Beach v. B.F. Saul Prop. Co.

303 Ga.App. 689

694 S.E.2d 147

BEACH et al.v.B.F. SAUL PROPERTY COMPANY.

No. A09A1770.

Court of Appeals of Georgia.

March 30, 2010.

Reconsideration Denied April 14, 2010.

Joe A. Weeks, for Appellants.

Joseph D. Perrotta, for Appellee.

BARNES, Judge.

Martha Beach and Sofia Deglel appeal the grant of a directed verdict to B.F. Saul Property Company ¹ (“Saul Property”) on their claims arising from an incident in which they were trapped and repeatedly bounced up and down uncontrollably for almost an hour and a half in a malfunctioning elevator in an office building owned by Saul Property. Saul Property did not dispute Beach and Deglel's account of the incident or contend that they were not trapped in the elevator as they asserted.

Although Beach and Deglel filed separate actions against Saul Property, the cases were consolidated for trial. Their complaints alleged that Saul Property negligently maintained the premises in question, and sought damages for the physical and emotional injuries they suffered.

Beach testified at trial that she and Deglel entered the elevator and pushed the button to go down, but the elevator went up until there was a metal-on-metal sound and it dropped down a little. Then, it stopped and began shaking them, bouncing them like a basketball, causing them to hit their heads and backsides, and clanging metal against metal. Beach was vomiting and “puking.”

They tried the emergency phone, but nothing worked. Deglel called 911. They were bouncing so fast that when they tried to dial the phone, their fingers would bounce between digits. Beach testified it was like missing one's chair and falling to the floor; it was jarring, like her teeth were being jarred loose. The bouncing happened about five to ten seconds apart. Finally there was a loud crash and the elevator stopped; the doors were pried open and they were able to crawl out. Three or four men were gathered there. The EMTs came and wanted to take Beach to the hospital because her blood pressure was so high, but she did not want to go.

It had been raining on the day of the incident, but it was not stormy. There were no power surges the whole day. “It was an old, dreary, rainy, January, Atlanta, Georgia day.” The other elevators seemed to be working.

Beach did not speak to Saul Property's building manager, but did receive an e-mail from her. Beach did not feel up to talking to her.

Deglel testified that during the time they were trapped in the elevator being bounced around, none of the emergency buttons worked. The elevator was going really fast; she was scared because “it was not a normal drop.” While they were trapped, she called Saul Property and told the woman who answered that they were stuck in the elevator, but she was disconnected. Deglel called back and spoke to her two or three times telling her, “You have to get us now because we are going to die; the way this elevator is going, we are not going to make it. You have to get somebody in here.” It seemed like they were in the elevator “forever.” She was throwing up. She thought she was going to die.

Then there was a “boom sound” and the door opened. They crawled out of the elevator. She was concerned about Beach because she was having heart problems. The paramedics were there, but they were mainly treating Beach.

Then, a security man came and Deglel told him that Beach was hurt and she told him “ exactly what had happened ” and that she was aching everywhere, that they had been throwing up in the elevator, and how long they were stuck there. He said that he was going to report it. Deglel did not speak to anyone from Saul Property until the next week.

Beach's doctor testified that the trauma to her hand required surgery, and Deglel suffered from post-traumatic stress disorder. Beach and Deglel both introduced medical bills showing that they incurred substantial medical expenses.

Beach testified that the elevator malfunctioned every week, and Deglel testified that they were always skipping floors. Beach and Deglel introduced Saul Property's records that supported their testimony. Repeated entries in the records show that the elevators were not leveling, they became stuck on various floors, and people were repeatedly trapped in them. Further, numerous witnesses testified about their problems on the elevators. The elevators were undependable; they always malfunctioned; they were so erratic that the problems were not worth reporting; problems happened with enough regularity that problems also did not warrant reporting; the elevators had minds of their own. One witness testified that on several occasions the elevators would not stop, but would continue to go up and down, and that she reported this to the building's management “more than once.”

