On appeal from the Superior Court, Law Division, Union County.
Michels, Deighan and Stern. The opinion of the court was delivered by Stern, J.s.c., (temporarily assigned).
Defendant Westinghouse Elevator Company appeals from a judgment of the Law Division entered on a jury verdict awarding plaintiff Ana Rivera damages in the sum of $150,000 plus interest. Defendant contends that: (1) "[p]laintiff did not establish a cause of action in negligence by which defendant Westinghouse can be found 100% liable for the death of Jose Rivera"; (2) "[t]he cumulative effect of the trial court's errors in admitting and excluding evidence resulted in a verdict which was a miscarriage of justice and against the weight of the evidence", and (3) "[t]he charge to the jury on concurrent negligence constituted reversible error".
Jose Rivera had been employed as a maintenance worker at City Federal Savings and Loan (City Federal) since 1971. On January 19, 1981 he and three co-workers were directed by their supervisor, John Paul Mitchell, to move a large conference table down to the street level for removal from the building. They did so by using the top of the elevator cab. According to Mitchell, it had been the practice of the City Federal maintenance
crew to utilize the top of the elevator to transport large items several times each year.
The elevator had been manufactured by defendant which serviced the elevator pursuant to a continuing maintenance agreement. By the terms of this contract defendant made quarterly inspections of the elevator and responded to service requests when necessary. The service contract excludes repairs necessitated by negligence, accident or misuse of the equipment.
When large equipment or furniture was moved at the City Federal building a maintenance worker would get on top of the elevator where a control box regulating manual or automatic operation was located. The controls simply said "on" and "off", but did not specify which mode was being engaged. In addition, there was a box on a cord which controlled movement, and there was a light bulb on top of the elevator.
The workers would turn on the light and switch the controls to manual. This was designed to prevent movement of the elevator resulting from use of the automatic call buttons from any of the floors. After loading the equipment they would close the doors and one or more men would hold the item while another operated the controls. In the manual mode the elevator would move very slowly. When the elevator reached the desired floor (one floor below the floor on which the equipment was to be removed) they would push a lever to open the doors and unload the equipment. Mitchell testified that it was common practice to so utilize the elevator for moving large items. He stated that he had never seen any written instructions for using the top of the elevator, nor had he ever received written or verbal warnings from City Federal or defendant about the practice.
On December 28, 1978, defendant's employee Thomas Brennan made a service call to City Federal because the elevator was not operating. The invoice prepared by Brennan indicated that the shutdown was due to dust and dirt from the hanger
track and gibs which caused the door to come off the track. The problem resulted from hoisting building materials on top of the elevator. According to Brennan, he told Rivera that he shouldn't be using the elevator top to move material, that it was "dangerous" to do so, and that defendant would have to charge City Federal for the service call. Rivera signed the invoice.
Brennan claimed that he also spoke to Mitchell about the improper use of the elevator and told him that it was "dangerous" to use it as he did. According to Brennan, he had no other indication that the elevator was being ...