Beach v. B. F. Saul Property Co.

694 S.E.2d 147, 303 Ga. App. 689, 2010 Fulton County D. Rep. 1214, 2010 Ga. App. LEXIS 347

• Court: Court of Appeals of Georgia
• Decided: March 30, 2010
• Docket: A09A1770
• Status: Published

Opinions

Barnes, Judge.

Martha Beach and Sofia Deglel appeal the grant of a directed verdict to B. F. Saul Property Company¹ (“Saul Property”) on their claims arising from an incident in which they were trapped and repeatedly bounced up and down uncontrollably for almost an hour and a half in a malfunctioning elevator in an office building owned by Saul Property. Saul Property did not dispute Beach and Deglel’s account of the incident or contend that they were not trapped in the elevator as they asserted.

Although Beach and Deglel filed separate actions against Saul Property, the cases were consolidated for trial. Their complaints alleged that Saul Property negligently maintained the premises in question, and sought damages for the physical and emotional injuries they suffered.

Beach testified at trial that she and Deglel entered the elevator and pushed the button to go down, but the elevator went up until there was a metal-on-metal sound and it dropped down a little. Then, it stopped and began shaking them, bouncing them like a basketball, causing them to hit their heads and backsides, and clanging metal against metal. Beach was vomiting and “puking.”

They tried the emergency phone, but nothing worked. Deglel called 911. They were bouncing so fast that when they tried to dial the phone, their fingers would bounce between digits. Beach testified it was like missing one’s chair and falling to the floor; it was jarring, like her teeth were being jarred loose. The bouncing happened about five to ten seconds apart. Finally there was a loud crash and the elevator stopped; the doors were pried open and they were able to crawl out. Three or four men were gathered there. The EMTs came and wanted to take Beach to the hospital because her blood pressure was so high, but she did not want to go.

It had been raining on the day of the incident, but it was not stormy. There were no power surges the whole day. “It was an old, dreary, rainy, January, Atlanta, Georgia day.” The other elevators seemed to be working.

Beach did not speak to Saul Property’s building manager, but did receive an e-mail from her. Beach did not feel up to talking to her.

Deglel testified that during the time they were trapped in the elevator being bounced around, none of the emergency buttons worked. The elevator was going really fast; she was scared because “it was not a normal drop.” While they were trapped, she called Saul Property and told the woman who answered that they were stuck in the elevator, but she was disconnected. Deglel called back and spoke to her two or three times telling her, “You have to get us now because we are going to die; the way this elevator is going, we are not going to make it. You have to get somebody in here.” It seemed like they were in the elevator “forever.” She was throwing up. She thought she was going to die.

Then there was a “boom sound” and the door opened. They crawled out of the elevator. She was concerned about Beach because she was having heart problems. The paramedics were there, but they were mainly treating Beach.

Then, a security man came and Deglel told him that Beach was hurt and she told him “exactly what had happened” and that she was aching everywhere, that they had been throwing up in the elevator, and how long they were stuck there. He said that he was going to report it. Deglel did not speak to anyone from Saul Property until the next week.

Beach’s doctor testified that the trauma to her hand required surgery, and Deglel suffered from post-traumatic stress disorder. Beach and Deglel both introduced medical bills showing that they incurred substantial medical expenses.

Beach testified that the elevator malfunctioned every week, and Deglel testified that they were always skipping floors. Beach and Deglel introduced Saul Property’s records that supported their testimony. Repeated entries in the records show that the elevators were not leveling, they became stuck on various floors, and people were repeatedly trapped in them. Further, numerous witnesses testified about their problems on the elevators. The elevators were undependable; they always malfunctioned; they were so erratic that the problems were not worth reporting; problems happened with enough regularity that problems also did not warrant reporting; the elevators had minds of their own. One witness testified that on several occasions the elevators would not stop, but would continue to go up and down, and that she reported this to the building’s management “more than once.”

After Beach and Deglel presented their case, Saul Property moved for a directed verdict contending that they had failed to present any evidence of its prior superior knowledge of any defect that may have caused the elevator to malfunction. The trial court found that evidence produced by Beach and Deglel showed that Saul Property had a program of inspection² and repair of the elevator, that Beach and Deglel did not present expert testimony about the cause of the malfunction, that they did not present sufficient evidence to prove that Saul Property had superior knowledge of any problem with the elevators, that they did not present any evidence that the inspections or maintenance Saul Property actually performed were negligent or that it was put on notice that the elevator was defective during any of the inspections. The trial court further found that Saul Property “had inspection and repair procedures in place and used all reasonable precautions to protect its passengers from harm.” Accordingly, the court found that “there is no basis for a jury to find that [Saul Property] knew, or had reason to know, that elevator five was defective or presented a risk of harm to [Beach and Deglel].”