After Beach and Deglel presented their case, Saul Property moved for a directed verdict contending that they had failed to present any evidence of its prior superior knowledge of any defect that may have caused the elevator to malfunction. The trial court found that evidence produced by Beach and Deglel showed that Saul Property had a program of inspection ² and repair of the elevator, that Beach and Deglel did not present expert testimony about the cause of the malfunction, that they did not present sufficient evidence to prove that Saul Property had superior knowledge of any problem with the elevators, that they did not present any evidence that the inspections or maintenance Saul Property actually performed were negligent or that it was put on notice that the elevator was defective during any of the inspections. The trial court further found that Saul Property “had inspection and repair procedures in place and used all reasonable precautions to protect its passengers from harm.” Accordingly, the court found that “there is no basis for a jury to find that [Saul Property] knew, or had reason to know, that elevator five was defective or presented a risk of harm to [Beach and Deglel].”

The trial court also found that Beach and Deglel had failed to establish that Saul Property had notice of an injury at the time of the incident or otherwise had cause to remove the elevator from service until a proper state authority conducted an inspection. The trial court found, however, that even with the benefit of the spoliation presumption, the result would have been the same. Consequently, the trial court granted Saul Property's motion for a directed verdict.

Beach and Deglel contend the trial court erred by granting a directed verdict to Saul Property because the evidence they presented was sufficient to have their case decided by a jury. We agree, and reverse the grant of the directed verdict.

1. In Georgia,

[a] directed verdict is authorized only when there is no conflict in the evidence on any material issue and the evidence, with all reasonable deductions and construed in favor of the non-moving party, demands a certain verdict. Further, the trial court is not authorized to weigh the evidence or decide issues of fact. Therefore, we cannot affirm this grant of directed verdict if there is any evidence supporting [Beach and Deglel's] claims. Although a directed verdict would have been proper if [Beach and Deglel] simply failed to prove [their] case, we are satisfied the evidence is in conflict, and with all inferences that reasonably might be drawn therefrom, [including the presumption derived from Saul Property's spoliation of evidence,] does not demand a verdict in favor of [Saul Property].... Although there is evidence which could support a verdict in favor of [Saul Property] that is not a sufficient basis for directing a verdict. There must be no evidence of any kind supporting [Beach and Deglel's] position.

(Citation and punctuation omitted.) Moore v. American Suzuki Motor Corp., 203 Ga.App. 189, 189-190(1), 416 S.E.2d 807 (1992).

Building owners owe those who use their elevators the duty of exercising extraordinary care.

“The owner of an office building, equipped with an elevator which is operated for conveying his tenants and their employees and patrons to and from the various floors, is not a common carrier in the sense that he is bound to serve all the public; yet his duty as to protecting passengers in the elevator is the same as that chargeable to carriers of

passengers by other means. [Cits.] This duty requires him to exercise extraordinary diligence on behalf of himself and his agents to protect the lives and persons of his passengers. [OCGA § 46-9-132 ³].” Grant v. Allen, 141 Ga. 106, 108(1), 80 S.E. 279 (1913); see generally OCGA § 8-2-101(b).

Gaffney v. EQK Realty Investors, 213 Ga.App. 653, 655, 445 S.E.2d 771 (1994). Even though premises owners owe a duty of “extraordinary diligence,” they are not insurers of the safety of elevator passengers. Millar Elevator Svc. Co. v. O'Shields, 222 Ga.App. 456, 458(2), 475 S.E.2d 188 (1996); see Lane v. Montgomery Elevator Co., 225 Ga.App. 523, 524-525(1), 484 S.E.2d 249 (1997).

Although some cases of this court have applied premises liability principles in common carrier cases, in Southeastern Stages v. Stringer, 263 Ga. 641, 437 S.E.2d 315 (1993), our Supreme Court disapproved the

language in the Court of Appeals' opinion applying premises liability law to common carrier cases. The rule applicable in common carrier cases is that whenever a carrier, through its agents or servants, knows or has opportunity to know of a threatened injury, or might have reasonably anticipated the happening of an injury, and fails or neglects to take the proper precautions or to use proper means to prevent or mitigate such injury, the carrier is liable. It is the common carrier's duty to use proper care and vigilance to protect passengers from injuries by such persons that might reasonably have been foreseen and anticipated. Knowledge of the passenger's danger, or of facts and circumstances from which that danger may reasonably be inferred, is necessary to fix the carrier's liability in this class of cases. The

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