professor of family economics at the University of Minnesota, and David Budin, an actuarial consultant, who testified that there was a likelihood of increasing "economic transfers" from child to parents with the passage of time.

As noted previously, the jury apparently found all of the parties negligent but ascribed most of the fault to Elevator Maintenance and New Jersey Elevator. The jury awarded no damages in the wrongful death action. In the survival action, the jury awarded $15,000 in damages. The judge molded the verdict to reflect a reduction of the damages based upon the percentage of negligence ascribed to the settling tortfeasors, Elevator Maintenance and New Jersey Elevator. This appeal followed.

Plaintiffs advance a plethora of arguments in their effort to obtain a reversal and a new trial. Although phrased in a variety of ways, their complaints fall into six general categories. These include arguments that: (1) the judge's pretrial orders dismissing their claim for punitive damages and their individual actions for negligent infliction of emotional distress constituted reversible error, (2) the judge's evidentiary decisions were erroneous, (3) defense counsel's conduct deprived plaintiffs of their right to a fair trial, (4) the judge's instructions were misleading and failed to apprise the jury of the applicable principles of law, (5) the damages awarded by the jury should not have been reduced by the percentage of negligence ascribed to the settling tortfeasors and (6) the failure of the jury to award damages in the wrongful death action constituted a miscarriage of justice. Only the last two contentions require extended comment.

I

We first address plaintiffs' argument that Elevator Maintenance and New Jersey Elevator were not joint tortfeasors and that the trial judge incorrectly reduced the damages awarded by the jury in accordance with the percentage of negligence attributable to them. Although ambiguously phrased, the principal thrust of plaintiffs' claim is that defendants owed a nondelegable duty to maintain the elevator in a safe condition and, therefore, the negligence of the independent contractor and subcontractor must be imputed to them. They, thus, contend that the trial judge erroneously reduced the damages awarded by the jury by the percentage of negligence ascribed to Elevator Maintenance and New Jersey Elevator.

We start with the thesis that an owner of a building has a nondelegable duty to exercise reasonable care for the safety of tenants and persons using the premises at his invitation. Mayer v. Fairlawn Jewish Center, 38 N.J. 549, 555, 186 A.2d 274 (1962); Gill v. Krassner, 11 N.J.Super. 10, 15, 77 A.2d 462 (App.Div.1950); Levine v. Bochiaro, 137 N.J.L. 215, 219, 59 A.2d 224 (E. & A. 1948); Hussey v. Long Dock R.R. Co., 100 N.J.L. 380, 384, 126 A. 314 (E. & A.1924). See also Prosser & Keeton, Torts, § 63 at 445-446 (5 ed. 1984); 2 Harper & James, Law of Torts, § 26.11 at 1406-1408 (1956). A landlord...