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O''Brien v. Bethlehem Steel Corp.

Decided: July 22, 1971.

EMMET J. O'BRIEN AND ESTELLE O'BRIEN, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
BETHLEHEM STEEL CORPORATION, A CORPORATION, DEFENDANT-RESPONDENT



For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the Court was delivered by Schettino, J. Francis, J. (concurring). Justice Proctor joins in this concurring opinion. Francis and Proctor, JJ., concur in result.

Schettino

This is a negligence action. Plaintiff-husband, Emmet J. O'Brien, fell into an elevator shaft located in a building owned by defendant Bethlehem Steel Corporation. He claimed injuries and brought this suit, charging that defendant's negligent installation, construction and maintenance of the elevator had caused his fall. His wife, Estelle O'Brien, joined to recover her consequential losses. Defendant denied negligence and asserted plaintiff-husband's contributory negligence as a bar to recovery. At the close of plaintiffs' case, defendant rested without producing any evidence on its behalf. The jury returned a verdict of no cause of action in favor of defendant. On appeal, in an unreported per curiam opinion, the Appellate Division affirmed the judgment, rejecting plaintiffs' contention that the trial court committed reversible error in its charge to the jury. We granted certification. 57 N.J. 137 (1970).

The testimony at trial revealed the following. At the time of the accident, O'Brien was 56 years of age. He had a sight impairment, having no vision except for light in his left eye. O'Brien was employed by the Wackenhut Corporation, which supplied security guards for defendant. In that capacity, O'Brien had worked for approximately two and one-half weeks at defendant's plant and was responsible, among other duties, for inspecting various buildings and areas in the plant complex to "determine that everything was in order." One of these buildings, the Seed Building, is a nine-story warehouse; it is used primarily for storage but also houses the plant engineer's office. O'Brien fell into an elevator shaft located in this building.

The Seed Building elevator is used primarily to move freight. Men accompany the freight and also use the elevator to retrieve materials from the warehouse. Moreover, the building's office personnel regularly use it. The elevator was constructed by the Otis Elevator Company and has a 10,000 lb. capacity. It has two outer calamine steel veneer doors which move in vertical directions and another wooden

sliding door located inside the elevator car. Normally, both sets of doors must be closed to operate the car; and, as we understand it, if the doors at any landing are open, the elevator cannot be moved by using the usual control mechanism. When the outer doors are in a closed position, a latch on the inside of these doors automatically locks them in that position; and, theoretically, this latch prevents the doors from being opened when the elevator is not at that landing. When the latch is disengaged, the outer doors can then be opened manually. As the upper door is raised, the lower door automatically descends to allow ingress to the car. The elevator services all nine floors of the Seed Building, as well as the basement. There is, however, no indicator on the outside of the elevator showing which floor it is on; and, the only indication that the elevator is not at a particular level is that the doors are shut and locked.

On August 21, 1965, the day of the accident, O'Brien was engaged in his inspection duties. According to his testimony, he entered the Seed Building where he was to check the first three floors. When he reached the elevator on the first floor, he found the outer doors "partially opened" and he pushed the upper half up, which automatically lowered the bottom half. Although O'Brien was confronted with nothing but total darkness when the doors opened, he nonetheless stepped forward to get into the elevator. The elevator, however, was not on the first floor, and O'Brien fell 14 1/2 feet to the bottom of the shaft, suffering serious injuries as a result.

O'Brien explained why he stepped unhesitantly into the darkened shaft, saying his conduct was based on his past experience with freight elevators in general and with the Seed Building elevator in particular. From past experience with similar freight elevators, O'Brien stated he relied on the fact that elevator doors on a particular floor level would not be open, and indeed cannot be opened, unless the car is at that level. O'Brien was not alerted to danger by the darkness because he thought this elevator car was always

unlighted except when in actual use. He testified that the same condition had prevailed one week earlier, when he was instructed on his duties by one Dooley, a fellow Wackenhut employee. On that occasion, Dooley had accompanied O'Brien on his first inspection "tour"; led him to the Seed Building; went directly to the elevators, and opened the doors completely; walked into the darkness; switched the light on inside the car and stood at the controls. O'Brien emphasized that when Dooley opened the doors and walked in, the elevator was "pitch black" and "you couldn't see." However, Joseph J. Guider, an employee of defendant whom plaintiff called as a witness, testified that to his knowledge the light inside the elevator car is "on all the time."

At trial, plaintiffs argued that defendant's breach of its duty to provide a reasonably safe elevator was responsible for the accident. Plaintiffs contended that in the context of the facts, defendant's duty was to provide an elevator whose doors at a particular floor level could not be improperly left open when the elevator was not at that level. Plaintiffs claimed that, as a result of defendant's negligent installation, maintenance and construction of the Seed Building elevator, the elevator was defective in this respect; and, as a foreseeable consequence of this negligence, the elevator doors at the first floor level were in a partially open position on the date of the accident, although the elevator car was not at that level.

Plaintiffs called Robert J. Mathis, an employee of defendant and the head of mechanical maintenance for its entire complex at Hoboken, as a witness. Mathis' duties included maintenance of the elevator in the Seed Building. Mathis was working on the date of the accident, had used the elevator to get to his second-floor office shortly before O'Brien's fall and had left it there. Mathis testified that the elevator would not normally move until both the outer doors and the wooden gate were closed. He noted, however, that there were means by which the elevator could be moved without closing the outer doors and by which they could be opened even

though the elevator car was not behind them. First, he testified that inside the car, adjacent to the control panel, was an "override button" which, when depressed, allowed the elevator to operate with the doors open. Although the override button was ostensibly designed to facilitate elevator maintenance work, no peculiar knowledge was required to operate it, and it was visible and easily accessible to anyone using the car. Furthermore, since the outer doors did not close automatically and the person using the elevator had to manually pull them shut to engage the latching device, there was a built-in incentive to use the override button rather than take the safer course of closing the doors. Second, Mathis testified that the doors could be pried open enough to permit a tool to disengage the safety latch inside and thus open the doors. And, finally, Mathis stated that the latch on the first-floor doors, which were used most frequently, had so much "give" that it was even possible to open it without the use of a prying instrument; indeed, Mathis admitted that he, himself, had done so during the course of maintenance work.

Following Mathis' testimony, plaintiffs called Arthur Davis, a licensed architect, as an expert witness. Davis was asked whether the Seed Building elevator, based on Mathis' description and on his own observation, was in conformance with existing State regulations. Davis replied that the Seed Building elevator was not "in conformance with standards and codes in effect in New Jersey." These codes, he said, require that if the elevator doors are open then the car cannot be moved; yet, the override button permitted the operation of the car even though the doors were open. Davis admitted, however, that in certain limited circumstances the function served by an override button is permissible. Those circumstances included allowing the elevator to be raised or lowered a few inches for repair or leveling purposes; but, in the instant case, the button, and its location, permitted the elevator to be moved, not just a few inches above or below the landing for leveling, but to be indiscriminately moved

from one story to another with the doors open at the first floor. Davis also thought that the fact that the door could be opened from the outside by hand and the lock tripped, with the car not there, constituted a violation of the safety standards.

Following the completion of the testimony, the trial court submitted the case to the jury, instructing it generally on the concepts of negligence, contributory negligence and proximate cause. The jury, as we have said, returned a verdict in defendant's favor; and, on this appeal, plaintiffs contend that that verdict was the result of several errors in the trial court's charge.

I

Plaintiffs' first claim of error relates to that portion of the trial court's charge concerning the applicability of certain State safety regulations to the Seed Building elevator. The trial court permitted the text of N.J.S.A. ...


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