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June 17, 1994



McNAMARA, Rakowski, Giannis

The opinion of the court was delivered by: Mcnamara

JUSTICE McNAMARA delivered the opinion of the court:

Plaintiff, Wilburn Martin, brought this negligence action against defendant, Chicago Housing Authority (CHA), to recover for injuries he sustained after falling from an elevator located on CHA property. The jury returned a verdict against the CHA in the amount of $3,059,000, and reduced that amount by 17% to $2,538,970 as a result of plaintiff's comparative negligence. That amount was further reduced by the amount of a settlement reached between plaintiff and his employer, Mid-American Elevator Company, to $2,358,424.43, and judgment was entered on January 27, 1992. The CHA appeals, contending that it owed no duty of care to plaintiff as a matter of law. In addition, it contends that the trial court erred in refusing to give the jury an instruction incorporating the language of section 343 of the Restatement (Second) of Torts.

The relevant facts are as follows. On May 17, 1984, the date of the accident, plaintiff and Daniel Walter were repairing the two elevators situated inside the CHA's mid-rise housing project located at 3833 South Langley in Chicago ("the Langley building"). Plaintiff was employed by Mid-American as an elevator mechanic's helper and Walter as an elevator mechanic. In November 1983, Mid-American had entered into a contract with the CHA to make emergency repairs to various CHA elevators. The contract defined such repairs as "that work necessary only to restore an elevator from a nonoperating condition to an operating condition." No routine inspections or preventive maintenance of the elevators was authorized to be performed by Mid-American employees under the contract. In his capacity as a mechanic's helper for Mid-American, plaintiff was permitted to assist the mechanic in the performance of these emergency repairs only, and pursuant to specific job tickets issued by the CHA for each and every repair.

Plaintiff first began working on elevators in 1979 when he was hired by Otis Elevator Company as a mechanic's helper. While at Otis, plaintiff was regularly paired with a mechanic on repair jobs, and was assigned to work primarily in Chicago housing projects. Plaintiff had never been classified a mechanic, as such a classification required specific training and testing, which plaintiff had never undergone. Through on-the-job experience, however, plaintiff became familiar with many aspects of elevators, including their construction, maintenance and repair.

Plaintiff testified that besides repairing elevators for the CHA, Otis had a separate maintenance arrangement whereby it would routinely inspect and maintain the elevators, replace worn and damaged parts and lubricate components when necessary. After leaving Otis, plaintiff went to work for Westinghouse Elevator Company repairing CHA elevators. As with Otis, Westinghouse also had a separate maintenance arrangement with the CHA.

After leaving Westinghouse, plaintiff began repairing elevators directly for the CHA as part of a new in-house repair program. According to plaintiff, this in-house program was initiated in 1981 and was terminated in November of 1983. Unlike the arrangement with Otis and Westinghouse, the in-house program did not include maintenance of the elevators; the program was limited in scope to the repair of nonoperating elevators. During the two years in which the program was in effect, no routine inspections or maintenance of the elevators were performed by anyone either inside or outside the CHA.

There were two elevators in the Langley building, designated No. 1 and No. 2. Elevator No. 1 stopped at the first floor and each of the odd-numbered floors above it, while Elevator No. 2 stopped at the first floor and each of the even-numbered floors above. There were no doors or doorways permitting access to Elevator No. 1 on the even-numbered floors or to Elevator No. 2 on the odd-numbered floors. The elevators were installed in the 1960s when the building was constructed.

Plaintiff testified that he was constantly repairing the elevators in the Langley building. From mid-February 1984 until May 21, 1984 plaintiff serviced the elevators about 40 times. He recalled that there had been a great deal of corrosion on the top of the elevator from which he fell--Elevator No. 1--owing to the collection of water and moisture there. Plaintiff stated that identical elevators situated in non-CHA buildings would not have had rust on top of them because water would not have been allowed to collect. Nor would these elevators have had open or broken wires, as Elevator No. 1 did, because the wires would have been properly run through steel piping. He would never find broken piping in non-CHA buildings because if the piping broke, it would be immediately repaired. Plaintiff stated that CHA foremen and janitorial staff were aware of the condition of the elevators in the Langley building.

Plaintiff explained how repairmen can operate an elevator from on top of it. He described the inspection switch, stating that when it was in a normal position, persons using the elevator could direct it to specific floors by pushing the call button. In the normal mode, theelevator would run at approximately 100 feet per minute. When the switch was clicked into inspection mode, the elevator would run at about half the normal speed or 50 feet per minute. The inspection mode prevented persons from calling the elevator to a particular floor or from opening the elevator doors. Plaintiff stated that he often rode on top of elevators at normal speed to get from one place to another, but added that it was uncommon to perform inspection work at that speed.

