An Overview of Elevator and Escalator Liability

The law in New York is that a building owner has a non-delegable duty to maintain his building in a safe condition. This duty extends to elevators and escalators within the building and on the premises. While the common law extends this duty to all building owners, New York Multiple Dwelling Law ' 78 has codified this obligation with respect to multiple dwelling buildings.

Maintenance contractors, on the other hand, may or may not bear liability for elevator or escalator mishaps. The key factor in determining whether a maintenance contractor is exposed to any liability is the agreement between the contractor and the building owner. In order to be subject to liability for elevator or escalator failures or malfunctions, a maintenance contractor must have entered into an exclusive maintenance contract. Rogers v. Dorchester, 32 N.Y.2d 553 (1973). Specifically, if a contractor agrees to inspect regularly and maintain all elevators in a given building in good working order, then it can be held liable
to passengers on the elevator for injuries sustained due to faulty maintenance.

Even in the absence of an exclusive maintenance contract, a contractor may be held liable to a plaintiff if he undertakes to perform a specific maintenance task and his negligence in performing the repair causes injury to the passenger. On the other hand, New York courts have specifically held that a maintenance contractor without an exclusive agreement cannot be held liable for failing to identify other potential problems while performing a specific repair. McMurray v. P.S. Elevator, Inc., 224 A.D.2d 668 (2d Dept. 1996).

Res Ipsa Loquitur

Generally speaking, a negligence case involving an elevator or an escalator is similar in nature to any premises liability case. A plaintiff is required to prove that the defendant or defendants had a duty to provide a safe elevator or escalator, that they unreasonably failed to maintain or repair the equipment despite notice of a dangerous or defective condition, and that the defective condition was the cause of the accident.

However, unlike a typical premises liability case, the “dangerous condition” may be a latent defect in the mechanical elements of the escalator in question. Given that the operation of elevators and escalators is not common knowledge to the average juror, expert testimony is critical to the prosecution or defense of these types of cases. A typical expert in an elevator-related case would be a mechanical engineer to discuss the likely cause of the malfunction of the elevator at issue.

In the absence of an expert to establish a prima facie case, New York law permits a plaintiff to rely upon the doctrine of res ipsa loquitur in certain instances to avoid the need for an expert. In order to utilize the res ipsa doctrine, a plaintiff must prove that the accident is not likely to have occurred in the absence of negligence, that the instrumentality of the accident was in the exclusive control of the defendant and that the plaintiff himself is free from contributory negligence. Miller v. Schindler Elevator Corp., 308 A.D.2d 312 (1st Dept. 2003).

Res ipsa is routinely invoked during the course of elevator and escalator litigation, particularly since the operation of these devices is outside the control of the plaintiff and very often involves no contributory negligence. As such, plaintiffs have obtained res ipsa charges in a wide variety of cases, including those involving accidents arising out of elevator malfunctions, such as the sudden unexpected movement or the sudden drop of elevator cars, and cases in which the door of the car does not stop at a level height with the floor of the building.

In each of these different types of elevator malfunctions, the trial court has been convinced that the particular malfunction would not have occurred but for the negligence of either the building owner or its maintenance provider. This res ipsa charge then entitles the plaintiff to a permissible inference of negligence, without the obligation to present any additional evidence to the jury.

Defense counsel faced with a res ipsa argument should focus on the elements of exclusive control and, in some cases, the plaintiff's potential contributory negligence to counter the request for a res ipsa charge.

Labor Law Section 241-a

In addition to the non-delegable duty of building owners discussed above, construction workers are afforded specific protection against elevator-related casualties by Labor Law ' 241-a, which provides that people working in elevator shaftways in buildings in the course of construction or demolition must be protected by planking at least two inches thick laid across the opening at intervals of not more than two stories above and one story below the worker. This section creates a private right of action for workers injured in violation of the safety standards contained in the statute, and courts have held that this duty, like others enumerated in the Labor Law, is non-delegable and applies to contractors as well as owners.

With respect to claims involving ' 241-a, it is important to note that the statute itself is applicable only to buildings in the course of construction or demolition, and only provides protection for construction workers in elevator shaftways.

