James Raulston v. Montgomery Elevator ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 27, 2002 Session
JAMES MICHAEL RAULSTON v. MONTGOMERY ELEVATOR
COMPANY d/b/a MONTGOMERY KONE, INC. , ET AL.
Appeal from the Circuit Court for Knox County
No. 1-358-99 Dale C. Workman, Judge
FILED SEPTEMBER 30, 2002
No. E2002-00216-COA-R3-CV
This is a negligence action stemming from injuries allegedly sustained by Plaintiff James Michael
Raulston when the elevator in which he was riding allegedly fell approximately five floors and came
to an abrupt stop. Mr. Raulston sued Defendant Montgomery KONE, Inc. (“Montgomery KONE”),
alleging it was negligent in failing to properly maintain the subject elevator in a safe condition.
Montgomery KONE filed a motion for summary judgment, which the Trial Court granted. Mr.
Raulston argues on appeal that the Court’s grant of summary judgment was improper. We find there
are genuine issues of material fact and therefore vacate the judgment of the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated; Cause
Remanded
HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR.
and D. MICHAEL SWINEY, JJ., joined.
Judy Pinkston McCarthy and Dennis McCarthy, Knoxville, for the Appellant, James Michael
Raulston
R. Kim Burnette, Knoxville, for the Appellee, Montgomery KONE, Inc.
OPINION
Mr. Raulston is an employee of the University of Tennessee Medical Center at Knoxville
(“UTMC”). At the time of the accident, he was employed as a transporter and was assigned to
operate an elevator, which was referred to as elevator EP-04. Mr. Raulston alleged that on June 3,
1998, he was operating elevator EP-04 and had gone up to the eighth floor to pick up another UTMC
employee and a stretcher. Mr. Raulston pushed the button for the lobby floor. According to his
affidavit, the following then occurred:
Instead of going to the lobby, however, the elevator stopped on the
seventh floor. I pushed the button for lobby again. The elevator,
without warning, then dropped from the seventh floor to between the
first and second floors. I was standing when the elevator dropped.
Both employees on the elevator allegedly sustained injuries as a result of its fall.
Mr. Raulston filed the instant action against Dover Elevator Company d/b/a Thyssen-Dover
Elevator (“Dover”), the alleged manufacturer of the elevator, and Montgomery KONE, which he
alleged was under contract with UTMC to maintain the elevator. His action against Dover was
subsequently settled and thus Montgomery KONE remains the sole defendant and party to this
appeal.
As noted above, Montgomery KONE moved for summary judgment, which was granted by
the Trial Court. Mr. Raulston appeals, raising issues which we restate and summarize as follows:
1. Whether there exist genuine issues of material fact which render summary judgment
inappropriate.
2. Whether Montgomery KONE was guilty of negligence per se.
Our review of the record leads us to the conclusion that there are issues of material fact which
preclude summary judgment in this case.
In Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000) the Tennessee Supreme
Court stated the following as to the standard of review specifically applicable to summary
judgments:
The standards governing the assessment of evidence in the summary
judgment context are also well established. Courts must view the
evidence in the light most favorable to the nonmoving party and must
also draw all reasonable inferences in the nonmoving party’s favor.
See Robinson v. Omer, 952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d
at 210-11. Courts should grant a summary judgment only when both
the facts and the inferences to be drawn from the facts permit a
reasonable person to reach only one conclusion. See McCall v.
Wilder, 913 S.W.2d 150, 153 (Tenn. 1995); Carvell v. Bottoms, 900
S.W.2d 23, 26 (Tenn. 1995).
It appears from the record that there exists a genuine issue of material fact regarding whether
the elevator at issue actually fell. In support of its motion for summary judgment, Montgomery
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KONE filed the affidavit of Jeff Robbins, the Service Manager for its Knoxville branch office. Mr.
Robbins’ affidavit states the following in relevant part:
KONE has provided maintenance to certain elevator
equipment at the University of Tennessee Medical Center since
approximately June, 1995. One of the elevators included within our
maintenance agreement is an elevator unit designated by UT as EP-
04.