In addition to the inspection switch, there was also a direction switch, which enabled repairmen to direct the elevator up or down from on top of the elevator, and a "red button," which, when pushed, would automatically stop the elevator and prevent the elevator doors from opening or closing. These control buttons, along with the inspection switch, were solely for the safety of the repairmen servicing the elevator.

Plaintiff identified a photograph of the top of Elevator No. 1, and noted that the trough containing the elevator wiring was not in its proper position. The trough was bent when it should have been straight, and had been in that condition since at least 1981. In addition, some of the wiring was out of its protective housing, which increased the risk of the wiring being severed from the switches connected to it and exposed the wiring to water and moisture. The wiring had been in this condition at least since 1981. Plaintiff explained that the wiring provided the power for all of the elevator's functions, and also powered the control switches located on top of the elevator.

Plaintiff also identified in the photograph a build-up of rust on the trough. Plaintiff testified that rust should not be permitted to build up around electrical wiring because the electrical current cannot carry it. On several occasions, plaintiff discovered that the reason an elevator would not function was because a wire had been broken or was so caked with corrosion that the electrical current was unable to pass through to power the elevator.

On the date of the accident, plaintiff arrived at the Langley building and was handed a job ticket which informed him that Elevator No. 1 was "down." Plaintiff recalled that the elevator door was off its track on one of the floors and that the door's safety edge was missing. Plaintiff restored the elevator to service temporarily without installing the safety edge. He did not need to use the control buttons on top of the elevator for this repair; rather, the elevator was moved to the necessary location using the controls in the machine room located above the top floor of the 14-story building. Plaintiff explained that the elevator needed to be placed back in service eventhough it had not been permanently repaired because Elevator No. 2 which was also out of service needed to be repaired.

Plaintiff climbed atop Elevator No. 2 while Walter, who was in the machine room, utilized the controls to run the elevator down to the first floor. While inside the shaft repairing Elevator No. 2, plaintiff noticed that Elevator No. 1 was running sporadically in that it would run for a while and then stop for a prolonged period of time.

When Elevator No. 2 was positioned at just below the first floor for repair, Walter shut off the power to the elevator so that it would not move while plaintiff was repairing it. At this point, plaintiff and Walter could only communicate by calling up and down the shaft. When plaintiff did what he could to fix Elevator No. 2, he waited for Elevator No. 1 to come down to the first floor and stepped onto its top. Plaintiff was going to run the elevator up and check the door locks on one of the middle floors because he had noticed while repairing Elevator No. 2 that it lingered in that vicinity. There were no lights on in the shaft.

While standing on top of Elevator No. 1, plaintiff attempted to activate the inspection switch, which would have allowed him to control the speed and movement of the elevator and prevented passengers both inside and outside the elevator from controlling or directing the elevator's movement. When he hit the inspection switch, the elevator doors closed but instead of the car remaining stationary initially and then ascending at the slower inspection speed, it began to ascend at normal speed. Because the switch did not function properly, plaintiff had no control over the speed or movement of the elevator. Plaintiff hit the "red button" in an effort to stop the car, but that button also was not functioning. At this point, plaintiff was "feeling pretty comfortable, and [was] not scared or anything."

Plaintiff told passengers inside the elevator to get off the car as soon as it stopped because it was running erratically. He wanted to prevent the passengers from being stuck in the car in the event it stopped at a floor with no opening to the hallway. The passengers exited the elevator on the seventh floor. The car then immediately "took off" to the eleventh floor. Plaintiff still had no control over the car. He attempted to communicate with Walter in the machine room to have him put the car in inspection mode. Plaintiff called out, but Walter did not hear him.

When the car got to the eleventh floor, the doors opened and began to close again, but failed to do so completely. Plaintiff stated that this problem was not unusual, but that under normal circumstances he would have had the elevator moving at the inspection speed and been able to position the car exactly where he needed it torepair the doors. Plaintiff, because he was standing on top of the car, was actually at the twelfth floor level and was facing a concrete wall instead of an opening to the hallway since Elevator No. 1 serviced only odd-numbered floors.

Plaintiff explained that until the doors were aligned, neither he nor persons in the hallway could direct the elevator's movement. In an effort to get the elevator to a point of safety, plaintiff leaned over the elevator and attempted to pull on the weight controlling the door operator so that the doors would align and lock and the elevator would move again. Plaintiff had planned to get back to the cables and hold on before the car started to move; under normal circumstances, there would be a few seconds delay after the doors closed before the car would move. In this case, however, when plaintiff let go of the weight, the elevator, rather than slowly accelerating, jerked into full speed movement, throwing plaintiff off balance. Plaintiff's momentum carried him in the direction of the hoist cables, and his arm got caught on an angle iron connected to the side of the shaft. When the car began to move upward, the angle iron, and his arm, failed to move with it. At this point, plaintiff "flipped off the side of the car." Plaintiff's pants leg was caught on the edge of the car top, causing him to be suspended upside down. He began ascending with the elevator, with his body hitting metal brackets along the way. Plaintiff stated, "I decided that if I could get loose, if I can yank my leg or whatever, I was going to go over into the other hatch. I was going to try and get loose and fall in the other hatch. I figured it was better than being decapitated or, you know, chopped in half trying to stick to the side of that car waiting to get up another --."

