Myron Myron v. Millar Elevator Industries, Inc.; 60 East 42nd St. Assoc.; Lincoln Building Assoc.
Type of Injury
FALL – TWO STORIES
summer replacement freight elevator operator
New York, NY
Defense verdict (6/0). GAL Manufacturing was dismissed at the end of Pltf.’s case. The case proceeded against Millar and Helmsley-Spear, the building owner.
VIII/31-6 ELEVATOR ACCIDENT — MALFUNCTIONING LOCKING DEVICE — PLAINTIFF STEPPED INTO EMPTY SHAFT — DEFENSE VERDICT SET ASIDE 9 MONTHS AFTER VERDICT
Myron Myron v. Millar Elevator Industries, Inc.; 60 East 42nd St. Assoc.; Lincoln Building Assoc.; and GAL Manufacturing Corp./Millar Elevator Industries, Inc. v. Helmsley-Spear, Inc. and GAL Manufacturing Corp. 3156/86 14-day trial Verdict 4/11/90 Judge Martin B. Stecher, New York Supreme
VERDICT: Defense verdict (6/0). GAL Manufacturing was dismissed at the end of Pltf.’s case. The case proceeded against Millar and Helmsley-Spear, the building owner. After the defense verdict for both of these Defts., the Third-party claim by Millar against Pltf.’s employer was dismissed. The verdict was set aside in an 8-page decision by Judge Stecher dated January 1991. See below. Jury: 2 male, 4 female.
Pltf. Atty: Gerald J. Mondora of Michael N. David, Manhattan
Deft. Atty: Kevin W. O’Reilly of Furey, Furey, Lapping, Keller, O’Reilly & Watson, Hempstead, for Millar
Seymour Dicker of Smith, Mazure, Director & Wilkins, Manhattan, for 60 East 42nd St. Assoc.
Charles Hansmann of Weiner, Aliano & Catlett, Garden City, for GAL
C. William Yanuck, Manhattan, for Helmsley-Spear
Facts: The accident occurred on 7/5/85 between 7-8 AM at the Lincoln Building at 60 East 42nd St. in Manhattan. Pltf., age 23 at the time, was a summer replacement freight elevator operator in the building. He claimed that when he reported to work on the morning of the accident, he unlocked the freight elevator door and stepped inside. The elevator was not at his floor, and Pltf. fell two stories down the elevator shaft. Pltf. contended that the locking device on the elevator malfunctioned, allowing him to open the shaftway doors even though the elevator was not there. He claimed that Millar Elevator, which had a maintenance contract for the building, negligently maintained the elevator. Millar’s contract required that one of its employee be present in the building during all business hours.
Defts. contended that the accident could have occurred even if the locking device was working correctly, if the prior elevator operator had not fully closed the freight door. Defts. also contended, through the testimony of a Millar employee, that the arm on the safety lock did not function because of dirt or dust on the spring mechanism. Defts. also produced evidence from the hospital record that Pltf. was intoxicated at the time of the accident. Injuries: open comminuted fracture of the left femur requiring open reduction and internal fixation with an intermedullary rod; multiple scars. He used a cane at trial. Pltf. also claimed that he suffered two herniated discs. He was hospitalized for 3 months and had not returned to work by the time of trial. Defts. contended that Pltf. had bulging discs, not herniated discs, and that he had a congenital deformity of the lumbosacral spine. They also contended that the bulging discs were not pressing on any nerves and did not cause much pain. Pltf.’s treating orthopedic surgeon testified that the damage to Pltf.’s leg was permanent. On cross-examination, however, he testified that Pltf. made a good recovery from the fracture and that he could have returned to some form of work 2 years after the accident. Demonstrative evidence: human skeleton; elevator locking device; photos of the accident scene. Specials: $50,000 for medical expenses; $90,000 for future lost earnings. Offer: $500,000; demand: $750,000 and waiver of Workers’ Compensation lien; amount asked of jury: $3,500,000. Jury deliberation: 6 hours. Pltf. Experts: Dr. John Croft, orth. surg., Manhattan; Dr. Nathaniel Shafer, internist, Manhattan; Edmond Provder, vocational rehabilitation, Manhattan (testified that Pltf. is unable to perform anything other than light-duty work); Edmond Mantell, economist, Scarsdale . Deft. Experts: Henry Huntt, elevator expert; Dr. Mortimer Shapiro, neuropsychiatrist, Manhattan; Dr. Robert M. Richman, orth. surg., Manhattan.
Pltf.’s motion for a new trial was granted in an 8-page decision by Judge Stecher, dated January 1991. In his request to set aside the verdict, Pltf. contended that the Court erred in failing to charge res ipsa loquitur; that the Court erred in failing to strike Henry Huntt’s testimony; and for allowing evidence of Pltf.’s use of alcohol before he arrived at work on the day of the accident. Pltf. also contended that Defts. made material misrepresentations and he sought “sanctions and costs agains [sic] the defendants in the sum of $150,000.” Decision at p. 1.
On the issue of the material misrepresentation, Pltf.’s attorney claimed that it was represented to him that the elevator parking lock was mechanical, not electrical, but that the prototype presented as evidence by GAL was electrical. Judge Stecher noted, “[t]hat the prototype brought to Court by GAL could have had an electrical attachment is thoroughly irrelevant. The evidence produced by the plaintiff was that the safety lock in actual use was mechanical only. Why plaintiff seeks sanctions against the other defendants who did not produce the prototype is less than clear.” Judge Stecher then denied the application for sanctions. Decision at p. 2, emphasis added.
The judge found that evidence that Pltf. drank alcohol on the morning of the accident was properly admitted. The emergency room physician had testified by deposition that Pltf. himself told him that he drank alcohol that morning, and he testified that the knowledge that Pltf. used alcohol was necessary for both diagnosis and treatment of his injuries. Decision at pp. 2-3.
On the issue of Mr. Huntt’s testimony, Judge Stecher noted that Huntt was asked by Deft. Millar’s attorney if he had an opinion as to whether the accident was caused by negligent maintenance of the parking lock device, and if he had an opinion as to the cause of the accident. Judge Stecher noted that Pltf. did not object to either of these questions until Mr. Huntt answered them, and he found that it was inappropriate to wait for the answer before objecting to the question. Decision at pp. 3-4.
On the issue of res ipsa loquitur, Judge Stecher found that it should have been presented to the jury although Pltf. brought this case exclusively on the theory that Defts.’ negligence caused the safety lock to fail. Judge Stecher noted that although the parking lock and the electrical interlock devices operate separately, it may be inferred that one or the other failed to work, and that this failure “would not ordinarily occur in the absence of negligence.” Decision at p. 7. Mr. Huntt had testified that the interlock was able to run even though the door was within of an inch of closing. He also contended that of an inch is acceptable under the New York City Administrative Code and ANSI. Judge Stecher found that Huntt’s testimony that of an inch is acceptable under both codes “should in no way have deprived plaintiff of the benefit of the res ipsa charge – and it is not for the Court to speculate on whether it would have changed the jury’s verdict.” Decision at p. 7. He also found that a res ipsa loquitur charge “does not require evidence of actual or constructive notice.” Decision at p. 8, citing Williams v. Swissotel New York, Inc., 152 A.D.2d 457. He granted Pltf.’s motion to set aside the verdict reinstating the complaint, Third-party complaints, and cross-complaints to all Defts. but GAL, and directed a new trial.