HATHAWAY, Chief Judge.
The plaintiff sued the Valley National Bank (hereafter called Bank) for personal injuries resulting from being struck by an elevator door in the Valley National Bank building in Tucson. The Bank filed a [498]*498third party complaint against the Otis Elevator Company (hereafter called Otis) who had, under contracts between the Bank and Otis, installed and maintained the elevator in question.- The Bank alleged rights of indemnity against Otis based on Otis’ negligence and/or breach of warranty. Otis’ answer consisted of admissions and several denials and alleged no affirmative defenses. The Bank then moved for summary judgment on its third party complaint against Otis which motion was granted on April 21, 1966. The plaintiff’s action against the Bank was tried on June 21, 1966 and the plaintiff recovered judgment against the Bank. Otis timely filed a motion for new trial alleging error in the granting of the summary judgment. This motion was denied on October 28, 1966. Otis then filed its notice of appeal on December 16, 1966. This appeal by Otis from the granting of the summary judgment is the sole issue before us.
Otis had manufactured, sold and installed the elevator in question. At the time of the accident there was a contract of sale and maintenance between the Bank and Otis.
The questions presented to this court are:
1. Is Otis judicially estopped from appealing ?
2. If not, was summary judgment properly granted?
The Bank contends that since counsel for Otis, after the summary judgment against Otis, associated with the Bank’s counsel in the defense of the Bank against the plaintiff in the subsequent trial, Otis is judicially estopped from appealing from that summary judgment. The Bank reasons that for Otis to aid in the defense of the Bank is inconsistent with this appeal claiming error in the summary judgment. It claims that Otis’ actions in the main trial were at least an implied admission of the correctness of the summary judgment. . Otis replies that its actions in the main trial are not inconsistent with its position in this appeal since it undertook to assist the defense of the Bank to protect itself for in this situation the Bank might not be adequately concerned about liability or the amount of judgment.
We do not find it necessary to resolve the correctness of the reasoning of the Bank or Otis since our Supreme Court has clearly laid down the requirements for judicial estoppel in Adams v. Bear, 87 Ariz. 288, 294, 350 P.2d 751, 755 (1960):
“ * * * a party is bound by his judicial declarations and may not contradict them in a subsequent proceedings [sic] involving the same parties and questions.” (Emphasis supplied)
See also Martin v. Wood, 71 Ariz. 457, 229 P.2d 710 (1951) and Rossi v. Hammons, 34 Ariz. 95, 268 P. 181 (1928).
In the summary judgment action by the Bank against Otis only those two parties were involved since the action was based upon the Bank’s third party complaint against Otis. The plaintiff in the main action against the Bank was in no way involved in this summary judgment action. The question in the summary judgment proceeding was whether Otis was strictly liable to the Bank for the plaintiff’s injuries upon Otis’ contract with the Bank for the sale and maintenance of the elevator involved. However, in the subsequent trial the only parties were the plaintiff and the Bank; Otis was not a party to that action. There, the sole question was whether the Bank was liable to the plaintiff, a business invitee, for the plaintiff’s sustained injuries.
We hold that Otis is not precluded from appealing due to its aiding in the Bank’s defense against the plaintiff. Otis’ counsel withdrew as counsel for the Bank immediately after the verdict in favor of the plaintiff and are now in no way associated with the Bank’s counsel upon this appeal. We find no improper conduct on the part of Otis or its counsel.
In dealing with the propriety of the trial court’s entry of summary judgment, Otis refers this court to many facts which took place at the trial and the judgment [499]*499resulting from that trial, all of which took place approximately three months subsequent to the rendition of the summary judgment. The Bank correctly concludes that any reliance by Otis upon those facts and judgment is improper since the sole question involved here is whether, at the time of the Bank’s motion for summary judgment, there was presented by Otis a genuine and material issue of fact. The correctness of this conclusion is admitted by Otis in its reply brief.
The Bank submitted with its motion for summary judgment the affidavit of Philip G. Ring, manager of the Valley National Bank building on the corner of Congress and Stone Avenue in Tucson, Arizona. That affidavit states that in June of 1960 the Bank and Otis entered into a modernization contract of the Bank’s present elevator system and that in March of 1961 the Bank and Otis executed a five-year maintenance agreement whereby Otis agreed to maintain in a fit and safe operating condition the elevator in question. Also, the affidavit states that said maintenance agreement was in effect on January 15, 1965, the date of the alleged accident which resulted in injury to the plaintiff. Philip Ring further states in his affidavit that the Bank relied upon the representations of Otis and upon the implied representations concerning proper maintenance and repair of the elevator system; that all maintenance and repairs on the elevator system were left entirely up to Otis pursuant to the maintenance agreement; that no direct control or supervision over the actual maintenanace and repairs of the elevator system was exercised by any agent or employee of the Bank. Ring’s affidavit stands uncontradicted.
Otis defended against the Bank’s motion for summary judgment alleging in its affidavit :
“That the automatic elevator doors may be regulated to remain ‘at rest’ for any period which the customer desires, depending upon its particular needs and its particular traffic flow.
