Seay v. General Elevator Co.

• Decision Date: 21 May 1974
• Docket Number: No. 44395,44395
• Citation: 522 P.2d 1022
• Parties: Edythe SEAY, Appellant, v. GENERAL ELEVATOR COMPANY, an Oklahoma corporation, and Otis Elevator Company, a New Jersey Corporation, Appellees.
• Court: Oklahoma Supreme Court

Page 1022

522 P.2d 1022

Edythe SEAY, Appellant, v. GENERAL ELEVATOR COMPANY, an Oklahoma corporation, and Otis

Elevator Company, a New Jersey Corporation, Appellees.

No. 44395.

Supreme Court of Oklahoma.

May 21, 1974.

Robert E. Shelton, Savage, Gibson, Benefield & Shelton, Richard L. Bohanon, Bohanon & Barth, Oklahoma City, for appellant.

Monnet, Hayes, Bullis, Grubb & Thompson, Oklahoma City, for appellee, Gen. Elevator Co. Cook & O'Toole, Oklahoma City, for appellee, Otis Elevator Co.

LAVENDER, Justice:

This appeal involves an action for damages arising from personal injuries suffered when plaintiff fell as she existed from an automatic elevator in a federal court and office building in Oklahoma City where she was employed. She said in substance that her fall was caused by the outer (hallway) center-closing doors of the elevator closing in an unduly fast manner on her right heel--the last part of her body crossing the threshold. She was one of two persons on the elevator and the other person preceded her from the elevator. She had not attempted to hold the doors apart by pushing upon the rubber leading edge of either of the center-closing elevator doors (as distinguished from the elevator's outer hallway doors) which contained a safety device for opening the doors when the leading edge was pressed, although others had done this for her in the past. She had not actually known that it was the rubber edge on the inside door that was used to hold the doors open. No such device was on the elevator's outer hallway doors, and evidence indicated that outer elevator hallway doors manufactured in the United States do not have safety devices. However, the inner and outer doors operate in conjunction. The inner doors were also equipped with photo-electric cells that kept them apart when their light beam was broken. Each time the light beam was interrupted the stand-open time of the elevator hallway doors began anew. There was also a stop button on the elevator that, when pushed, would stop the doors from closing. The plaintiff never used the stop button.

Plaintiff was 63 years of age, had been a secretary for many years, had a pre-existing arthritic condition, had ridden the elevator or one of the other similar automatic elevators in the bank of four elevators many times since the opening of the building, the elevators having been installed in 1961. She had also suffered a previous encounter with the doors, or similar ones in the same bank of elevators with no injury. This encounter had been when she sought to step onto a crowded elevator.

The elevator was manufactured and installed by defendant Otis Elevator Company and was maintained and serviced by defendant General Elevator Company pursuant to a contract with the General Services Administration (G.S.A.), an agency of the U.S. Government which owned the building. Technicians from the regional office of G.S.A. had made general adjustments to the elevators during the period of general elevator company's contract.

Plaintiff alleged in effect a cause of action in manufacturers product liability against defendant Otis Elevator Company when she alleged that Otis failed to design, manufacture and install the elevator in a manner whereby it would be reasonably fit for the purposes for which it was to be used. Plaintiff's cause of action against defendant General Elevator Company was based on alleged negligence of that defendant in failing to maintain the elevator over which it had exclusive control and custody in a safe condition.

Defendant Otis Elevator denied fault in design, manufacture, and installation of the elevator and alleged negligence of plaintiff as the proximate or contributing cause of the accident and resulting injury in catching the heel of her shoe in the opening between the floor of the elevator and floor of the building and falling while attempting to free the heel and shoe. Defendant further alleged that plaintiff failed to use the means at hand to prevent the door from closing by placing her hand on the safety edge of the door.

Defendant General Elevator alleged negligence and contributory negligence of plaintiff in substance as had defendant Otis Elevator.