* * *
Following a reported incident at UT Medical Center on June
3, 1998, in which elevator EP-04 was alleged to have dropped several
floors, and then coming to a sudden stop, certain inspections of this
equipment were undertaken.
Immediately following the incident, one of our service
mechanics, Don Grubb, arrived at the scene shortly thereafter. The
car at that time was stopped between floor “2" and “L.” Mechanic
Grubb then went to the mechanical room to lower the elevator car to
the lobby floor level. Prior to doing so, he verified that neither the
governor overspeed switch nor the governor tripping mechanism were
engaged, indicating that the elevator had not been in an overspeed or
freefall condition. After closing the doors to the elevator car, the car
was lowered and the passengers were removed. The unit was
returned to service at that time.
Approximately three hours later, the elevator was shut down at UTMC’s request and a more
thorough inspection took place. Mr. Robbins’ affidavit states that “our inspection revealed no
indication that any overspeed or free fall condition had occurred.”
The record contains a letter from Mr. Robbins to UTMC’s Director of Engineering which
again noted that “the governor overspeed switch was not tripped, indicating the car did not
overspeed.” The letter continues as follows:
I read in one of the accident reports that there was a stretcher on the
car. There is another possibility that should be considered. Could the
stretcher have inadvertently come in contact with the stop switch in
the car operating panel? At this point, considering what we found,
this might be the most likely cause of the elevator stopping.
Montgomery KONE’s Statement of Undisputed Facts, filed pursuant to Tenn. R. Civ. P.
56.03, states that “[t]he inspection and testing process of the subject equipment revealed that there
had been no overspeed or free fall condition that had occurred.” (Emphasis added). This is
obviously a very different factual scenario than that contained in Mr. Raulston’s affidavit. As the
Supreme Court has recently stated, if there is “any doubt whether or not a genuine issue exists,”
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summary judgment should be denied. McCarley v. West Quality Food Service, 960 S.W.2d 585
(Tenn. 1998); Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993).
Montgomery KONE argues on appeal that Mr. Raulston failed to provide evidence of any
causal connection between its actions and the alleged accident. We must respectfully disagree. The
evidence presented, taken in the light most favorable to the non-moving party, suggests that there
were numerous problems with the maintenance of the elevators at UTMC, including the subject
elevator EP-04. Mr. Raulston’s affidavit states that
In March 1997, I was in an elevator, EP-04, located in the East
Pavilion at UTMC. I was assigned to run the elevator. With a
hospital patient on the elevator, the elevator dropped two and one-
half floors. I injured my back and was treated. I returned to work
about three days later.
When I returned to work, I assumed the elevator had been
repaired. My supervisor, Marshall Williams, had written at least one
memorandum complaining about the performance of the elevator, EP-
04.
There is a letter in the record dated March 5, 1998, from Mr. Williams to the Maintenance
Supervisor at UTMC, which states:
Presently there is an issue with the East Pavilion Patient Elevators,
mainly EP-04. It seems they constantly fail to properly line up with
the floor, causing a ½ to 1-inch variance. This makes it very
uncomfortable for a patient to move via a stretcher or bed. Patients
receive quite a jolt when crossing this bump. Also, the actual moving
of patients is very difficult especially by bed or specialty bed, as they
will not roll over the slightest bump. They physically must be lifted
over. This opens the potential for Workman’s Comp injury for the
transporter. I have brought this to the attention of the elevator
maintenance person but the problem isn’t resolved.
In addition, Mr. Raulston stated the following in his affidavit:
As the transporter who operated the elevator, EP-04, I have personal
knowledge that on an ongoing basis the elevator did not level
properly, it had dropped on a prior occasion injuring me, it often
stopped on the wrong level, the door occasionally closed on
passengers, and the doors from time to time failed to open.