The trial court also found that Beach and Deglel had failed to establish that Saul Property had notice of an injury at the time of the incident or otherwise had cause to remove the elevator from service until a proper state authority conducted an inspection. The trial court found, however, that even with the benefit of the spoliation presumption, the result would have been the same. Consequently, the trial court granted Saul Property’s motion for a directed verdict.

Beach and Deglel contend the trial court erred by granting a directed verdict to Saul Property because the evidence they presented was sufficient to have their case decided by a jury. We agree, and reverse the grant of the directed verdict.

1. In Georgia,

[a] directed verdict is authorized only when there is no conflict in the evidence on any material issue and the evidence, with all reasonable deductions and construed in favor of the non-moving party, demands a certain verdict. Further, the trial court is not authorized to weigh the evidence or decide issues of fact. Therefore, we cannot affirm this grant of a directed verdict if there is any evidence supporting [Beach and Deglel’s] claims. Although a directed verdict would have been proper if [Beach and Deglel] simply failed to prove [their] case, we are satisfied the evidence is in conflict, and with all inferences that reasonably might be drawn therefrom, [including the presumption derived from Saul Property’s spoliation of evidence,] does not demand a verdict in favor of [Saul Property]. . . . Although there is evidence which could support a verdict in favor of [Saul Property] that is not a sufficient basis for directing a verdict. There must be no evidence of any kind supporting [Beach and Deglel’s] position.

(Citation and punctuation omitted.) Moore v. American Suzuki Motor Corp., 203 Ga. App. 189, 189-190 (1) (416 SE2d 807) (1992).

Building owners owe those who use their elevators the duty of exercising extraordinary care.

“The owner of an office building, equipped with an elevator which is operated for conveying his tenants and their employees and patrons to and from the various floors, is not a common carrier in the sense that he is bound to serve all the public; yet his duty as to protecting passengers in the elevator is the same as that chargeable to carriers of passengers by other means. [Cits.] This duty requires him to exercise extraordinary diligence on behalf of himself and his agents to protect the lives and persons of his passengers. [OCGA § 46-9-132³].” Grant v. Allen, 141 Ga. 106, 108 (1) (80 SE 279) (1913); see generally OCGA § 8-2-101 (b).

Gaffney v. EQK Realty Investors, 213 Ga. App. 653, 655 (445 SE2d 771) (1994). Even though premises owners owe a duty of “extraordinary diligence,” they are not ensurers of the safety of elevator passengers. Millar Elevator Svc. Co. v. O’Shields, 222 Ga. App. 456, 458 (2) (475 SE2d 188) (1996); see Lane v. Montgomery Elevator Co., 225 Ga. App. 523, 524-525 (1) (484 SE2d 249) (1997).

Although some cases of this court have applied premises liability principles in common carrier cases, in Southeastern Stages v. Stringer, 263 Ga. 641 (437 SE2d 315) (1993), our Supreme Court disapproved the

language in the Court of Appeals’ opinion applying premises liability law to common carrier cases. The rule applicable in common carrier cases is that whenever a carrier, through its agents or servants, knows or has opportunity to know of a threatened injury, or might have reasonably anticipated the happening of an injury, and fails or neglects to take the proper precautions or to use proper means to prevent or mitigate such injury, the carrier is liable. It is the common carrier’s duty to use proper care and vigilance to protect passengers from injuries by such persons that might reasonably have been foreseen and anticipated. Knowledge of the passenger’s danger, or of facts and circumstances from which that danger may reasonably be inferred, is necessary to fix the carrier’s liability in this class of cases. The carrier is not regarded as an insurer of his passenger’s safety against every possible source of danger; but he is bound to use all such reasonable precautions as human judgment and foresight are capable of, to make his passenger’s journey safe and comfortable.

(Citation and punctuation omitted.) Id. at 642-643. Therefore, even though some knowledge of the threat to the elevator passenger is required before liability may be imposed, the duties imposed on the elevator owner or operator are much greater because they are “bound to use all such reasonable precautions as human judgment and foresight are capable of, to make his passenger’s journey safe.”

