Daily Development for Wednesday, July 25, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

LANDOWNER LIABILITY; ELEVATORS: Maryland upholds old majority rule that owners of building containing elevators are treated as common carriers with high standard of care to prevent injuries to riders, even in modern area of safer, self-service elevators.

The Johns Hopkins Hospital v. Corriea, 921 A. 2d 837 (Md. App. 2007)

Plaintiff claimed serious aggravation of an existing back injury when a slow, low level elevator lurched.  There was evidence that the elevator had some parts that had worn, and that there had been similar incidents involving this elevator in the past.  But Johns Hopkins had contracted with a professional elevator operating company to maintain the elevator systems. 

The court determined that it would adhere to the established law in Maryland and the majority of other U.S. jurisdictions:

[O]ne who "is engaged in the undertaking of running an elevator as a means of personal transportation" is required to use the "highest degree of care and diligence practicable under the circumstances," which is the same standard that common carriers are required to meet.”

The court noted that this standard applies to the owner of the building in which the elevator operates, and does not apply, interestingly enough, to the operating company employed to operate and maintain the elevator. 

Defendant Hospital argued that the rule in Maryland dated back to 1937, and there was some small authority to suggest that Maryland cases since them did not follow it.  Hospital noted that when the rule was developed elevators were much newer technology and, moreover, were generally operated by employees of the building owner who “drove” them.  Thus the rationale for treating them as a common carrier was more evident.  In modern times, however, the Hospital argued, the proper standard ought to be the duty of reasonable care that an owner owes to building invitees generally in Maryland.

The court disagreed. 

"The foundation of the rule for the protection of a passenger is in the undertaking of the common carrier which is to carry safely; but another reason for it is, that when the passenger commits himself to the carrier he does so in ignorance of the machinery and appliances (as well as their defects) used in connection with the means of transportation, and becomes a passive and helpless creature in the hands of the transportation company and its agents. For the same reason, this rule should be extended to those who operate elevators for carrying passengers from one story of a building to another. When they undertake to carry they undertake to carry safely. If it is not their express agreement to do so, it is surely an implied one, and the condition of a passenger caged in a suspended car, is one not only of utter ignorance of what has been done or ought to be done for his safety, but of absolute passiveness and pitiable helplessness when confronted with danger against which human kn

owledge, skill and foresight ought to have guarded; and the rule has been so extended."

Because elevator passengers today remain “passive and helpless creatures,” albeit now independently able to push the buttons to make the car move, the court concluded that the same rationale ought to apply.  It noted that 21 other states follow this approach, while a much smaller number use the ordinary care standard. 

Hospital also argued that the application of the duty to it was inappropriate because, like most building owners, it maintained an independent company to service its elevators.  The court noted that here the allegations of negligence included a failure of the building owner to report incidents suggesting elevator problems to its operating company.  In any event, however, the court concluded that it is the owner of the elevator that invites riders to use it and is most likely to become aware of operational problems.  Therefore, it is appropriate that the high duty be imposed upon the owner, and such duty is non delegable.

Comment 1: Note that the court, citing authority elsewhere, does not extend the rule to escalator operators. 

Comment 2: Although most of the opinion is devoted to the attempt by the defendant to change the “common carrier” rule, in fact likely the real battle in the case was an evidentiary one.  There had been a history of problems with the elevator, and the elevator operating company inspector, in a post-accident inspection, came up with a long list of deferred maintenance issues.   It’s not clear why that company, or its predecessor, had not identified these problems prior to the inspection.  In any event, when the court held the evidence of the post accident inspection admissible, liability appeared to be pretty clear. 

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