Spott v. Otis Elevator Co.
| Decision Date | 18 June 1992 |
| Docket Number | No. 91-C-2522,91-C-2522 |
| Citation | 601 So.2d 1355 |
| Parties | Alex SPOTT v. OTIS ELEVATOR COMPANY, et al. |
| Court | Louisiana Supreme Court |
Rehearing Denied Sept. 3, 1992.
Frank Allen Bruno, Bruno & Bruno, New Orleans, for plaintiff-applicant.
Charles Edgar Cloutier, III, Richard Joseph Garvey, Jr., Christovich & Kearney, Thomas Edward Loehn, Boggs, Loehn & Rodrigue, New Orleans, for defendant-respondent.
This suit involves a claim for damages resulting from personal injuries sustained by plaintiff Alex Spott in an elevator owned by Pelican Homestead & Savings Association and manufactured and serviced by Otis Elevator Company. The court of appeal affirmed the district court's dismissal of Spott's suit, holding no liability on the part of the defendants was proven. 592 So.2d 13. We granted certiorari to determine the correctness of the lower courts' decisions. 1
On the morning of April 20, 1987, Pro-Temporary Service dispatched its employee Alex Spott, on an assignment to McGregor Printing Company. McGregor sent its own employee, Scott Colomb, with Spott to deliver a load of paper to Pelican Homestead in Jefferson Parish. The two men entered the building from a loading dock which leads to an elevator reserved strictly for freight after 9:00 a.m. They used this elevator to transport a pallet of computer paper from the first floor to the second. The paper weighed between 2000 and 2500 pounds, well within the elevator's 4500-pound capacity.
At trial, Colomb and Spott testified regarding an incident which occurred en route to the second floor. An Otis repairman assigned to Pelican, John Mandola, also testified. 2
Colomb, who had been in this elevator several times before and was familiar with operating it on independent service, 3 testified that he pushed the button for the second floor and the elevator started going up, but made a sudden, bouncing stop before it reached its destination. Specifically, Colomb testified:
[I]t sounded like and felt like it caught something in the shaft and then it went down maybe a couple of feet, stopped real hard, jerked us real hard and after that we stayed in it the better part of a half hour until it just went down to the first floor and it opened up and after that it went right up to the second floor, no trouble.
Colomb tried pressing buttons to start the car but eventually gave up and the car, apparently on its own, began working normally again. According to Colomb, none of the paper, which was shrink-wrapped, fell from the pallet, and neither he nor Spott was thrown against the walls or to the floor. The dropping problem did not recur. 4
Spott, who took the stand next, testified the elevator dropped four to five feet, a much more conservative estimate than the fifteen feet he posited in his deposition. Spott stated he had been leaning against the handrail when the elevator "jerked" and "it hit my back and then you know jerking movement it hurt my neck because it was like a snap, a forward snap you know." The day of the accident Spott went to a lawyer who referred him to a Dr. Jones whom Spott saw the next day. Spott complained of nausea and neck pain. Dr. Jones diagnosed the plaintiff as being bruised. Accordingly, the doctor gave him heat and pain treatments. Spott, bothered by occasional stiffness, continued seeing Dr. Jones for four months from April 21, 1987 until he was found to be asymptomatic and was discharged August 31, 1987. 5 Although the plaintiff did not call Dr. Jones to testify, his report and bill were admitted into evidence. 6
On cross-examination, defense counsel emphasized discrepancies between Spott's account of the accident at trial and that in his deposition. In his deposition, Spott apparently stated that he and Colomb had loaded two pallets, not one, onto the elevator and that the elevator fell a couple of stories. Furthermore, he stated in his deposition that he was thrown about the elevator and that the paper fell off the pallet.
Also testifying, and the only expert witness called by either side, was John Mandola, a maintenance man employed by Otis for over thirty years. Mandola, who inspected Pelican's elevators regularly under a maintenance contract with Otis, was summoned to the building by Pelican at the time of the incident. However, by the time Mandola arrived, Spott and Colomb had already left, and the elvator was functioning normally. Mandola had inspected the elevator five days before the incident, as part of routine maintenance, and found it to be in proper operating condition. A thorough, post-incident examination of the elevator revealed no problems. Mandola testified that in over thirty years of working with elevators, he had no experience with one dropping.
