White v. Milner Hotels, Inc.

• Decision Date: 31 January 1974
• Citation: 518 P.2d 631,267 Or. 628
• Parties: Berry WHITE, Appellant, v. MILNER HOTELS, INC., a Kentucky corporation, doing business as the Miller Hotel, Respondent.
• Court: Oregon Supreme Court

Page 631

518 P.2d 631

267 Or. 628

Berry WHITE, Appellant, v. MILNER HOTELS, INC., a Kentucky corporation, doing business

as the Miller Hotel, Respondent.

Supreme Court of Oregon, In Banc.

Argued the Submitted Sept. 12, 1973.

Decided Jan. 31, 1974.

Richard Haeder, Portland, argued the cause and filed the briefs for appellant.

L. M. Schouboe, Portland, argued the cause for respondent. With him on the brief were Schouboe, Cavanaugh & Dawson, Portland.

DENECKE, Justice.

The jury returned a verdict for the defendant in plaintiff's personal injury action and plaintiff appeals.

Plaintiff was a guest at defendant's hotel. She took the automatic elevator to go to her room. At plaintiff's floor the elevator stopped about four inches above the floor level. She stepped out, fell and was injured.

The defendant knew the elevator frequently stopped above the floor level. When it did the defendant called a serviceman to adjust the elevator so it would stop more nearly level with the floor.

The plaintiff charged the defendant was negligent: '(1) In failing to maintain, repair and inspect the elevator in order that the elevator would stop and remain level at floor stops, including the fourth floor'; and '(2) In attempting to repair the leveling problem, but in failing to eliminate the problem.' There were no other allegations charging negligence in maintaining or repairing the elevator. On defendant's motion the trial court struck both of the quoted allegations on the ground that there was no evidence to support either.

The trial court's decision was grounded upon the testimony of the elevator repairman called by plaintiff. He testified that because the elevator was of old design it would become maladjusted and stop as much as six inches from level with the floor; that he serviced the elevator twice a month and adjusted it so that it would stop no more than an inch off level.

When the landlord has noticed that the elevator is operating so as to endanger passengers, it has a duty to repair and maintain the elevator so that it operates safely. Pritchard v. Terrill, 189 Or. 662, 665--666, 22 P.2d 652, 25 A.L.R.2d 358 (1950). This duty is nondelegable; that is, the landlord cannot fulfill its responsibility to put the elevator in safe operating condition merely by engaging a competent elevator repairman to make the necessary repairs or adjustments. When the landlord knows that the elevator continues to become maladjusted and, therefore, unsafe, despite the work of the repairman, the landlord is liable for any injuries that may be caused by the unsafe condition.

Bradley v. Burdick Hotel Co., 306 Mich. 600, 11 N.W.2d 247 (1943), illustrates the principle just stated. In the Bradley case a hotel elevator fell injuring the plaintiff passenger. The evidence was that the elevator was not functioning properly. The hotel operator called the manufacturer with whom the hotel operator had a maintenance contract. The manufacturer's repairman made some adjustments and told the elevator operator to resume operating the elevator. Soon thereafter the elevator fell. The court stated:

'While it is a fundamental rule needing no citations that the one in lawful control of premises is not an insurer of the safety of an invitee, yet it is also fundamental that if the proprietor knows or reasonably should know of a dangerous condition on his premises, he may become liable for injury resulting therefrom, and he may not delegate his responsibility to another and thus escape his liability. * * *.' 306 Mich. at 604, 11 N.W.2d at 258.

Accord, Little Rock Land Company v. Raper, 245 Ark. 641, 433 S.W.2d 836, 842 (1968); Ramirez v. Redevelopment Ag. of City & Co. of San Francisco, 4 Cal.App.3d 397, 84 Cal.Rptr. 356, 357 (1970).

The two stricken allegations may be repetitious of each other. However, the plaintiff is entitled to have some allegation go to the jury charging that the defendant was negligent in failing to maintain or to make adequate repairs to the elevator. ¹ The trial court erred in striking both allegations.

Two other rulings of the trial court were assigned as error and may the in controversy in the event of a new trial.

The trial court instructed the jury that the defendant owed the plaintiff the duty of reasonable care. The trial court refused to give the plaintiff's requested instruction that the defendant owed plaintiff the highest degree of care in the operation of its elevator.

In Kelly v. Lewis Inv. Co., 66 Or. 1, 7--8, 133 P. 826, 828, Ann.Cas.1915B, 568 (1913), we held:

'* * * (A) landlord who for a consideration stipulates to maintain and operate for the accommodation of his tenants and their visitors a passenger elevator into which the public are impliedly invited to enter and be carried to desired floors is subject to the highest degree of skill and foresight consistent with the efficient use and operation of the means of conveyance, the same as is imposed by law upon public carriers of passengers: * * *.'

We made the identical holding in Putnam v. Pacific Monthly Co., 68 Or. 36, 56, 130 P. 986, 136 P. 835, L.R.A.1915F 782, 45 L.R.A.,N.S., 338, Ann.Cas.15C, 256 (1913), and repeated the above quotation from Kelly v. Lewis Inv. Co., supra, 66 Or. 1, 133 P. 826.

We have come to the conclusion that instructing the jury that an elevator operator owes the duty of using 'the highest degree of care' is confusing to the jury ahd unnecessarily complicates the law.

For years the scholars writing about this subject have criticized courts for establishing different degrees of care. For example, 2 Harper and James, Law of Torts, 945, § 16.13 (1956), states:

'We have seen how the standard of reasonable care is one which may require an infinite variety of precautions, or acts of care, depending upon the circumstances, and how it is primarily for the jury to say just what precautions were appropriate to the danger apparent in the case at hand. According to prevailing modern doctrine this proportioning of care to danger does not mean that different degrees of care (or of negligence) are being applied, because the legal standard remains constant--namely, what a reasonably prudent person would do under all the circumstances. And this standard is the one broadly applied throughout the field of negligence.'

Accord, Frederick Green, High Care and Gross Negligence, 23 Ill.L.Rev. 4 (1928); Prosser, Torts (4th ed.) 180, § 34.

Prosser states that it is incorrect to impose different Degrees of care on different persons. Persons are required to use different Amounts of care, depending upon the circumstances:

'The amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it. Those who deal with instrumentalities that are known to be dangerous, such as high tension electricity, gas, explosives, or elevators, must exercise a great amount of care because the risk is great. * * *.

'Although the language used by the courts sometimes seems to indicate that a special standard is being applied, it would appear that none of these cases should logically call for any departure from the usual formula. What is required is merely the conduct of the reasonable man of ordinary prudence under the circumstances, and the greater danger, or the greater responsibility, is merely one of the circumstances, demanding only an increased amount of care.' Prosser, supra, at 180--181.

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