In MARTA v. Rouse, 279 Ga. 311 (612 SE2d 308) (2005), quoting Savannah &c. R. Co. v. Boyle, 115 Ga. 836, 838-839 (42 SE 242) (1902), our Supreme Court further explained the duty of extraordinary care owed by those who owe extraordinary diligence.

[W]hen the circumstances are such that a person in the exercise of that degree of diligence known to the law as extraordinary care would see, or should apprehend, that the passenger is in danger of insult or injury; and when the circumstances were such that the employees . . . , in the exercise of the degree of diligence above referred to, should have foreseen that an insult or injury was to be reasonably apprehended, and failed or refused to use the means at hand to protect the passenger therefrom, the [carrier] is liable to the passenger for any damages he sustains as a consequence of such failure or refusal. The general rule would seem to he that whenever a carrier, through its agents or servants, knows or has opportunity to know of a threatened injury, or might have reasonably anticipated the happening of an injury, and fails or neglects to take the proper precautions or to use proper means to prevent or mitigate such injury, the carrier is liable. Knowledge of the passenger’s danger, or of facts and circumstances from which that danger may reasonably be inferred, is necessary to fix the carrier’s liability in this class of cases. The law now seems to be well settled that the carrier is obliged to protect his passenger from violence and insult, from whatever source arising. He is not regarded as an insurer of his passenger’s safety against every possible source of danger; but he is bound to use all such reasonable precautions as human judgment and foresight are capable of, to make his passenger’s journey safe and comfortable.

(Citations and punctuation omitted; emphasis supplied.)

Thus, owners or operators of an elevator, like common carriers of passengers, must exercise extraordinary diligence, i.e., “that extreme care and caution which very prudent and thoughtful persons exercise under the same or similar circumstances,” OCGA § 51-1-3, to protect the lives and persons of their passengers. The absence of extraordinary diligence, slight negligence, is sufficient to impose liability in these cases. See Millar Elevator Svc. Co. v. O’Shields, supra, 222 Ga. App. at 458 (2).

With the testimony from Beach and Deglel and the other witnesses, as well as Saul Property’s records, and giving Beach and Deglel the benefit of all reasonable deductions and construing the evidence, including the presumption arising from spoliation, as discussed infra, in their favor as the nonmoving parties, we cannot say that the evidence demanded a verdict in favor of Saul Property. Further, the trial court is not authorized to weigh the evidence or decide issues of fact as it has done in this case. We find that issues for the jury are presented on whether Saul Property knew or had opportunity to know of a threatened injury, and might have reasonably anticipated the happening of an injury, and failed or neglected to take the proper precautions or to use proper means to prevent or mitigate the injuries to Beach and Deglel. Additionally, issues of negligence, diligence, and proximate cause ordinarily are to be decided by a jury, and a court should not decide them except in plain and indisputable cases. Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 156 (1) (A) (256 SE2d 916) (1979). This is not such a case.

2. Beach and Deglel also allege that the trial court erred by finding that they were not entitled to the presumption of spoliation that arises from Saul Property’s violation of OCGA § 8-2-106. In relevant part this Code section states:

(a) The owner or lessee shall[4] report, by telephone, to the enforcement authority on the same day or by noon on the next work day, excluding state holidays and weekends, all elevator . . . related accidents involving personal injury or death. The owner or lessee shall also provide a written report of this accident within seven days.

[[Image here]]

(c) Any elevator . . . involved in an accident described in subsection (a) or (b) of this Code section shall be removed from service at the time of the accident. The equipment shall not be repaired, altered, or placed back in service until inspected by a certified inspector for the enforcement authority.

(Emphasis supplied.) Saul Property contends, and the trial court found, that it was not required to report the incident or take the elevator out of service until it could be inspected because it was not aware that the women suffered personal injuries. The evidence does not support that finding.

The evidence shows that both Beach and Deglel were injured in the accident and Saul Property’s security officer knew of this because Deglel told Saul Property’s security officer “exactly” what happened to them, that she was aching all over, and that Beach was hurt. She also told him that they had been vomiting. Further, the EMTs were on the scene treating Beach.