The issues are the correct application of he law of manufacturers' products liability as to defendant Otis Elevator Company, and, as to defendant General Elevator Company, whether the jury verdict was not sustained by the evidence and is contrary to law, and/or was rendered after prejudicially erroneous instructions, particularly in regard to the doctrine of res ipsa loquitur. For reasons hereinafter stated we find that the demurrer by defendant Otis Elevator Company was properly sustained, and that, as to defendant General Elevator the jury verdict for defendant was sustained by the evidence and is not contrary to law, and that the instructions were not prejudicially erroneous.

With regard to plaintiff's action in manufacturer's product liability against Otis Elevator Company, we adopted in Kirkland v. General Motors Corp., No. 45,016, promulgated April 23, 1974, and which appears in521 P.2d 353, the description of the cause of action in products liability as contained in the Restatement of Torts, Second Series, § 402A, the pertinent portion of which is:

'(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

'(2) The rule stated in Subsection (1) applied although (a) the seller has exercised all possible care in the preparation and sale of his products, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.' Restatement at 347, 348.

We also adopted the definition of 'unreasonably dangerous' contained in comment g to said § 402A, together with the parenthetical addition made by us, as follows:

'The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it (or who uses it) with the ordinary knowledge common to the community as to its characteristics.'

Under the above it was incumbent upon plaintiff to establish as against Otis Elevator Company that the absence of a separate and additional device on the outer hallway doors of the elevator was a design which was unreasonably dangerous to the plaintiff when she attempted to use the elevator in the way int was intended to be used. We are of the view plaintiff's evidence failed to establish a cause of action in products liability against Otis Elevator Company. Under these circumstances the trial court properly sustained the demurrer. Fletcher v. Meadow Gold Co. (1970), Okl., 472 P.2d 885, citing Howell v. Olson (1969), 452 P.2d 768 wherein a syllabus succinctly states the established rule that a demurrer to the evidence admits all facts fairly or reasonably inferable or deducible from the adverse party's evidence, and where there is any controverted question of material fact a demurrer to plaintiff's evidence should not be sustained.

Regarding the action against the General Elevator Company, as indicated, that company had a contract with General Services Administration to maintain and service the elevators. Plaintiff believed that the doors operated too fast, and she had known this since she first rode the elevators. She thought that they were erratic and that on the occasion when she was injured the doors closed much faster than they usually did. She believed that, there being only two persons on the elevator, she should have been able to have gotten off the elevator with safety. She also believed that the doors didn't stay open long enough and started closing sooner than they should have.

The timing on the elevator doors was set according to General Services Administration requirements, and it determined the 'stand-open' time for the doors were preset, although this was done in conference with General Elevator. On April 26th, some days prior to plaintiff's accident on Monday, May 13th, 1968, the stand-open time on the elevator had been extended one second because of traffic congestion in the basement. This was at the direction of G.S.A., and the work was done by a serviceman of General Elevator. The building manager determined the speed with which the doors closed.

The elevator was functioning as it was supposed to when checked by General Elevator's serviceman on the Friday preceding the Monday accident which occurred when plaintiff was returning from lunch. It was checked for malfunctions at about 1:45 P.M. thereafter by General Elevator's serviceman in the company of the assistant building manager for G.S.A. and the security guard supervisor. No malfunctions were found. Later on the same day the serviceman timed the doors with a stop watch. No adjustments of any kind were made to the elevator and it was put back in service. On May 24th the elevator was checked by a regional G.S.A. elevator inspector, the checks including the door stand-open time, which was 7.1 seconds from a button call from the hallway and 3.9 seconds from within the elevator. This variance was normal. There had been no change or adjustment of the elevator during the interval between inspections. The G.S.A. inspector did not recommend or require a change of these times. He found door closing pressure of 24 pounds which was well below maximum pressure allowed by a code used by G.S.A.

No malfunctions of the elevator were found during the inspections, but they were possible. Any door-closing time malfunctions that would have made the doors travel faster in closing would have been caused by a 'short' or a bad condenser. The doors would have continued their faster...