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Lombardo v. Reliance Elevator Company

June 30, 2000

DOMINIC LOMBARDO,
PLAINTIFF-APPELLANT,
v.
RELIANCE ELEVATOR COMPANY, DEFENDANT-APPELLEE. DOMINIC LOMBARDO, PLAINTIFF-APPELLEE,
v.
RELIANCE ELEVATOR COMPANY, DEFENDANT AND COUNTERDEFENDANT-APPELLEE, (W.S. PARTNERS, DEFENDANT AND COUNTERPLAINTIFF-APPELLANT)



The opinion of the court was delivered by: Justice Mcnulty

Appeal from the Circuit Court of Cook County Honorable Themis Karnezis, Judge Presiding.

Plaintiff, Dominic Lombardo, suffered injuries when the lift he was riding suddenly fell. A jury rejected the claim against the party who maintained the lift, but found the building's owner liable. The building owner and plaintiff filed separate appeals, which we consolidated.

Plaintiff worked in the maintenance department of Avenue National Bank in Oak Park. He had a small office in the basement. When he received an emergency call on November 30, 1994, he took a sidewalk lift to get from the basement to the parking lot. The lift rose to within a foot of sidewalk level, but then it suddenly fell to the basement, bringing plaintiff down with it. Plaintiff sustained severe injuries to both feet.

Oak Park paid Edwin Jacobitz to inspect all the elevators and lifts in the village twice a year. When he inspected the sidewalk lift in October 1993, he wrote in his remarks:

"Replace hoist cable, very rusty and dry. *** Have this done by Nov. 1 1993."

Oak Park mailed to the bank a copy of Jacobitz' report. When Jacobitz next inspected the lift in February 1994, he made no remarks.

After Jacobitz retired, Oak Park contracted with Elevator Inspection Service (EIS) for the inspections. Thomas Bush, an employee of EIS, noted no problems with the lift when he inspected it in August 1994.

The bank paid Reliance Elevator Company to examine and oil the lift once every three months. On November 11, 1994, Reliance performed its regular maintenance and inspection, noting no problems with the lift.

Plaintiff sued Reliance for negligent maintenance, and he sued EIS and Jacobitz for negligent inspections. He also sued W.S. Partners (WS), the beneficiary of the trust which held title to the building, claiming WS had a duty to maintain the lift in safe condition. WS counterclaimed against the three other defendants. Reliance filed a third-party claim for contribution against the bank. WS, Reliance, and the bank all admitted that they did not replace the cable between October 1993, when Jacobitz found it defective, and plaintiff's accident in November 1994. Jacobitz, EIS, and the bank reached settlements with plaintiff. Reliance and WS agreed that the jury's apportionment of responsibility on trial of the complaint would govern the apportionment of liability for purposes of the counterclaim.

The court denied most of the numerous motions in limine the parties presented.

At trial plaintiff admitted that the lift had a "no passengers" sign. He rode the lift perhaps two or three times a year. No one told him not to ride the lift, and he never asked why it had the sign.

One of plaintiff's co-workers testified that as part of his work he periodically needed to take a quantity of plastic containers out of the bank. He would put them on a cart, push the cart onto the sidewalk lift, and then he would ride the lift with the cart to the sidewalk. He said he had to ride the lift because the lift had no walls, rails, or anything to tie down the cart. The cart could roll on the lift, and if it rolled to the side, it could obstruct the lift, damaging it. Once the cart reached the sidewalk, someone in the basement needed to run the lift to bring it back down. The only control panel was in the basement, near the lift. He could operate the controls easily while standing on the lift.

Plaintiff's supervisor, in charge of building maintenance, testified that the letter from Oak Park regarding the sidewalk lift should have come to his attention. He did not remember ever seeing the letter. As far as he knew, no one ever replaced the cable.

The president of Reliance admitted that the contract with the bank required Reliance to inspect the lift's cables. Plaintiff presented as an exhibit an enlarged copy of part of the contract, and the president read into evidence the paragraph stating its duties under the contract. No party questioned the president about any other part of the contract. The lift had a "no passengers" sign because the lift's design made it dangerous to ride.

A former Reliance employee swore that the person performing maintenance on the lift should lubricate the cables periodically. He said that operators could ride on the sidewalk lift even though passengers should not.

Woodrow Nelson, a mechanical engineer, testified that he inspected the sidewalk lift after the accident. He showed the jury photographs of the frayed end of the broken cable, pointing out that it was extremely dry at the break. He found that the most readily accessible portions of the cable had been lubricated, but the portion which failed showed no signs of lubrication. In his opinion, the cable failed due to lack of proper maintenance. While parts of the cable had been recently lubricated, the part that failed had not been lubricated for several years.

Bush, who inspected the lift for EIS before the accident, testified that he worked with elevator maintenance for 50 years. The lift had a design that made it too dangerous for riders. After he inspected the cable he concluded that the lift's platform encountered an obstruction as it rose, and when the motor kept pulling the cable, the cable simply snapped. The condition of the equipment had no bearing on the failure.

On cross-examination, Bush conceded that he did not consider himself an expert. He was not an engineer and he had no training in physics after high school. He did not examine the cable in any detail; he noted only that it had broken. He reviewed no experts' depositions or other evidence. Plaintiff presented him with facts from those depositions, and details concerning the cable, and asked if those facts could affect his opinion about the cause of the break. Bush answered that nothing would affect his opinion in the case. He had no idea what object could have obstructed the lift, and he pointed to no evidence -apart from the broken cable - showing such obstruction. He offered no explanation or support for his opinion that only an obstruction, and not wear, use, or lack of lubrication, could have caused the cable to break.

Richard Gregory, an electrical engineer who specialized in elevators, testified for Reliance that the lift did not qualify as an elevator under applicable standards, because it lacked requisite cables, switches and gates. No person should ride the lift, either as a passenger or as an operator. On cross-examination, and over Reliance's scope objection, Gregory admitted that the broken cable showed signs of deterioration due to lack of lubrication. The court disallowed further questions which, according to plaintiff's offer of proof, would have elicited the opinion that the lack of lubrication contributed to the failure of the cable.

A partner in WS explained that WS entered a financing arrangement with the bank whereby the bank sold its property to WS, then leased the same properties from WS. WS never had possession of the property, as the bank retained full control at all times. The witness admitted that he sat on the bank's board of directors, but neither he nor WS received any notice of the need to replace the cable.

In closing Reliance argued that the cable must have been replaced within a year before the accident. Jacobitz found a dangerously dry cable when he inspected the lift in 1993, but his inspection in 1994 revealed no dangers. Plaintiff argued that the admissions of all responsible parties showed that no one replaced the cable.

Oak Park adopted as its building code the Basic National Building Code recommended by the Building Officials and Code Administrators International, Inc. (the ...


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