Saul Property’s property manager testified that she was called by security and told about the incident. She was also told that paramedics were called to the scene. The security person told her that there had been an incident, they had gotten the women out of the elevator, that he had called the paramedics because he was concerned that one of the women either had a stroke or a heart condition, but that the paramedics had checked them out and they were fine and were going home. He also told her that one of the women was visibly upset. Despite this knowledge the property manager took no timely action to investigate whether Beach or Deglel were injured. She did not call the State, or otherwise comply with OCGA § 8-2-106, even though she had done so when another tenant was trapped in the elevator.

Given this evidence, the trial court erred by finding that Saul Property did not have notice of an injury sufficient to cause it to comply with OCGA § 8-2-106. If nothing else, the jury was required to decide whether OCGA § 8-2-106 was implicated. Countenancing this degree of wilful ignorance will, in effect, eliminate the notice requirement from our law. This error is then compounded by the trial court’s reliance on the post-incident inspection by Saul Property’s elevator maintenance provider to support Saul Property’s defense that the elevator was functioning properly.

Moreover, the trial court’s finding that the presumption would have made no difference in the case misperceives the nature of the presumption. The presumption is “that the evidence would have been harmful to the spoliator.” (Punctuation and footnote omitted.) American Multi-Cinema v. Walker, 270 Ga. App. 314, 317 (2) (b) (605 SE2d 850) (2004). See also OCGA § 24-4-22.⁵ Proof of spoliation raises a rebuttable presumption that the evidence would have been harmful to Saul Property and thus the evidence favored Beach and Deglel, a fact rendering the grant of a directed verdict⁶ inappropriate. Baxley v. Hakiel Indus., 282 Ga. 312, 313 (647 SE2d 29) (2007); Lane v. Montgomery Elevator Co., supra, 225 Ga. App. at 525.

As in Baxley v. Hakiel Indus., “a meaningful link” existed between Beach and Deglel’s claims against Saul Property and the spoliation because an independent inspection by a certified State inspector could have revealed evidence relevant to the critical issue of the cause of the elevator’s malfunction and any relationship between the previous incidents involving the elevator. Baxley v. Hakiel Indus., supra, 282 Ga. at 313-314. Without a timely State inspection, no expert could be sure that the elevator had not been repaired or modified after the incident. Although Saul Property’s elevator maintenance provider attributed the cause of the incident to a power surge caused by lightning, a cause disputed by Beach and Deglel, without a timely State inspection, not affected by earlier repair efforts, “plaintiffs would never be able to show what malfunctioned and caused their injuries.” Lane v. Montgomery Elevator Co., supra, 225 Ga. App. at 526 (1).

Moreover, we do not find that Peterson Properties Corp. v. Finch, 235 Ga. App. 86 (508 SE2d 463) (1998), requires a different result because Peterson is distinguishable on its facts. See Thomas v. MARTA, 300 Ga. App. 98, 101 (1) (684 SE2d 83) (2009). The court in Peterson relied upon the absence of any evidence that reports of problems with the elevator had been received; in this case, however, the evidence shows repeated incidents with the elevators that were known to Saul Property. Accordingly, the spoliation rule as expressed in Lane v. Montgomery Elevator Co. should have applied to this case, and the trial court erred by finding otherwise.

Therefore, the grant of the directed verdict to Saul Property must be reversed.

Judgment reversed.

Johnson, P J., Blackburn, P. J., and Ellington, J., concur. Miller, C. J., concurs in judgment only. Andrews, P. J., and Mikell, J., dissent.

1 At one time ThyssenKrupp Elevator Company was a defendant, but it was dismissed from the case upon the motion of Beach and Deglel.

2 The evidence showed that the elevator was inspected by State inspectors on the morning of the incident.

3 “A carrier of passengers must exercise extraordinary diligence to protect the lives and persons of his passengers but is not liable for injuries to them after having used such diligence.”

4 “Shall” is generally construed as a mandatory directive. State v. Henderson, 263 Ga. 508, 510 (436 SE2d 209) (1993).

5 If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.

6 Although Baxley v. Hakiel Indus. and Lane v. Montgomery Elevator Co. are summary judgment cases, that principle applies equally to motions for directed verdict because the standards for both motions are the same. See OCGA §§ 9-11-50 (a) and 9-11-56 (c), and Svc. Merchandise v. Jackson, 221 Ga. App. 897, 898 (1) (473 SE2d 209) (1996) (“Under OCGA §§ 9-11-56 (c) and 9-11-50 (a), summary judgments and directed verdicts are appropriate only when the court, viewing all the facts and reasonable inferences from those facts, in a light most favorable to the nonmoving party, concludes that there are no issues to be tried.”).