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Jardine v. Rubloff

OPINION FILED AUGUST 4, 1977.

YOLANDA JARDINE, PLAINTIFF-APPELLANT,

v.

ARTHUR RUBLOFF ET AL., D/B/A CARL SANDBURG CENTER, ET AL., DEFENDANTS. — (ARTHUR RUBLOFF ET AL., D/B/A CARL SANDBURG CENTER, ET AL., COUNTERPLAINTIFFS-APPELLANTS,

v.

OTIS ELEVATOR COMPANY, COUNTERDEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. IRVING R. NORMAN, Judge, presiding.

MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of the circuit court of Cook County. Yolanda Jardine (hereinafter "plaintiff") filed a complaint in the circuit court seeking recovery for personal injuries from Arthur Rubloff & Co. (hereinafter "Rubloff"), Arthur Rubloff, Stanley Goodfriend and George Dovenmuehle, co-partners d/b/a Carl Sandburg Center (hereinafter "Sandburg Center"), and Otis Elevator Company (hereinafter "Otis"). Sandburg Center and Rubloff then filed a countercomplaint seeking indemnity from Otis for any judgment entered against Sandburg Center in favor of the plaintiff. The jury returned a verdict in favor of the plaintiff and against Sandburg Center and Rubloff in the amount of $65,000, and against the plaintiff and in favor of Otis. The jury's verdict also rejected the counterclaim of Sandburg Center and Rubloff against Otis. Judgment was entered on the verdict, and thereafter post-trial motions of the plaintiff and counterplaintiffs, Sandburg Center and Rubloff, for judgment notwithstanding the verdict were denied. Plaintiff and counterplaintiffs now appeal the judgment in favor of Otis on the complaint and countercomplaint respectively.

The issues presented for review are (1) whether the jury's verdict in favor of Otis and against the plaintiff is contrary to the manifest weight of the evidence; and (2) whether the jury's verdict of the counterclaim in favor of Otis and against Sandburg Center and Rubloff is contrary to the manifest weight of the evidence.

Plaintiff's two-count complaint sought recovery for personal injuries sustained on December 12, 1969, when she fell while alighting from an elevator allegedly malfunctioning in its levelling system. Count I charged Rubloff and Sandburg Center with negligence in the ownership, operation, maintenance, management or control of the elevators thereby breaching their duty as common carriers of passengers. Count II charged Otis with negligence in designing, manufacturing, furnishing and installing a defective elevator system.

Sandburg Center then filed a two-count countercomplaint seeking indemnity from Otis for any judgment entered against them and in favor of plaintiff. Count I was predicated on a contractual agreement between the parties. Count II sought relief on the common law active-passive negligence theory. Otis admitted the existence of the agreement, denied the agreement supported a countercomplaint and moved to strike count I, relying on page two of that agreement which provided:

"It is agreed that we (Otis) do not assume possession or control of any part of the equipment but such remains yours exclusively as the owner (or Lessee) thereof * * * under no circumstances shall we be liable for consequential damages."

Otis also denied the material allegations of count II of the countercomplaint, yet admitted its relationship to the elevator system and its contractual relationship with the counterplaintiffs.

At trial, Yolanda Jardine testified she resided at D Building, 1355 North Sandburg Terrace, Chicago, Illinois, since 1963. Three elevators serviced that building, one being a service elevator. She utilized the service elevator every morning to take her dog out for a walk.

She last recalled observing non-levelling of the service elevator 30 to 45 days prior to her accident.

On December 12, 1969, while taking her dog down the service elevator, she noticed an unlevel condition of approximately one inch when the doors opened. As she started to lift her foot, the elevator jerked, pitching her forward and causing her to land against the wall opposite the elevator.

Susan Wyle testified that in November of 1969 she resided on the ninth floor of the Dickenson Building, located at 1355 Sandburg Terrace in Chicago, Illinois. The building was serviced by two passenger elevators and one freight or service elevator, and she had occasion to use all three of them in the latter part of 1969.

She testified that some time in November of 1969 she became aware that the service elevator stopped below floor level at the first floor of her building when she tripped getting out of the elevator and fell flat on her face. Sometime in December she noticed the condition again when she tripped while exiting. Her present recollection was the elevator was at least an inch below floor level during the period between the first and second time she tripped. Those two occasions were the only observations of anything at all unusual about the service elevator.

William Arbuthnot testified he was the elevator mechanic working for Otis and was responsible for the maintenance of the elevators at Sandburg Village in 1968 and 1969. Otis had a full maintenance contract with Sandburg Center to keep the elevators in good working condition and to make sure they functioned properly, which would include preventive maintenance and replacing equipment before trouble occurred with a particular piece of equipment. Any adjustments that would be required to be made to the equipment were performed only by the Otis mechanic. The Sandburg Center engineers were a different trade and had nothing to do as far as the work on the elevator equipment.

Arbuthnot further testified he serviced Sandburg Village on a 40-hour, five-day-a-week schedule excepting the period of time he serviced the four elevators at the Ambassador Hotel. He reported in at 8 a.m., and his quitting time was 4:30 p.m. Anything happening to the elevators after 4:30 p.m. resulted in Sandburg Center calling the Otis office or the answering service who would then get in touch with him or the next available maintenance man. It was the Otis maintenance office that determined who and how many men would be assigned to the Sandburg Village job. Arbuthnot testified he was the only person assigned to the Sandburg complex on a full-time basis for 1969, for maintenance of the elevators.

Arbuthnot stated he performed maintenance on each of the elevators in Building 1355 once a week. He had no particular routine, but did make sure he examined each building once a week and rode each elevator in each building once a week. He carried a check chart which provided a check list for each individual elevator. The check list recommended checking the parts of certain equipment once a week, once a month, quarterly or semi-annually. He checked the levelling operation once a week. A stopping contact exists for each direction on the cam (which is attached to the controller). As the elevator descends the contact comes off, the brake will be applied and the elevator will stop. If the elevator descends below ...


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