Indeed, if the elevator had dropped, according to Mandola, an electrical switch would have been tripped, shutting off power to the elevator. Once the switch has been tripped, the elevator will not run again unless mechanically reset. Because the switch did not require mechanical resetting, Mandola concluded the elevator had not fallen. Moreover, if the power had shut off because of the tripped switch and the elevator had continued to fall, then a safety brake would have clamped the rails. Had this safety stop been activated, a manual reset again would have been necessary.
Mandola's explanation of the incident, and the only hypothesis put forward by anyone at trial, was that a safety device, the door interlock circuit, had been interrupted. He described the safety device as follows. Attached to the elevator car doors, which are electrically powered, is a cam which, when it is between the two rollers on the hoistway doors (the non-electric doors at each floor), will pull open the hoistway doors as the car doors open. When the car is not at a floor, the hoistway doors are prevented from opening by a mechanical interlock. The interlock is a small, dog-legged piece of metal which conducts an electrical current. The circuit must be completed for a car to run. This insures that the hoistway doors will not open onto the elevator shaft when the car is not in place. If the car is moving and the electrical current is broken, the power to the car will be shut off and the car will come to a sliding stop. Such a break in the current might occur if, for instance, debris on the car sill fell into the shaft, and broke the circuit as the car began to move. The same sort of stop would occur, according to Mandola, if someone pushed the emergency stop button in the elevator. Once a car has been stopped by the interruption of the door interlock circuit, the car will only begin running again by pressing the "door close" button.
Mandola theorized that a piece of the wooden pallet used by Spott and Colomb broke off and fell into the shaft, causing the interlock's electrical current to be temporarily interrupted. The pit of the elevator shaft apparently always contains trash and pieces of wood from pallets. Finally, Mandola testified that if there had been some mechanical problem with the elevator it would have been discoverable after the accident.
At the time of the incident, there was in effect an "Extended Coverage Maintenance" contract between Otis and Pelican which provided, with respect to control, that Otis does:
not assume possession or control of any part of the equipment but such remains yours [Pelican's] exclusively as the owner (or lessee) thereof. We shall not be liable for any loss, damage or delay due to any cause beyond our reasonable control including, but not limited to, acts of government, strikes, lockouts, fire, explosion, theft, floods, riot, civil commotion, war, malicious mischief or act of God. Under no circumstances shall we be liable for consequential damages.
Although the accident occurred in Jefferson Parish, Spott, on November 11, 1987, filed suit in Civil District Court for the Parish of Orleans, naming both Otis and Pelican as defendants. The petition mentions that Spott is domiciled in Orleans Parish, but, on the location of the defendants' registered agents or principal places of business, it is silent. 7 Spott served Otis within the one year prescriptive period but withheld service on Pelican. Otis answered the suit without objecting to venue. Pelican, on the other hand, was not served until May 1988, more than one year after the incident. Pelican then raised the declinatory exception contending venue was improper as to both Otis and itself. On November 14, 1988, the suit was transferred by joint consent judgment to the 24th Judicial District Court for the Parish of Jefferson where it was tried. In the consent judgment, the plaintiff concedes venue was improper as to Pelican in Orleans.
Pelican also raised the peremptory exception, averring the action against it had prescribed because suit was brought in an improper venue and Pelican was not served within a year of the incident. The district court overruled the exception but nonetheless rendered judgment in favor of both defendants. The court of appeal affirmed the district court's ruling on the peremptory exception. We disagree, in part, with those rulings.
Even assuming Orleans Parish is a parish of improper venue as to Otis, Spott served Otis within a year of the incident. Therefore, prescription was interrupted as to Otis. La.Civ.Code art. 3462 8. Because Otis was ultimately found not liable, which result we affirm, the plaintiff cannot rely on La.Civ.Code art. 3503 nor on La.Civ.Code art. 2324(C). 9 These articles provide that interruption of prescription as to one solidary obligor interrupts prescription as to all other solidary obligors. Randall v. Feducia, 507 So.2d 1237, 1239 (La.1987). 10
Because he cannot rely on articles 3503 and 2324(C), the plaintiff contends La.Code Civ.Proc. art. 73(B) is applicable. It provides:
A. An action against joint or solidary obligors may be brought in a parish of proper venue,...
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