Plaintiff was successful in getting over to the other hatch. He stated, "then I realized that I was 120 feet in the air, 110 feet in the air. And I thought--my mind--you know, this is all happened in a matter of seconds. So I thinking that when I get over here, I will be safe. But that feeling went away quickly when I didn't never land on anything. * * * I couldn't see anything, but my mind told me to get loose, and everything will be okay." Plaintiff explained that if he had not attempted to get loose, he likely would have been crushed or lost a limb upon Elevator's No. 1's eventual descent.

As plaintiff was falling, he attempted to turn his body around so that he was no longer descending head first. He used one of his arms to hook onto a rail connected to the side of the shaft. In doing so, he broke his hand, wrist, and shoulder. He continued to fall down the shaft, now "behind first," and landed on top of Elevator No. 2. When he tried to move, plaintiff discovered that he had no control of the area below his waist. He also noticed that his arm was broken. Plaintiff was freed from the shaft two and one half hours later. In addition to his broken arm, hand, wrist and shoulder, plaintiff sustained a dislocated right hip and a broken left hip, a fractured pelvis and ankle, and a deep laceration to the chest. Doctor Lawrence Pottenger, plaintiff's treating physician, testified that the injuries to plaintiff's hips and ankle would be permanently disabling, and the pain associated with those injuries would be permanent as well.

Plaintiff stated that the control switches on top of the elevator had worked on prior occasions, and he had no way of knowing they were not going to work for him this time. In order to determine this, he would have had to take the cover off the control panel, get a meter and check all of the wires individually to ensure current was running through them. This sort of inspection was not authorized, however, without a lob ticket. He considered such an inspection to be maintenance, not an "emergency repair." He stated that in downtown buildings, the control switches and wiring were checked constantly. In plaintiff's opinion, had the CHA had a maintenance program in place in 1982, 1983 and 1984, this clearly would have been an item to be inspected and maintained.

On cross-examination, plaintiff acknowledged knowing "the basics" of elevator repair, and stated that he had seen repairs made to car top controls on prior occasions. He also acknowledged working on top of elevators on prior occasions and riding the elevators at normal speed. Plaintiff stated that he did not personally perform the control top repairs. Only a mechanic, with specific knowledge of electricity and electrical wiring, would perform such repairs. As a mechanic's helper, he had never been requested to replace a trough or any of the wiring inside it. According to plaintiff, he "was pretty much nuts and bolts. [He] didn't do any electrical work." On the date of the accident, plaintiff did no electrical wiring or anything having to do with the control switches located on the top of Elevator No. 1.

Plaintiff was familiar with the elevators in the Langley building and knew the risks associated with working on top of them. As a mechanic's helper, he had never seen repair personnel wear a safety belt to perform the sort of repairs he undertook on the date of the accident. Plaintiff stated that it was dangerous to wear a safety belt doing these types of repairs because if a repairman did fall, it would be unsafe for him to be dangling from the belt with live elevators operating. Plaintiff stated that there was an escape hatch on top of the elevator, but he could not open it from the outside as it was bolted shut from the inside.

Virgil Cross testified for plaintiff that he worked for the CHA in a variety of capacities, and for many years was the CHA's assistantmaintenance superintendent. Cross was familiar with the Langley building, having worked there at one time for the CHA. Cross confirmed that beginning in 1966, the CHA entered into contracts with Otis and then with Westinghouse to not only repair the elevators in the Langley building but to maintain them as well. Under these contracts, the companies were responsible for making regularly-scheduled inspections of the elevators, replacing worn parts and oiling and greasing various elevator components on a routine basis.

The contract with Otis expired in 1980, at which time Westinghouse began servicing the CHA. Cross could not recall how long Westinghouse's contract was in effect. He stated that there had been a gap in time from when Westinghouse's contract ended and Mid-American's contract began, but he denied that during this gap the CHA had initiated its own in-house repair program.

Cross confirmed that in November 1983, the CHA entered into the contract with Mid-American to make emergency repairs to its elevators, and acknowledged that unlike the prior contracts with Otis and Westinghouse, no preventive maintenance or routine inspections were called for under the contract. Mid-American was authorized to perform only that work necessary to restore an elevator from a nonoperating to an operating condition. Cross testified as to the significant ...

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