Appeal from the Circuit Court of Cook County; the Hon. Irving
R. Norman, Judge, presiding.
JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 16, 1986.
Plaintiff, Booker Daniels, Jr., brought a two-count action against defendants, Otis Elevator Company (Otis) and Standard Oil Realty Corporation (Standard Realty) for personal injuries sustained in an elevator accident. The elevator was manufactured, installed and maintained by Otis and owned by Standard Realty. Count I of plaintiff's complaint alleged specific negligence and count II was based on res ipsa loquitur. At trial, following the close of evidence, the court granted a directed verdict in favor of defendant Standard Realty on the negligence count only. The jury returned a verdict of $770,000.15 for plaintiff with a 10% reduction for plaintiff's comparative negligence, resulting in a final award of $693,000.14. Defendants appeal, contending that (1) the plaintiff failed to establish a prima facie negligence case against defendants; (2) evidentiary errors merit a new trial; (3) the jury award was excessive; and (4) the jury verdict was against the manifest weight of the evidence.
At trial, plaintiff testified that on the morning of March 22, 1977, he was en route to his employment as an accounting clerk for the Standard Oil Company. As he was exiting an elevator on the 35th floor of the Standard Oil Building in Chicago, the elevator bounced, dropping 10 or 12 inches below floor level. As the elevator returned to floor level, plaintiff's foot became trapped and compressed in the space between the elevator floor and the 35th floor. As plaintiff freed himself from the elevator, he twisted his foot and fell onto the hallway floor. Following the accident, plaintiff went to his company's physician, Dr. Kalacic. Dr. Kalacic examined plaintiff's foot and ankle and had X rays taken. Following the examination, plaintiff went home for the day. During the next several days, the swelling and pain of plaintiff's foot increased. His toes began to spread, his foot was losing color and it was beginning to turn inward. Dr. Kalacic referred plaintiff to a second physician, Dr. Milgram. Dr. Milgram diagnosed plaintiff's injury as Sudeck's Atrophy, a condition similar to a nerve paralysis, and removed a ganglion from plaintiff's ankle. Following this procedure, plaintiff's foot became infected and he sought treatment from an orthopedic surgeon, Dr. Donald Miller.
Dr. Miller testified that he hospitalized plaintiff and operated on the foot to attempt to reduce spasms. He then placed the foot in a cast for four weeks. After he removed the cast, he prescribed a brace for plaintiff to help turn the foot outward. Dr. Miller also prescribed a program of physical therapy at the hospital and at home. Plaintiff made little progress at therapy because of the resulting pain he experienced. Dr. Miller stated that plaintiff would probably have to wear the brace permanently and expressed doubt as to whether plaintiff could return to work as an accountant.
Dr. Carlos Scuderi, another orthopedic surgeon, testified that he also treated plaintiff. He hospitalized plaintiff to perform a tendon transplant on the injured foot. While the plaintiff was under anesthesia, Dr. Scuderi found that the inverted foot moved into a normal position. Thereafter, Dr. Scuderi diagnosed plaintiff's problem as psychological and cancelled the surgery. He advised the plaintiff to undergo psychotherapy treatments. He believed that plaintiff's pain was very real to him and that it resulted from the injury he sustained in the elevator accident. It was his opinion that plaintiff's foot was permanently impaired.
Dr. Harold Spies, the associate medical director of plaintiff's employer, Standard Oil Company, testified as to plaintiff's ability to return to work. Dr. Max Goldschmidt had examined plaintiff pursuant to Dr. Spies' request. Following this examination, Dr. Goldschmidt submitted a report to Dr. Spies wherein he diagnosed plaintiff's condition as inversion deformity of the left ankle and foot secondary to trauma. This condition would require the plaintiff to utilize a brace and two crutches. On the basis of this report. Dr. Spies determined that plaintiff was disabled and could not perform his job.
Charles Kowalewicz, an elevator maintenance mechanic, testified as an expert witness for plaintiff. In his opinion, the elevator fell below floor level because of a power surge caused by a dirty gear. The problem could have been prevented by oiling or lubricating the elevator brake on a monthly basis. Kowalewicz further testified that the elevator was improperly installed in that the clearance between the elevator sill and the floor sill was greater than the building code required. On cross-examination, Kowalewicz stated that the failure of the elevator brake to function properly could have been caused by airborne dirt and that it is not possible to prevent airborne dirt by maintenance.
James Hayes, a maintenance mechanic for Otis, testified that he performed preventative maintenance work on the elevators in the Standard Oil building. Written maintenance charts were maintained for each of the 43 elevators in the building pursuant to a contract between Otis and Standard Realty. Each elevator had its own maintenance schedule which delineated weekly, monthly, semiannual and annual maintenance tasks. The brake which holds the elevator in place is inspected and lubricated once a year. The chart for 1977, the year of this accident, was no longer in existence since they were routinely destroyed after a period of time.
Defendants initially contend that the trial court erred in denying their motion for a directed verdict and motion for judgment notwithstanding the verdict because the plaintiff failed to prove a prima facie negligence case. At the close of the evidence, the court directed a verdict in favor of Standard Realty on the specific negligence count since plaintiff could not prove Standard Realty had notice of a defect in the elevator. Subsequently, the case was submitted to the jury on theories of both specific negligence and res ipsa loquitur against Otis and only on res ispa loquitur against Standard Realty. Defendant Otis maintains that the evidence in the record failed to support a finding of specific negligence showing that it was negligent in the maintenance, repair, operation, or installation of the elevator in which plaintiff was injured.
• 1 Verdicts ought to be directed and judgments notwithstanding the verdict entered only in those cases in which all of the evidence, when viewed in an aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) Proof of negligence requires that the plaintiff establish that the defendants' conduct breached a duty to plaintiff and proximately caused his injuries. (Smith v. General Paving Co. (1978), 58 Ill. App.3d 336, 374 N.E.2d 1134.) By contract and at common law, Otis' undertaking was to maintain the elevators in a proper and safe operating condition. Whether Otis exercised such care was a factual question that was preeminently within the province of the jury to determine. Jardin v. Rubloff (1978), 73 Ill.2d 31, 382 N.E.2d 232.
• 2 In the case at bar, plaintiff's expert, Kowalewicz, testified that in his opinion the accident was caused by the failure of the brake to set properly. He stated that this condition could have been prevented by oiling or lubricating the brake on a monthly basis. Otis' own expert, Hayes, testified that the elevator brake was greased only once a year. Kowalewicz also testified that the elevator was improperly installed in that the clearance between the car and the floor was in excess of the clearance allowed by the applicable building code. While Kowalewicz did state that a power surge due to airborne dust might have been the cause of the accident, he repeatedly expressed his opinion that the cause of the accident was from the failure of the brake to set properly. Our review of this evidence, in its aspect most favorable to plaintiff, does not permit us to conclude that it so overwhelmingly favors Otis that no contrary verdict could stand.
• 3, 4 Defendants further argue that plaintiff produced insufficient evidence against both defendants to establish the requisite elements of res ipsa loquitur. To establish the requisite elements of res ...