When a plaintiff demonstrates that he is entitled to the protection of ' 241-a in that he was an employee of a building in the course of construction and demolition and was injured as a result of a fall in an elevator shaftway that was not properly protected, the available defenses for an owner or general contractor are extremely limited in scope. Just as in cases involving gravity-related risks under Labor Law 240(1), a violation of 241-a imposes absolute liability on the defendants. Duncan v. Twin Leasing Corp., 131 N.Y.S.2d 423. Put another way, contributory negligence is not a defense to a claim under ' 241-a, nor is it a consideration when determining liability. Koploff v. St. Vincent Ferrer Church, 331 N.Y.S.2d 719.

With respect to building owners, then, a written contract with a well-drafted indemnification clause is essential when retaining a contractor to perform any such elevator work. While owners owe a non-delegable duty to workers on their premises under ' 241-a, the law does not preclude them from obtaining contractual indemnification from its contractors for any vicarious liability incurred as a result of the acts or omissions of its contractors. However, recovery over against a contractor for liability under ' 241-a does require a building owner to demonstrate that he did not control or direct the work being performed, and that the contractor was negligent in some manner. Canka v. Coalition for the Homeless, 657 N.Y.S.2d 779.

Contributory Negligence

While plaintiffs in elevator and escalator cases frequently attempt to avail themselves of the res ipsa doctrine to establish a liability case, defendants should be keenly aware of the possibility that the plaintiff arguably caused or contributed to his accident.

In particular, New York courts have held that cases involving claims of faulty or defective elevator doors involve some degree of operation by the plaintiff and thus do not lend themselves to res ipsa charges. See, e.g., Feblot v. New York Times Co., 32 N.Y.2d 486. In many cases involving a passenger being struck by a closing elevator door, evidence suggesting that the passenger was distracted in some manner prior to entering the elevator or was rushing to attempt to board the elevator as the doors were closing raises sufficient questions of contributory negligence to preclude a charge.

Defense counsel should also be alert to the possibility that the plaintiff was the actual cause of his injuries, even while riding in an elevator that malfunctioned in some way. Put another way, the mere fact that an elevator malfunctioned and a passenger was injured does not give rise to liability without a causal link between the malfunction and the injury.

For example, in Egan v. A.J. Construction Corporation, 94 N.Y.2d 839, the plaintiff was a passenger in an elevator that stalled six feet above the lobby floor of a building, but was unharmed from the stalling of the elevator. The doors of the elevator were subsequently opened, and the plaintiff jumped from the car of the elevator to the lobby floor, injuring his back. New York's highest court, the Court of Appeals, held that the plaintiff, under these circumstances, was not entitled to recover from the building owner or any maintenance contractor because the cause of his injuries was not the dangerous or malfunctioning elevator, but the act of jumping from the elevator without immediate threat of danger. In light of that determination, the complaint was dismissed in its entirety.

Finally, with respect to the often-encountered circumstance of a stopped escalator, New York courts have repeatedly held that it should be considered a stationary staircase for purposes of liability analysis, rather than defective equipment. Adamo v. National Railroad Passenger Corp., 897 N.Y.S.2d 85 (2010). The court in Adamo held that
the plaintiff had chosen to ascend the stopped escalator and could point to no specific dangerous or defective condition posed by the escalator that caused her to fall. Thus, the court dismissed the complaint with respect to all defendants, since the height differentials between the steps of the escalator were readily apparent, and there was no evidence of any other cause of the plaintiff's accident.

Conclusion

Given the complex nature of elevators and escalators, and the various ways in which a passenger on either device may be injured, counsel that litigate cases involving either type of equipment should be prepared to deal with issues regarding contractual relationships among various possible defendants as well as issues of res ipsa loquitur in lieu of specific evidence of defective equipment and plaintiff's negligent conduct as the cause or contributing factor of the accident.

Brian P. Heermance is a partner and Kevin A. Hickman is an associate in the New York office of Morrison Mahoney LLP. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

Like the inhabitants of many cities in the U.S., New Yorkers rely upon elevators and escalators as a routine part of everyday life in high-rise office and apartment buildings. So, it is easy to lose sight of the fact that elevators and escalators are complex machines that are capable of a variety of mechanical errors and failures resulting in significant injuries. This article examines the basic considerations and issues that arise in litigation involving injuries sustained while using elevators and escalators in New York State. Attorneys in other states should review their own states' considerations, which may be very similar.

