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Ludgin v. John Hancock Mut. Life Ins. Co.

OPINION FILED JUNE 30, 1986.

ELSA LUDGIN, PLAINTIFF-APPELLEE,

v.

JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY ET AL., DEFENDANTS-APPELLANTS.



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

JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.

Rehearing denied July 22, 1986.

Plaintiff sued defendants John Hancock Mutual Life Insurance Company (Hancock) and Otis Elevator Company (Otis) under negligence and re ipsa loquitur theories after she was injured while riding an escalator in the John Hancock building in Chicago. Defendant Hancock filed contribution and breach-of-contract claims against defendant Otis. A jury found against both defendants, allocating 50% fault to each, and awarding plaintiff $18,750. The trial court entered a directed verdict in favor of Otis on Hancock's counterclaims. Defendants appeal from the trial court's order entering judgment and from its denial of their post-trial motions. Hancock also appeals from the trial court's disposition of Hancock's counterclaims against Otis.

On November 12, 1981, at 4 p.m., plaintiff, Elsa Ludgin, an 89-year-old tenant of the John Hancock building, finished shopping in a store on the lower level of the building and approached an up escalator. She testified that she stepped onto the escalator and put her hand on the right handrail. The steps were moving but the handrail was not. She was thrown back, and sustained a fractured left clavicle and bruises and contusions to her head and left side of her body. Ms. Ludgin testified that she still has pain in her left side and arm.

Dr. Jerome Strauss, her physician, testified that on November 13, 1981, he had plaintiff admitted to the hospital for five days for treatment of the injuries. She was readmitted two weeks later for unrelated reasons, although an orthopedist treated her during this second hospitalization for the injury suffered in the fall. Dr. Strauss opined that plaintiff was now unable to raise her arm above a certain level and was unable to lift anything.

Richard Gregory testified as plaintiff's expert witness. He stated possible causes for the escalator's malfunction were too much or too little tension, a handrail coming off the handrail guide, or drive-mechanism breakage. In this incident the handrail stopped moving because it was off the handrail guide. He noted that a few months prior to plaintiff's accident the left handrail of the escalator had been replaced. If the rails were equally worn, wear might have been part of the reason the right handrail was off. A person can remove a handrail with some ingenuity and strength, but it requires a sharp force. He had no opinion about the adequacy of the maintenance of either the handrail or the handrail-tension system at the time of this occurrence; however, monthly testing by having the rail pull up a 175 to 180-pound person is adequate.

Clarence Green was called as an adverse witness by Otis. He testified that he was employed by Sudler & Company, the managing agent for Hancock, to monitor the escalator and elevator systems in the building. The engineering department of the building turns the escalators on and off, and decides when the escalators run. Green contacts Otis, which maintains a repairman in the building, for any problems or malfunctions of the escalators. At approximately 4 p.m. on the day plaintiff fell, he rode the escalator, realized the handrail was not moving, and pressed the emergency stop when he reached the first floor. He called Otis and then attended to plaintiff.

Donald Swenson testified that he was an Otis employee at the time of plaintiff's accident, supervising the Otis maintenance people in the Hancock building. Otis' full maintenance contract with Hancock provides for Otis to inspect and service the Hancock building escalators weekly and to replace worn parts, including handrail. Otis maintains and repairs the escalators, but does not operate them. Swenson opined that the handrail had been pulled off the escalator by hand because there was no evidence of wear. Since no smoke was coming from the drive shaft, he believed the handrail had been off the guide not longer than 15 to 20 minutes. He stated that an escalator with a dead handrail is not in a proper and safe operating condition.

Hancock called Mark Stark, an employee of Sudler & Company. Stark testified that Hancock owns the building and has a management contract with Sudler & Company. Sudler employed no one other than Otis to maintain the escalators, but Sudler employees turn the escalators on and off.

John Termini, an Otis mechanic, testified that he services the escalators in the building. He had not worked on the relevant escalator the day before plaintiff fell, had never pulled the right handrail off, had never had a problem involving the right handrail, and had observed no problem when he rode the escalator at 3:30 on the day of the accident. Around 4:30 on that same day, he received a phone call from Green indicating Green had turned the escalator off because of a problem with the handrail. Termini saw the handrail was off and tried to put it back on.

The case went to the jury, who returned a verdict of $18,750 against both defendants and apportioned fault as 50% against each of them. The trial court denied motions for a judgment notwithstanding the verdict by both defendants, but entered a remittitur in the amount of $560 on a room charge plaintiff incurred during her second hospitalization. The trial court entered a directed verdict in favor of Otis on Hancock's counterclaims.

• 1 Defendants initially contend that the trial court's opening remarks prior to conducting voir dire were highly prejudicial and constituted reversible error. However, upon reviewing the voir dire and the record in its entirety, we do not believe that these comments resulted in a denial of a fair trial.

A trial judge must be given wide latitude in the conduct of a trial. (Simmons v. City of Chicago (1983), 118 Ill. App.3d 676, 685, 455 N.E.2d 232.) Comments only result in a denial of a fair trial if they operate to the prejudice of defendants or unduly affect the outcome of the trial. (Babcock v. Chesapeake & Ohio Ry. Co. (1979), 83 Ill. App.3d 919, 923, 404 N.E.2d 265.) While we agree with defendants that the trial judge must be conscious of his dominance and influence in the courtroom (Ryan v. Blakey (1979), 71 Ill. App.3d 339, 351, 389 N.E.2d 604), many of the cases defendants cite as requiring reversal involve improper utilization of witness testimony, contradictory jury instructions, and trial-counsel misconduct. Prejudice must be shown by trial conduct, and may not be presumed or inferred from the subjective views of the judge. (United States v. Bolden (7th Cir. 1965), 355 F.2d 453, 456, cert. denied (1966), 384 U.S. 1012, 16 L.Ed.2d 1018, 88 S.Ct. 1919.) In the case at bar, neither the judge's conduct nor his views unduly affected the outcome of the trial.

• 2 Defendant Hancock next asserts that the court refused to allow it to present its defense that it had no responsibility for maintenance of the escalator or for day-to-day operation of the building. Hancock argues that Otis was an independent contractor, not an employee, and that Hancock had no ...


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