In support of his effort to avoid summary judgment, Mr. Raulston submitted the affidavit of
Charles A. Buckman, an expert in the field of vertical transportation and the evaluation of code
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compliance and safe operation of elevators. Mr. Buckman’s affidavit states as follows in relevant
part:
I make this preliminary affidavit to show the Court that there
are genuine issues of material fact concerning the operation,
maintenance, inspection, and servicing of the subject elevator (EP-04)
by all of the defendants in that overspeeding an elevator and having
an elevator perform emergency stops as occurred in this case does not
occur in the absence of negligence.
* * *
Representatives of an elevator consulting firm, Lerch Bates
North America. . .conducted a general inspection of the elevators at
the University of Tennessee Medical Center and reported the results
to the Medical Center on June 17, 1996. On November 18, 1996,
Lerch Bates submitted a follow-up report to its June 17 audit.
(Exhibit C). Lerch Bates noted, “We were disappointed to find that
of the original 281 items only 126 actually had been addressed.” Id.
Some of the uncorrected problems involved safety-related issues. On
June 18, 1997, in a letter to the Medical Center, Lerch Bates noted
that from September 1996 through April of 1997, 281 calls on
elevator problems had been reported, 62 of which involved
entrapment of people on the elevators. (Exhibit D, letter to Harry
Whetsell from Robert Young.) This number of calls did not include
“running on arrival” calls--that is, calls made to KONE after a
malfunctioning elevator was turned off, only to have the elevator
operate normally when KONE arrived and turned the elevator back
on. Id. Lerch Bates noted,
The need for safety sometimes requires the unit be
turned off before it can be thoroughly investigated by
Montgomery but this can sometimes clear a problem
with the elevator when the unit is turned back on.
Having a problem clear itself in this fashion is by no
means a permanent solution to the problem and
possibly more detailed information of the problem
may be required by Montgomery for a thorough
investigation of the suspect unit. The repetitiveness
of the “Running on Arrival” solution on some units
gives us concern of whether the calls are being
thoroughly investigated and corrected. We
recommend Montgomery closely watch for this type
of problem and take positive action to reduce the
number of occurrences.
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Id. Lerch Bates concluded that “the callbacks are still extremely
excessive and we are concerned over the total number of calls as well
as the repetition of the “Running on Arrival” solutions.” Id.
The typical number of trouble calls to be expected annually is
six calls per elevator. The University of Tennessee Medical Center
has 35 units, some of which are dumbwaiters. Based on my review
of the documents that I examined, I discovered that during the year
beginning April 1, 1996, there were 562 trouble calls, 136 of which
were entrapments. This means there was an average of 16 calls per
unit or 2.6 times the national average. On average, each elevator
experienced a trouble call every 23 days, with an entrapment once
each quarter. This unconscionable record, which was of such concern
to Lerch Bates, could only be achieved through KONE’s negligence.
It clearly demonstrates the negligent maintenance experienced by the
University of Tennessee Medical Center.
The level of poor maintenance and need for repair that Lerch
Bates indicated in Exhibits C-D does not meet the industry standard
of care and demonstrates gross negligence on the part of KONE,
which was responsible for the proper maintenance and repair of the
elevators under the maintenance contract provided in Exhibit B.
Based on the foregoing factual information, I conclude, albeit
preliminarily, that several defective or dangerous conditions existed
in EP-04 that would not be present in the absence of negligence.
Descriptive terms such as “falling,” “bouncing,” “not leveling,” and
“sticking between floors” made by witnesses as well as the oft-
repeated stranding of passengers in stalled elevators are clear
indicators of problems with elevators.