Proper Defendants

The first consideration in any case involving elevator- or escalator-related accidents is which entities can be held liable for the alleged accident. Given that elevators and escalators are complex pieces of equipment, maintenance and repairs are almost always performed by outside maintenance contractors rather than building employees. Under certain circumstances, liability may rest with both the building owner and the maintenance company, but in other instances, only the building owner would potentially be exposed to liability.

The law in New York is that a building owner has a non-delegable duty to maintain his building in a safe condition. This duty extends to elevators and escalators within the building and on the premises. While the common law extends this duty to all building owners, New York Multiple Dwelling Law ' 78 has codified this obligation with respect to multiple dwelling buildings.

Maintenance contractors, on the other hand, may or may not bear liability for elevator or escalator mishaps. The key factor in determining whether a maintenance contractor is exposed to any liability is the agreement between the contractor and the building owner. In order to be subject to liability for elevator or escalator failures or malfunctions, a maintenance contractor must have entered into an exclusive maintenance contract. Rogers v. Dorchester , 32 N.Y.2d 553 (1973). Specifically, if a contractor agrees to inspect regularly and maintain all elevators in a given building in good working order, then it can be held liable
to passengers on the elevator for injuries sustained due to faulty maintenance.

Even in the absence of an exclusive maintenance contract, a contractor may be held liable to a plaintiff if he undertakes to perform a specific maintenance task and his negligence in performing the repair causes injury to the passenger. On the other hand, New York courts have specifically held that a maintenance contractor without an exclusive agreement cannot be held liable for failing to identify other potential problems while performing a specific repair. McMurray v. P.S. Elevator, Inc. , 224 A.D.2d 668 (2d Dept. 1996).

Res Ipsa Loquitur

Generally speaking, a negligence case involving an elevator or an escalator is similar in nature to any premises liability case. A plaintiff is required to prove that the defendant or defendants had a duty to provide a safe elevator or escalator, that they unreasonably failed to maintain or repair the equipment despite notice of a dangerous or defective condition, and that the defective condition was the cause of the accident.

However, unlike a typical premises liability case, the “dangerous condition” may be a latent defect in the mechanical elements of the escalator in question. Given that the operation of elevators and escalators is not common knowledge to the average juror, expert testimony is critical to the prosecution or defense of these types of cases. A typical expert in an elevator-related case would be a mechanical engineer to discuss the likely cause of the malfunction of the elevator at issue.

In the absence of an expert to establish a prima facie case, New York law permits a plaintiff to rely upon the doctrine of res ipsa loquitur in certain instances to avoid the need for an expert. In order to utilize the res ipsa doctrine, a plaintiff must prove that the accident is not likely to have occurred in the absence of negligence, that the instrumentality of the accident was in the exclusive control of the defendant and that the plaintiff himself is free from contributory negligence. Miller v. Schindler Elevator Corp. , 308 A.D.2d 312 (1st Dept. 2003).

Res ipsa is routinely invoked during the course of elevator and escalator litigation, particularly since the operation of these devices is outside the control of the plaintiff and very often involves no contributory negligence. As such, plaintiffs have obtained res ipsa charges in a wide variety of cases, including those involving accidents arising out of elevator malfunctions, such as the sudden unexpected movement or the sudden drop of elevator cars, and cases in which the door of the car does not stop at a level height with the floor of the building.

In each of these different types of elevator malfunctions, the trial court has been convinced that the particular malfunction would not have occurred but for the negligence of either the building owner or its maintenance provider. This res ipsa charge then entitles the plaintiff to a permissible inference of negligence, without the obligation to present any additional evidence to the jury.

Defense counsel faced with a res ipsa argument should focus on the elements of exclusive control and, in some cases, the plaintiff's potential contributory negligence to counter the request for a res ipsa charge.

Labor Law Section 241-a

In addition to the non-delegable duty of building owners discussed above, construction workers are afforded specific protection against elevator-related casualties by Labor Law ' 241-a, which provides that people working in elevator shaftways in buildings in the course of construction or demolition must be protected by planking at least two inches thick laid across the opening at intervals of not more than two stories above and one story below the worker. This section creates a private right of action for workers injured in violation of the safety standards contained in the statute, and courts have held that this duty, like others enumerated in the Labor Law, is non-delegable and applies to contractors as well as owners.