“That at no time has the Valley Bank Building advised Otis as to its particular needs in relation to the time which the doors should remain at rest. Neither did they during the period of two weeks prior to the injury of Dorothea Wilson (plaintiff) advise Otis of any malfunction of the door which is alleged to have struck Mrs. Wilson.”
Otis contends that a material and genuine issue of fact was presented as to whether the Bank exercised due care in failing to inform Otis of its needed “at rest” period for the elevator system.
In its motion for summary judgment, the Bank cited First National Bank of Arizona v. Otis Elevator Company, 2 Ariz.App. 80, 406 P.2d 430 (1965), supplemented at 2 Ariz.App. 596, 411 P.2d 34 (1966), and relies heavily on that case in this appeal. The facts there are similar to those in the instant case and involved an interpretation of a similar maintenance contract.
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HATHAWAY, Chief Judge.
The plaintiff sued the Valley National Bank (hereafter called Bank) for personal injuries resulting from being struck by an elevator door in the Valley National Bank building in Tucson. The Bank filed a [498]*498third party complaint against the Otis Elevator Company (hereafter called Otis) who had, under contracts between the Bank and Otis, installed and maintained the elevator in question.- The Bank alleged rights of indemnity against Otis based on Otis’ negligence and/or breach of warranty. Otis’ answer consisted of admissions and several denials and alleged no affirmative defenses. The Bank then moved for summary judgment on its third party complaint against Otis which motion was granted on April 21, 1966. The plaintiff’s action against the Bank was tried on June 21, 1966 and the plaintiff recovered judgment against the Bank. Otis timely filed a motion for new trial alleging error in the granting of the summary judgment. This motion was denied on October 28, 1966. Otis then filed its notice of appeal on December 16, 1966. This appeal by Otis from the granting of the summary judgment is the sole issue before us.
Otis had manufactured, sold and installed the elevator in question. At the time of the accident there was a contract of sale and maintenance between the Bank and Otis.
The questions presented to this court are:
1. Is Otis judicially estopped from appealing ?
2. If not, was summary judgment properly granted?
The Bank contends that since counsel for Otis, after the summary judgment against Otis, associated with the Bank’s counsel in the defense of the Bank against the plaintiff in the subsequent trial, Otis is judicially estopped from appealing from that summary judgment. The Bank reasons that for Otis to aid in the defense of the Bank is inconsistent with this appeal claiming error in the summary judgment. It claims that Otis’ actions in the main trial were at least an implied admission of the correctness of the summary judgment. . Otis replies that its actions in the main trial are not inconsistent with its position in this appeal since it undertook to assist the defense of the Bank to protect itself for in this situation the Bank might not be adequately concerned about liability or the amount of judgment.
We do not find it necessary to resolve the correctness of the reasoning of the Bank or Otis since our Supreme Court has clearly laid down the requirements for judicial estoppel in Adams v. Bear, 87 Ariz. 288, 294, 350 P.2d 751, 755 (1960):
“ * * * a party is bound by his judicial declarations and may not contradict them in a subsequent proceedings [sic] involving the same parties and questions.” (Emphasis supplied)
See also Martin v. Wood, 71 Ariz. 457, 229 P.2d 710 (1951) and Rossi v. Hammons, 34 Ariz. 95, 268 P. 181 (1928).
In the summary judgment action by the Bank against Otis only those two parties were involved since the action was based upon the Bank’s third party complaint against Otis. The plaintiff in the main action against the Bank was in no way involved in this summary judgment action. The question in the summary judgment proceeding was whether Otis was strictly liable to the Bank for the plaintiff’s injuries upon Otis’ contract with the Bank for the sale and maintenance of the elevator involved. However, in the subsequent trial the only parties were the plaintiff and the Bank; Otis was not a party to that action. There, the sole question was whether the Bank was liable to the plaintiff, a business invitee, for the plaintiff’s sustained injuries.
We hold that Otis is not precluded from appealing due to its aiding in the Bank’s defense against the plaintiff. Otis’ counsel withdrew as counsel for the Bank immediately after the verdict in favor of the plaintiff and are now in no way associated with the Bank’s counsel upon this appeal. We find no improper conduct on the part of Otis or its counsel.
In dealing with the propriety of the trial court’s entry of summary judgment, Otis refers this court to many facts which took place at the trial and the judgment [499]*499resulting from that trial, all of which took place approximately three months subsequent to the rendition of the summary judgment. The Bank correctly concludes that any reliance by Otis upon those facts and judgment is improper since the sole question involved here is whether, at the time of the Bank’s motion for summary judgment, there was presented by Otis a genuine and material issue of fact. The correctness of this conclusion is admitted by Otis in its reply brief.
