Weeden v. Armor Elevator Co., Inc.

• Decision Date: 21 November 1983
• Citation: 468 N.Y.S.2d 898,97 A.D.2d 197
• Parties: Virginia R. WEEDEN, Appellant, v. ARMOR ELEVATOR COMPANY, INC., Defendant Third-Party Plaintiff-Respondent; The County of Orange, Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 898

468 N.Y.S.2d 898

97 A.D.2d 197

Virginia R. WEEDEN, Appellant, v. ARMOR ELEVATOR COMPANY, INC., Defendant Third-Party Plaintiff-Respondent The County of Orange, Third-Party Defendant.

Supreme Court, Appellate Division Second Department.

Nov. 21, 1983.

Owen & Grogan, Goshen (Thomas N. O'Hara, Goshen, of counsel), for appellant.

Mead, Dore & Voute, White Plains (Emanuel Thebner, White Plains, of counsel), for defendant third-party plaintiff-respondent.

BOYERS, Justice.

In this negligence action, predicated upon injuries sustained while riding in an automatic elevator which allegedly rose and fell suddenly, plaintiff appeals from a judgment entered upon a jury verdict for the defendant. Herein, we consider the application of the doctrine of res ipsa loquitur as against the defendant elevator maintenance company.

Since 1973, Virginia Weeden (hereinafter plaintiff) had been employed by the County of Orange as a maintenance or building service worker at the Orange County Government Center in the Village of Goshen, a three-story building owned by the county. In the early morning of May 24, 1976, plaintiff and Charles Smith, a fellow maintenance employee, entered the elevator in question, designated as elevator number one, on the first floor of the government center. Mr. Smith activated the control button so that they might ascend to the third floor. According to plaintiff, the elevator car

"passed the third floor and went to the top * * * we hit something up there, the whole elevator shook, jolted through my whole body, my legs, and went down to the third floor and must have bounced back up again. The whole thing shook so badly that we thought it was coming apart. It threw me to the side and the back. The mid back hit the railing of the back of the elevator."

Similarly, Mr. Smith testified at trial that instead of stopping at the third floor, the elevator "went up, slammed, banged and dropped back down". When the elevator came to rest, approximately one to two feet off level, Mr. Smith picked plaintiff up, opened the door and helped her "climb out". (It is unclear from the testimony adduced at trial whether the elevator improperly leveled above or below the third floor thereby requiring that plaintiff and Mr. Smith climb up or down in order to exit.)

Plaintiff continued working that day but could only perform some of her duties. She did, however, contact a physician that afternoon to make an appointment as she had pains in the back of her neck and in her shoulder and left leg. A compensation report was completed by plaintiff's supervisors the following day since her exclusive remedy against the county, her employer, was limited to workers' compensation (see Murray v. City of New York, 43 N.Y.2d 400, 407, 401 N.Y.S.2d 773, 372 N.E.2d 560). Thereafter, in February, 1977, plaintiff instituted this action against Armor Elevator Company, Inc. (hereinafter Armor), the manufacturer and sole maintenance company under contract with the county to service elevator number one. Armor, in turn, commenced a third-party action against the county by which it sought indemnity or contribution in the event that it was held liable to plaintiff.

The matter came on for trial in late August and early September of 1981. There was substantial testimony from county employees delineating frequent prior problems associated with elevator number one. For example, the elevator cab would fail to level with the floor, the doors would not open at the appropriate time, and the cab would pass requested floors or stop in between. These ongoing problems were reported to Armor, according to maintenance supervisor Charles White and then building superintendent, Stanford DeGraw.

Armor's service contract with the county provided, inter alia, for periodic visits by Armor to furnish oil and grease and lubricate the elevator equipment, to adjust, repair and replace certain parts where conditions warranted, and to examine safety devices. The contract further required that Armor would respond to calls from the county for any conditions requiring adjustment or repair. Such routine visits were distinguishable from "call backs", which were made in response to specific customer complaints. Normal procedure upon the discovery of an elevator malfunction was for the county building maintenance staff to shut off the power and telephone Armor. The only other "maintenance" function performed by the county was the replacement of fuses, which were located in a separate room on the first floor near the elevator bank. There was conflicting testimony as to whether an out-of-order sign was placed on elevator number one after the incident on May 24, 1976, or whether the elevator remained operational that day. It is also unclear whether or not Armor was immediately notified of the incident.

