COMMENTARY: Vertical transportation liability

By Michael S. Hohauser Vertical transportation cases can be complex. These matters include elevators, escalators, and lift cases. Knowledge of the background of such cases is critical for the evaluating attorney. Significant issues will include identifying the correct Defendant(s), hiring a qualified expert, and conducting proper discovery. As in all litigation, there are other issues as well. There are two main forms of land based vertical transportation: elevators and escalators. Lifts are a sub-category of elevators. As with all mechanical equipment, there are common situations that can result in injury. When investigating an elevator or escalator injury, maintenance, repairs, and operation must be considered in addition to design and equipment failure. Further, it is critical to understand that there may be more than one entity associated with the failure and resulting injury which should be proper defendants in the case. The building owner or an unrelated entity responsible for the management of the building may bear responsibility. There may also be a specific company associated with maintenance of the elevator or escalator. That maintenance may break down to everyday items and long term items such as inspection or valve replacement among other areas of mechanical defect. Then there will be those who designed and installed the elevator or escalator. The investigating law firm will wish to look at out-side maintenance contractors as well as building employees and/or management employees. With respect to maintenance contractors, the maintenance contract will be relevant to the inquiry. Is it an exclusive maintenance contract? Does the contract speak to regular inspections and maintenance in the given building? Is the elevator or escalator to be kept in "good, working order"? If the contract is not an exclusive one, what are the specific maintenance activities that are called for with regard to the contractor? Is there any relationship between the specific activities called for under the contract in question and a defect which that contractor may have identified that was within the scope of work of a different contractor? In some jurisdictions, that inquiry will not be relevant because there is case law to the effect that the failure of one contractor to determine and report a defect which was properly the responsibility of another contractor is not actionable. That will depend on your jurisdiction. Determining a dangerous condition with regard to the mechanical operation of an elevator or escalator is more complicated than in a general premises situation. The defect may be difficult to determine. This type of investigation and presentation of evidence calls for an expert of long experience and specific education in the vertical liability field. Many jurisdictions allow the establishment of a prima facie case by reference to the doctrine of res judicata. Was the accident likely to occur in the absence of negligence? Was the device that caused the accident in the exclusive control of a defendant? Was the plaintiff free of contributory negligence? With each elevator unit, there will be documentation maintained in the mechanical room where the works of the elevator are housed. That "log" should interface with documentation that may be subpoenaed or requested under the Freedom of Information Act from the inspecting authority through the State as well as documentation in the form of hourly "tickets" or invoices that relate to work performed on the elevator by maintenance staff. All of this documentation must be discovered. There may also be communications (frequently emails) from the customer/possessor/or the person responsible for the elevator to the elevator maintenance contractor. These may include the maintenance log, the work tickets, invoices, and customer communications. This documentation will frequently reveal maintenance failures. After a major incident, there will generally be an inspection. However, that inspection may take place by the personnel of an entity that will be the main defendant. In that case, one can expect the documentation to be somewhat self-serving. Care must be taken to compare the documentation reflecting what went wrong to the documentation that has been maintained with respect to the elevator all along. Where there has been a design failure or a manufacturing failure, this goes beyond documentation to requiring an ability to analyze the components of the unit that failed. This may require metallurgical testing. It may require a knowledge of breaking systems for certain types of elevators. Again, the quality of the expert is foremost in such situations. Vertical transportation cases have been successful in all jurisdictions. Knowing the issues and what to look for is critical with respect to the law firm handling such a matter. If we can assist you with your vertical transportation cases, please do not hesitate to telephone us at Hohauser Kuchon. This is an area in which we have developed considerable knowledge. -------------- Michael S. Hohauser, Principal of Hohauser Kuchon, practices in the areas of personal injury including all forms of automobile negligence, no-fault insurance, truck accidents, bus accidents, motorcycle accidents, birth trauma, dog bite, dramshop, slip and fall, wrongful death, e.coli, food poisoning, and medical malpractice. He is a member of the Oakland County Bar Association, State Bar of Michigan, and the Association of Trial Lawyers of America. Published: Fri, Aug 16, 2013