Toubiana v. Priestly

• Decision Date: 06 April 1988
• Citation: 402 Mass. 84,520 N.E.2d 1307
• Parties: Lyliane TOUBIANA 1 v. John W. PRIESTLY, Jr. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1307

520 N.E.2d 1307

402 Mass. 84

Lyliane TOUBIANA ¹ v. John W. PRIESTLY, Jr. ²

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Nov. 6, 1987.

Decided April 6, 1988.

Robert J. Doyle, Boston, for plaintiff.

Harvey Weiner (Ripley E. Hastings, Boston, with him), for defendant.

Before HENNESSEY, C.J., and LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The plaintiff's deceased, Max Toubiana, died as a result of a head injury he sustained while transporting lumber in a freight elevator in a building owned by a realty trust. The defendant was the sole trustee. In this action for wrongful death, the plaintiff alleges that the death resulted from the defendant's negligent maintenance of the elevator. The case was tried before a jury. The judge denied the defendant's motion for a directed verdict filed at the conclusion of all the evidence. The jury found that the negligence of Toubiana and the negligence of the defendant each contributed fifty per cent to the resulting death, and that the undiscounted damages were $100,000. The defendant then moved for judgment notwithstanding the verdict, and that motion was allowed. The plaintiff appealed, and we allowed the plaintiff's application for direct appellate review. We now affirm the judgment for the defendant.

"The standard to be used on a motion for judgment notwithstanding the verdict is the same as that on a motion for a directed verdict." Foley v. Polaroid Corp., 400 Mass. 82, 100, 508 N.E.2d 72 (1987), quoting D'Annolfo v. Stoneham Hous. Auth., 375 Mass. 650, 657, 378 N.E.2d 971 (1978). The test is whether "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff." Raunela v. Hertz Corp., 361 Mass. 341, 343, 280 N.E.2d 179 (1972). We apply that test to the following evidence, which, although controverted in many material respects, is the evidence most favorable to the plaintiff.

At the time of Toubiana's injury, he and Todd Jesdale, employees of Spring, Inc., were delivering a load of lumber to a ninth-floor tenant at the building owned by the trust. To accomplish this, they used the freight elevator which was substantially covered by a grate-type ceiling consisting of closely spaced, parallel metal bars. There were two sections of the ceiling in which bars had been missing for several months. One of these sections was at the front of the elevator and the other was in the middle. The largest gap, which was in the middle, was a "good foot" wide, and it extended across the elevator. Photographs, including one marked as exhibit 3, showing the elevator ceiling after the incident causing Toubiana's death, were in evidence. Exhibit 3 shows a long board extending through a gap across the middle of the ceiling. The gap, as shown, could be approximately one foot wide, and several metal bars adjacent to the gap appear to be bent and broken. Others appear to be bent. An employee of the defendant testified that the elevator ceiling as shown in exhibit 3 "looks like" the ceiling before the accident.

The elevator ceiling was ten feet above the floor. Toubiana and Jesdale placed a fourteen to sixteen foot long board in the elevator. They accomplished this by putting the board up through the gap in the middle of the ceiling. They did not push aside any of the metal bars. The board was placed at an angle so that the part that protruded beyond the ceiling was directed toward a wall of the elevator shaft. In order to prevent the upper end of the board from contacting the shaft wall, Toubiana held the board away from the wall. However, as the elevator ascended, the descending elevator counterweight and the board collided. The elevator, which was automatic, was equipped with an emergency stop switch. Jesdale was on the elevator with Toubiana, but he was not stationed at the switch and, in the excitement of the moment, he did not think to employ it. Had he done so immediately when the board and the counterweight collided, Toubiana would not have been injured. Jesdale and Toubiana, neither of whom was a licensed elevator operator, were the only persons on the elevator. The collision caused the board to bend, and then to break, with the result that Toubiana was killed by a piece of the board or a fractured piece of the elevator apparatus.

The defendant is an architect, and, as such, had some familiarity with elevators before Toubiana's accident. The defendant's office was in the building where the accident occurred and, several years earlier, the defendant had used the same elevator to move oversized timbers down from upper floors. On that occasion, he opened the elevator ceiling by removing nuts and bolts, and then extended the timbers through the opening. The defendant knew where the counterweights on this elevator were located, and he knew that oversized timbers protruding through the center of the elevator ceiling presented a hazard and had to be carefully positioned straight up and down (at a ninety degree angle to the floor) in order to prevent them from hitting the counterweight. The defendant had used freight elevators "to take things up through the ceiling" on other jobs, and he had done it carefully because he knew of the hazards.

Herbert Potter and Joseph Morrissey, called by the plaintiff, testified as expert witnesses. Potter testified that a solid elevator ceiling, which the parties stipulated would have been "feasible," is safer than grates, that an open ceiling is unsafe if improperly used, and that, as an elevator inspector, he would not have passed the elevator involved here it its ceiling had been as shown in the postaccident photographic exhibits. ³ Potter also testified that, although not legally required, at the time of the accident a "slack rope device" was available that would have prevented the accident. The elevator was not equipped with such a device.

The other expert witness, Morrissey, testified in substance as follows. Asked whether, "in a freight elevator context," he had an opinion "as to the standard of practice in the industry regarding a requirement for a roof on it," he testified over objection that it was his opinion that there "[s]hould be a solid roof, bar type, as seen in the picture on that type elevator, with an inch and a half gap maximum." Such a roof, he said, would prevent articles from falling into the elevator from above, and would "prevent people from extending articles beyond the perimeter of the elevator cab." Morrissey testified that his opinion was based on "the 524 CMR, the Massachusetts regulations," and that the ceiling as shown in the pictures "did not meet the Mass.Code, the regulations regarding the gaps." Morrissey further opined that it was foreseeable that Toubiana would use the elevator the way he did, that for safe operation, "the roof must be secured," that, in this instance, there should have been a licensed elevator operator, and that, had there been a licensed operator, the licensed operator would have hit the emergency stop switch and prevented the accident.

"Negligence, without qualification and in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances. It is a want of diligence commensurate with the requirement of the duty at the moment imposed by the law." Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505 (1919). Ordinarily, where a duty of care is established by law, the standard by which a party's performance is measured is the conduct expected of an ordinarily prudent person in similar circumstances. The standard is not established by the most prudent person conceivable, nor by the least prudent, but by the person who is thought to be ordinarily prudent. See Gilhooley v. Star Market Co., 400 Mass. 205, 207, 508 N.E.2d 609 (1987); Cimino v. Milford Keg, Inc., 385 Mass. 323, 330, 431 N.E.2d 920 (1982); Boyer v. New England Citrus Bowl, Inc., 347 Mass. 107, 109, 196 N.E.2d 642 (1964). The same standard is frequently expressed in terms of "reasonable care," see, e.g., Young v. Atlantic Richfield Co., 400 Mass. 837, 843, 512 N.E.2d 272 (1987), cert. denied, 484 U.S. 1066, 108 S.Ct. 1029, 98 L.Ed.2d 993 (1988); Mounsey v. Ellard, 363 Mass. 693, 708, 297 N.E.2d 43 (1973); St. Rock v. Gagnon, 342 Mass. 722, 723, 175...