The Bank submitted with its motion for summary judgment the affidavit of Philip G. Ring, manager of the Valley National Bank building on the corner of Congress and Stone Avenue in Tucson, Arizona. That affidavit states that in June of 1960 the Bank and Otis entered into a modernization contract of the Bank’s present elevator system and that in March of 1961 the Bank and Otis executed a five-year maintenance agreement whereby Otis agreed to maintain in a fit and safe operating condition the elevator in question. Also, the affidavit states that said maintenance agreement was in effect on January 15, 1965, the date of the alleged accident which resulted in injury to the plaintiff. Philip Ring further states in his affidavit that the Bank relied upon the representations of Otis and upon the implied representations concerning proper maintenance and repair of the elevator system; that all maintenance and repairs on the elevator system were left entirely up to Otis pursuant to the maintenance agreement; that no direct control or supervision over the actual maintenanace and repairs of the elevator system was exercised by any agent or employee of the Bank. Ring’s affidavit stands uncontradicted.
Otis defended against the Bank’s motion for summary judgment alleging in its affidavit :
“That the automatic elevator doors may be regulated to remain ‘at rest’ for any period which the customer desires, depending upon its particular needs and its particular traffic flow.
“That at no time has the Valley Bank Building advised Otis as to its particular needs in relation to the time which the doors should remain at rest. Neither did they during the period of two weeks prior to the injury of Dorothea Wilson (plaintiff) advise Otis of any malfunction of the door which is alleged to have struck Mrs. Wilson.”
Otis contends that a material and genuine issue of fact was presented as to whether the Bank exercised due care in failing to inform Otis of its needed “at rest” period for the elevator system.
In its motion for summary judgment, the Bank cited First National Bank of Arizona v. Otis Elevator Company, 2 Ariz.App. 80, 406 P.2d 430 (1965), supplemented at 2 Ariz.App. 596, 411 P.2d 34 (1966), and relies heavily on that case in this appeal. The facts there are similar to those in the instant case and involved an interpretation of a similar maintenance contract. This court held that Otis was strictly liable to the Bank for the injuries to the plaintiff (who was struck by an elevator door while attempting to enter the elevator) based upon the implied warranties under the sale contract to the Bank, which implied warranties were extended by the subsequent maintenance agreement between the Bank and Otis. That contract was in effect at the time that the plaintiff sustained her injuries. We stated:
“As between the Bank and Otis in an action based on contract, the record shows that Otis was in actual physical control of the mechanism of the elevators. The Bank by contract had relinquished to Otis physical control of the elevators for the purpose of maintenance and repair, while it retained legal control of them since it alone could authorize their use.
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“The loss here directly and naturally resulting, in the ordinary course of events, from the breach of warranty was the judgment in favor of plaintiff for damages for personal injuries. The Bank [500]*500is entitled to recover the amount of the damages awarded against it to the Plaintiff on the theory of strict liability for breach of the statutory implied warranty of Otis.” 2 Ariz.App. at 90-91, 406 P.2d at 440.
Additionally, elevator doors should not operate so as to forcibly knock a person down. It would seem apparent from the sales contract in the instant case that Otis is in accord with this belief. In Otis’ modernization contract with the Bank an express warranty that the doors will not so contact persons is stated:
“An electronically operated proximity detector device will be installed on the leading edge of the car doors. This device will contain specially designed electronic tubes and suitable antennae enclosed in an insulated metal chassis so that the antennae, electronic tubés, and associated equipment are not visible. The device will create a three-dimensional zone of detection for virtually the entire height of the door opening. This zone of detection will extend a short distance in front of the leading edge of both the car doors and the hoistway doors. The doors will be prevented from closing from their fully open position if a person within the zone of detection causes the detector to operate. The zone of detection will move forward as the doors close and the presence of a person within this zone will operate one or more of the electronic tubes to stop and reopen the doors, after which the doors will again start to close.”
This conclusion is further substantiated in First National Bank v. Otis Elevator Company, supra, at page 89, 406 P.2d 430.
Otis’ affidavit and the record that were before the trial court at the time of the Bank’s motion for summary judgment alleged no facts which if Otis proved would relieve Otis of its duty to indemnify the Bank or to make Otis and the Bank joint tort-feasors. The general allegations in the affidavit of Otis’ representative, C. O. Eagler, present no material or genuine issue of fact that relieve Otis of its obligation to indemnify the Bank. The mere statement, as above noted, regarding the “at rest” period of the elevators does not overcome Otis’ strict duty to maintain the elevators in such working order that they will not strike any person entering or exiting the elevators. Further, the general negative statement contained in Eagler’s affidavit that the Bank did not advise Otis of any malfunction of the elevator door two weeks prior to the injury presents nothing which would exculpate Otis’ duty to the Bank under both the modernization and maintenance agreements. Negative allegations are insufficient to present a genuine issue of fact. Stevens v. Anderson, 75 Ariz. 331, 256 P.2d 712 (1953).
The rendering of summary judgment in the trial court in favor of the Bank against Otis is affirmed.
NOTE: Judge HERBERT F. KRUCKER having requested that he be relieved from consideration of this matter, Judge NORMAN S. FENTON was called to sit in his stead and participate in the determination of this decision.