Taking the above evidence in the record in the light most favorable to Mr. Raulston, as we
must under our summary judgment standard, we find that it provides a basis from which a trier of
fact could reasonably conclude that the proximate cause of the accident, and Mr. Raulston’s injury,
was the negligent maintenance of the elevator at issue. Generally speaking, issues of causation in
negligence cases are for the trier of fact to decide. “Such issues can only be decided by the court in
cases where inferences from uncontroverted facts are so certain that all reasonable men in the
exercise of free and impartial judgment must agree upon them.” Brookins v. The Round Table, Inc.,
624 S.W.2d 547 (Tenn. 1981).
We next address Mr. Raulston’s argument that Montgomery KONE was guilty of negligence
per se. In support of this argument, he points to the following portion of Mr. Buckman’s affidavit:
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Under ASME A17.1 Rule 1002.3,1 the maintenance contractor was
required to perform an inspection every five years, including a “safely
lower, hold and stop test” with 125 percent of its rated load. . . .The
purpose of the test is to prevent accidents to individuals riding on the
elevator. I inspected all maintenance records for Elevator EP-04 and
the other elevators at the University of Tennessee Medical Center,
however, and failed to uncover any evidence to show that the required
test was performed during the period in which Dover Elevator
Company, the prior contractor, had the maintenance contract, and
KONE did not perform the test until after the Plaintiff’s accident and
more than three years after KONE had entered the maintenance
contract with the University of Tennessee Medical Center.
In the case of Smith v. Owen, 841 S.W.2d 828, 831 (Tenn.Ct App. 1992) the court succinctly
set forth the three elements of a negligence per se claim:
The doctrine of negligence per se is firmly established in our case
law. In order to recover on the basis of negligence per se, three
elements must be established. First, it must be shown that the
defendant violated a statute or ordinance which "imposes a duty or
prohibits an act for the benefit of a person or the public." Nevill v.
City of Tullahoma, 756 S.W.2d 226, 232-233 (Tenn.1988). Second,
the proof must show that the injured party was within the class of
persons whom the legislative body intended to benefit and protect by
the enactment of that particular statute or ordinance. Traylor v.
Coburn, 597 S.W.2d 319, 322 (Tenn.App.1980). In addition to
establishing negligence per se by showing these two elements, the
plaintiff must of course show that such negligence was the proximate
cause of the injury. Brookins v. The Round Table, 624 S.W.2d 547,
550 (Tenn.1981); Alex v. Armstrong, 215 Tenn. 276, 283, 385
S.W.2d 110, 114 (1964).
(Internal citations omitted.) In the present case, Mr. Raulston has not alleged that Montgomery
KONE violated any statute or ordinance, nor has he provided in the record a copy of the ASME
A17.1 Rule 1002.3 cited by Mr. Buckman’s affidavit. The proof presented by Mr. Raulston does
not meet the required showing for the first element of a negligence per se claim.
Montgomery KONE argues that Mr. Raulston’s appeal should be dismissed because of
failure to follow the requirements of Tenn. R. App. P. 24(b), with respect to the filing of the
transcript of the summary judgment motion hearing. Tenn. R. App. P. 24(b) provides that “unless
1
The cited rule refers to the Elevator Safety Code, as approved by the American Society of Mechanical
Engineers.
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the entire transcript is to be included, the appellant shall, within 15 days after filing the notice of
appeal, file with the clerk of the trial court and serve on the appellee a description of the parts of the
transcript the appellant intends to include in the record, accompanied by a short and plain declaration
of the issues the appellant intends to present on appeal.” Montgomery KONE asserts that it was not
notified within 15 days that Mr. Raulston did not intend to include a copy of the summary judgment
motion hearing transcript in his designation of the record.
Mr. Raulston argues that the failure to notify Montgomery KONE was an inadvertent
omission which in no way prejudiced a defense upon the merits. Upon learning that Mr. Raulston
did not intend to file the transcript, Montgomery KONE filed a motion styled “Designation of
Additional Portions of Transcript Pursuant to T.R.A.P. 24(b).” Montgomery KONE did not file a
motion to dismiss as authorized by Tenn. R. App. P. 26(b). Exercising our discretion, we decline
to dismiss this appeal.
For the foregoing reasons the judgment of the Trial Court is vacated and the cause remanded
for proceedings not inconsistent with this opinion. Costs of appeal are adjudged against the appellee,
Montgomery KONE.
_________________________________________
HOUSTON M. GODDARD, PRESIDING JUDGE
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