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Buford v. Chicago Housing Authority

OPINION FILED FEBRUARY 11, 1985.

DEMETICA BUFORD, A MINOR, BY HER MOTHER AND NEXT FRIEND, ANNIE BUFORD, PLAINTIFF-APPELLEE AND APPELLANT,

v.

THE CHICAGO HOUSING AUTHORITY, DEFENDANT-APPELLEE (OTIS ELEVATOR COMPANY, DEFENDANT-APPELLANT).



Appeal from the Circuit Court of Cook County; the Hon. Charles J. Durham, Judge, presiding.

JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

A jury found defendants Chicago Housing Authority (CHA) and Otis Elevator Company (Otis) liable in negligence for injuries sustained by plaintiff when she fell into an elevator shaft on CHA's property. The circuit court entered judgment on the verdict against Otis, granted CHA's motion for judgment notwithstanding the verdict, and set aside the jury's answer to a special interrogatory. Otis appeals from the judgment; plaintiff separately appeals from the judgment as to CHA setting aside the special finding and granting judgment n.o.v.

These appeals raise as issues whether the circuit court erred by: (1) denying Otis' motion for a new trial; (2) permitting plaintiff's witness to testify as an expert; (3) granting CHA's motion for judgment n.o.v.; (4) setting aside the jury's special finding; and (5) conditionally granting CHA's motion for a new trial.

On the afternoon of August 28, 1979, the 9-year-old, 90-pound plaintiff was standing beside the two elevators *fn1 on the first floor of the Rockwell Gardens CHA building at 2514 West Van Buren, in which she lived with her family. Plaintiff and a girl named Emma scuffled and Emma pushed plaintiff, who stumbled back and hit the closed odd elevator door, the bottom of which pushed in. Plaintiff fell a distance of 15-16 feet to the bottom of the elevator shaft, and was taken to a hospital, having sustained a comminuted supracondylar fracture of the left humerus.

On December 12, 1980, plaintiff initiated the instant action, naming as defendants CHA (owner of the building), Otis (responsible for maintaining and repairing the elevators), and Westinghouse Electric Corporation (manufacturer of the elevator). The circuit court granted Westinghouse Electric Corporation's motion for summary judgment on June 26, 1981, which order is not involved in this appeal. The amended complaint, filed on June 7, 1983, named only CHA and Otis as defendants.

At trial, which began on June 8, 1983, plaintiff called an Otis elevator repairman, Wayne Sliger, as an adverse witness under section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1102). Sliger, a "card mechanic," the highest level of competency below foreman, had been repairing elevators in Rockwell Gardens since 1968. In 1979, he reported to the Rockwell Gardens CHA office, where he picked up work order tickets designating the repairs he would then perform. Upon completion of a repair, he noted on the work ticket the problem found and the work performed. Both Otis and CHA personnel were thereby made aware of what he did and where he did it.

Sliger described a "gib" as a metal guide attached to the bottom of the elevator door which holds the door in a lengthwise slot in the doorsill, as the door travels back and forth upon opening and closing. Rockwell Gardens' elevator door gibs became disengaged from their sills at least once per week, which Sliger discussed with his supervisors at Otis. CHA supervisors may have mentioned it every so often and were aware of this recurring condition. A door disengaging from the gib slot would still hang parallel from top to bottom and the elevator would continue to operate. No warning device is triggered if a door is disengaged. There were no signs posted warning of this condition. Based on his experience, doors which have been disengaged at the bottom are easier to disengage thereafter. He generally repaired bent gibs by hammering them straight, sometimes straightening the same gib more than once. He was aware of the effects of metal fatigue, which depended on the degree of bend and the length of time the gib was in use. After repairing a door, he pushed on it with his hands to see if it would hold. He replaced gibs which he considered inadequate.

Sliger testified about the specific repairs he made during August 1979 to the subject odd elevator. On August 1, the door was "hanging" on the 11th floor, as the gib had been bent from force being applied to the door; he repaired the door by straightening the gib. On August 3, the first floor door was "off track" and the gibs bent; he straightened the gibs. On August 10, the door was off track on the 9th floor; he rehung the door. On August 18, he repaired the door lock contact on the 9th floor. On August 21, the first floor door was hanging by a single hanger and, as the shaft was exposed, had to be barricaded; he rehung the door, noting that two gibs were in place. On August 22, the same door had been kicked off again, and was off track with the gibs bent; after he straightened the gibs, the door was working perfectly. On August 23, the first floor door was working correctly. Sliger was on vacation when the subject accident occurred.