Robert Ball, elevator mechanic, and Armor's service representative, had been tending the four Orange County Government Center elevators since 1974, two years prior to the incident. It was, he testified, his duty to service the elevators, which would include "general housekeeping as far as cleaning any oil leaks * * * checking the general operation of the elevator, [and] checking contacts". He did not recall any repairs being performed on elevator number one between January 1 and May 24, 1976 or any complaints being received concerning the leveling mechanism prior to the occurrence. Ball's supervisor, Justin Donahoe, an Armor field operations manager, also testified that other than routine visits, there was only one recorded call with respect to elevator number one for attention to an unrelated problem. According to Mr. Ball, the last general service inspection prior to the incident had been on about May 20, 1976, at which time there was no evidence of malfunction. He first learned of the May 24 incident from building superintendent DeGraw during the course of a routine inspection and service call on June 1, 1976. While elevator number one was operating properly at the time, Mr. Ball considered the complaint serious enough to notify his supervisor, who directed that he change the "upleveling section" as a precautionary measure, in the event that the upleveling valve was acting erratically. The witness had not previously changed this mechanism.

Mechanic Ball described the relevant mechanism of elevator number one. The up-leveling section and the down-leveling section comprise a hydraulic valve which controls the speed of the elevator and allows the cab to stop smoothly when the valve receives an electrical signal from a magnetic switch atop the elevator. It was the up-leveling section of the hydraulic valve--which is responsible for the upward motion of the elevator cab and slowing its ascent so it is prepared to stop--which Ball changed after the incident. The elevator cab sits on top of a metal jack in the elevator shaft. Upon the institution of an up direction signal, in the motor room, adjacent to the shaft, oil is pumped from a tank into the jack, the oil pressure forcing the piston up and the elevator cab to ascend. When a down signal is activated, the down valve opens allowing oil to seep back into the tank thereby causing the cab to descend by the weight of gravity operating against the pressure of the oil. The elevator cab travels at a uniform maximum speed of approximately 100 feet per minute. According to Ball, however, it was "physically impossible" for the cab to hit the top of the shaft. This was because the hydraulic jack was

"long enough to allow the cab to go to the top floor and approximately 16 to 18 inches above the top floor and then at the end of the jack, to keep it from shooting out of the casing that it's in, there is a stop ring at the bottom of the jack in the casing in the ground * * * If the cab overrides the floor, the stop ring will hit the top of the casing and stop the car instantaneously".

In the event the cab were to overrun the third floor, the stop ring would impede any further movement and the cab would remain stationary until a call button for a lower floor was activated.

The up-leveling head, which had been removed by Ball on June 1, 1976, was not produced at trial. Ball explained that after changing the valve head, he had given it to his supervisor, Donahoe. Donahoe testified to the procedure upon his receipt of a removed part. These items are sent to Armor's factory for repair or overhaul. He sent the up-leveling head removed from elevator number one to Armor's Queens plant with others from his catchment area. Because each valve part or head was not distinctly marked, the one from elevator number one could not be traced. The witness assumed that that particular part was rebuilt or repaired and recirculated or scrapped--he did not know.

At the close of trial, a specific request by plaintiff's counsel that the jury be instructed on the doctrine of res ipsa loquitur as against Armor was denied by Trial Term based (it would appear from the record) on the fact that the pleadings, as amplified by the bill of particulars, did not assert res ipsa loquitur. Trial Term held that the theory at trial had been that of negligence, and that, therefore, this was not a proper case for such a charge.

After deliberation, the jury returned a verdict in favor of defendant Armor, finding that it had not been negligent in the maintenance of elevator number one. It is from the judgment entered thereon dismissing the complaint that plaintiffs appeal. We reverse and grant a new trial, holding that Trial Term erred in refusing to furnish the jury with appropriate instructions on the doctrine of res ipsa loquitur.

Initially, we observe that neither plaintiff's failure to specifically plead res ipsa loquitur nor the allegation of specific acts of negligence, along with a general allegation thereof, by way of the complaint as amplified by the bill of particulars, constitutes a bar to the invocation of res ipsa loquitur where the facts warrant...