With respect to claims involving ' 241-a, it is important to note that the statute itself is applicable only to buildings in the course of construction or demolition, and only provides protection for construction workers in elevator shaftways.

When a plaintiff demonstrates that he is entitled to the protection of ' 241-a in that he was an employee of a building in the course of construction and demolition and was injured as a result of a fall in an elevator shaftway that was not properly protected, the available defenses for an owner or general contractor are extremely limited in scope. Just as in cases involving gravity-related risks under Labor Law 240(1), a violation of 241-a imposes absolute liability on the defendants. Duncan v. Twin Leasing Corp. , 131 N.Y.S.2d 423. Put another way, contributory negligence is not a defense to a claim under ' 241-a, nor is it a consideration when determining liability. Koploff v. St. Vincent Ferrer Church , 331 N.Y.S.2d 719.

With respect to building owners, then, a written contract with a well-drafted indemnification clause is essential when retaining a contractor to perform any such elevator work. While owners owe a non-delegable duty to workers on their premises under ' 241-a, the law does not preclude them from obtaining contractual indemnification from its contractors for any vicarious liability incurred as a result of the acts or omissions of its contractors. However, recovery over against a contractor for liability under ' 241-a does require a building owner to demonstrate that he did not control or direct the work being performed, and that the contractor was negligent in some manner. Canka v. Coalition for the Homeless , 657 N.Y.S.2d 779.

Contributory Negligence

While plaintiffs in elevator and escalator cases frequently attempt to avail themselves of the res ipsa doctrine to establish a liability case, defendants should be keenly aware of the possibility that the plaintiff arguably caused or contributed to his accident.

In particular, New York courts have held that cases involving claims of faulty or defective elevator doors involve some degree of operation by the plaintiff and thus do not lend themselves to res ipsa charges. See, e.g., Feblot v. New York Times Co. , 32 N.Y.2d 486. In many cases involving a passenger being struck by a closing elevator door, evidence suggesting that the passenger was distracted in some manner prior to entering the elevator or was rushing to attempt to board the elevator as the doors were closing raises sufficient questions of contributory negligence to preclude a charge.

Defense counsel should also be alert to the possibility that the plaintiff was the actual cause of his injuries, even while riding in an elevator that malfunctioned in some way. Put another way, the mere fact that an elevator malfunctioned and a passenger was injured does not give rise to liability without a causal link between the malfunction and the injury.

For example, in Egan v. A.J. Construction Corporation , 94 N.Y.2d 839, the plaintiff was a passenger in an elevator that stalled six feet above the lobby floor of a building, but was unharmed from the stalling of the elevator. The doors of the elevator were subsequently opened, and the plaintiff jumped from the car of the elevator to the lobby floor, injuring his back. New York's highest court, the Court of Appeals, held that the plaintiff, under these circumstances, was not entitled to recover from the building owner or any maintenance contractor because the cause of his injuries was not the dangerous or malfunctioning elevator, but the act of jumping from the elevator without immediate threat of danger. In light of that determination, the complaint was dismissed in its entirety.

Finally, with respect to the often-encountered circumstance of a stopped escalator, New York courts have repeatedly held that it should be considered a stationary staircase for purposes of liability analysis, rather than defective equipment. Adamo v. National Railroad Passenger Corp. , 897 N.Y.S.2d 85 (2010). The court in Adamo held that
the plaintiff had chosen to ascend the stopped escalator and could point to no specific dangerous or defective condition posed by the escalator that caused her to fall. Thus, the court dismissed the complaint with respect to all defendants, since the height differentials between the steps of the escalator were readily apparent, and there was no evidence of any other cause of the plaintiff's accident.

Conclusion

Given the complex nature of elevators and escalators, and the various ways in which a passenger on either device may be injured, counsel that litigate cases involving either type of equipment should be prepared to deal with issues regarding contractual relationships among various possible defendants as well as issues of res ipsa loquitur in lieu of specific evidence of defective equipment and plaintiff's negligent conduct as the cause or contributing factor of the accident.

Brian P. Heermance is a partner and Kevin A. Hickman is an associate in the New York office of Morrison Mahoney LLP. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.