Al Blanton, an Otis "permit mechanic," testified that during 1978-79 he was Sliger's "helper," and was the repairman when Sliger was not at work. During Sliger's August 1979 vacation, Blanton worked on the subject odd elevator. On August 25, the elevator was out of order because a beer can had been jammed in the back of the elevator cab door on the 5th floor. On August 27, the 13th floor hatch door was off track. On August 28, he was told a child had fallen into the "pit" and the elevator needed repair. He found the first floor gibs "completely not usable," as they had been bent back and broken off. To be up to standard, a bent gib needed to be replaced with a new one. He would never attempt to reuse a gib, but would replace it with a new one, as the gibs alone keep the bottoms of the doors from falling in. Whether to reuse or replace a bent gib was left to the repairman's discretion, but he would always inform management of the condition of the gib.

Blanton was never taught about how much pressure an elevator door should withstand. He usually replaced bent gibs, because if a piece of steel is bent, it starts to lose strength and if it continues being bent, it gets weaker. The more gibs used, the more pressure the door could withstand. Although the doors were designed for use with one gib, a second gib was added at some point for strength. After he added three new gibs when repairing the elevator on the day following the accident, the doors were not kicked off again.

Ervin Sprull, also called by plaintiff as an adverse witness, had been the CHA janitor in charge of the subject building since 1972. Two persons comprise the normal janitorial staff per building. Elevators are cleaned daily. In the morning, the elevators are checked; any problems are reported to the CHA maintenance office. He customarily walks from the first to the 13th floor, checking all elevator doors. Twice each morning and afternoon, janitors ride the elevators to pick up garbage at each floor. Elevator doors were frequently kicked in.

Dale Piechocki, a city of Chicago elevator inspector and card-holding elevator mechanic, testified for plaintiff. If a gib was bent, he would replace it with a new one; if a replacement were not immediately available, he would straighten and reinstall the damaged gib, but only if it appeared safe enough to run for an hour until a new gib could be secured. He would hesitate to straighten a gib because the metal would be fatigued. The more metal is bent, the greater are its chances of breaking. He inspected the subject elevator door on August 29, 1979, and found it to have only one gib, which was in "passable" condition. He didn't know whether the same gib was on the door when the accident took place. A door not connected at its lower end by a gib would still operate. In his opinion, an elevator door which could not withstand the weight of a 90-pound girl's body pushing against it would be unsafe, although he was not permitted to consider this question with the hypothetical alternatives of a gib's being in place or not.

Also testifying for plaintiff was John Stilson, a safety and automobile consultant with B.S. and M.S. degrees in mechanical engineering. According to Stilson, gibs are used to provide proper tolerance and tightness of fit to prevent the particular part from moving too much out of plane. A gib which had been bent and then hammered straight would be out of specification and would not function to its intended purpose. While a hammered gib could still operate in its guiding fashion, its structural integrity and load carrying capability, as well as its endurance and durability, would definitely be deteriorated. He calculated the force generated by a 90-pound individual, pushed three to five feet, and was of the opinion that a door giving way to such force was improperly repaired or maintained, since the system, as originally designed, should have withstood the impact. On cross-examination, Stilson conceded that a "mild" bend could have been straightened without causing an accident.

Testifying for CHA was Cary Tucker, CHA janitor, who was on duty in the subject building when the incident occurred. He checked the elevators that morning, using them to go up and down. He used the first floor odd elevator door 30 minutes before the accident, and noticed nothing wrong. Immediately before the accident, he saw some girls playing in front of the elevator. One girl was pushed, her back hit the door which swung in, and she fell into the shaft. The door "swung freely" and made "no sound" when hit. There was an ongoing problem at Rockwell Gardens involving elevator doors being kicked or pushed in. The people in Rockwell Gardens CHA office ...


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