BEACH et al. v. B. F. SAUL PROPERTY COMPANY.
A09A1770
Court of Appeals of Georgia
DECIDED APRIL 13, 2010.
(694 SE2d 147)
BARNES, Judge.
[a] presumption arises when a defendant is sentenced within the statutory limits set by the legislature that such sentence does not violate the Eighth Amendment‘s guarantee against cruel and unusual punishment. Such presumption remains until a defendant sets forth a factual predicate showing that such legislatively authorized punishment was so overly severe or excessive in proportion to the offense as to shock the conscience.
(Punctuation omitted.) Kollie v. State.23 Here, Gresham has not demonstrated that his sentence shocks the conscience. See id. Accordingly, the trial court did not err in imposing or in refusing to reconsider Gresham‘s sentence.
Judgment affirmed. Barnes and Bernes, JJ., concur.
DECIDED APRIL 13, 2010.
Benjamin A. Pearlman, Jessica I. Benjamin, for appellant.
Kenneth W. Mauldin, District Attorney, Jon R. Forwood, Assistant District Attorney, for appellee.
A09A1770. BEACH et al. v. B. F. SAUL PROPERTY COMPANY.
(694 SE2d 147)
BARNES, Judge.
Martha Beach and Sofia Deglel appeal the grant of a directed verdict to B. F. Saul Property Company1 (“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
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 еlevator “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.
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 inspection2 and repаir 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 fоr a jury to find
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 a 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, wе 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 SE2d 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 SE 279) (1913); see generallyOCGA § 8-2-101 (b) .
Gaffney v. EQK Realty Investors, 213 Ga. App. 653, 655 (445 SE2d 771) (1994). Even though premises owners owe a duty of “extraordinary diligence,” they are not ensurers of the safety of elevator passengers. Millar Elevator Svc. Co. v. O‘Shields, 222 Ga. App. 456, 458 (2) (475 SE2d 188) (1996); see Lane v. Montgomery Elevator Co., 225 Ga. App. 523, 524-525 (1) (484 SE2d 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 SE2d 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 carrier is not regarded as an insurer of his passenger‘s safety against every possible source of danger; but he is bound to use all such reasonable precautions as human judgment and foresight are capable of, to make his passenger‘s journey safe and comfortable.
(Citation and punctuation omitted.) Id. at 642-643. Therefore, even though some knowledge of the threat to the elevator passenger is required before liability may be imposed, the duties imposed on the elevator owner or operator are much greater because they are
In MARTA v. Rouse, 279 Ga. 311 (612 SE2d 308) (2005), quoting Savannah & c. R. Co. v. Boyle, 115 Ga. 836, 838-839 (42 SE 242) (1902), our Supreme Court further explained the duty of extraordinary care owed by those who owe extraordinary diligence.
[W]hen the circumstances are such that a person in the exercise of that degree of diligence known to the law as extraordinary care would see, or should apprehend, that the passenger is in danger of insult or injury; and when the circumstances were such that the employees . . . , in the exercise of the degree of diligence above referred to, should have foreseen that an insult or injury was to be reasonably apprehended, and failed or refused to use the means аt hand to protect the passenger therefrom, the [carrier] is liable to the passenger for any damages he sustains as a consequence of such failure or refusal. The general rule would seem to be 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. 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 law now seems to be well settled that the carrier is obliged to protect his passenger from violence and insult, from whatever source arising. He is not regarded as an insurer of his passenger‘s safety against every possible source of danger; but he is bound to use all such reasonable precautions as human judgment and foresight are capable of, to make his passenger‘s journey safe and comfortable.
(Citations and punctuation omitted; emphasis supplied.)
Thus, owners or operators of an elevator, like common carriers of passengers, must exercise extraordinary diligence, i.e., “that extreme care and caution which very prudent and thoughtful persons exercise under the same or similar circumstances,”
2. Beach and Deglel also allege that the trial court erred by finding that they were not entitled to the presumption of spoliation that arises from Saul Property‘s violation of
(a) The owner or lessee shall4 report, by telephone, to the enforcement authority on the same day or by noon on the next work day, excluding state holidays and weekends, all elevator . . . related accidents involving personal injury or death. The owner or lessee shall also provide a written report of this accident within seven days.
. . .
(c) Any elevator . . . involved in an accident described in subsection (a) or (b) of this Code section shall be removed from service at the time of the accident. The equipment shall not be repaired, altered, or placed back in service until inspected by a certified inspector for the enforcement authority.
(Emphasis supplied.) Saul Property contends, and the trial court found, that it was not required to report the incident or take the elevator out of service until it could be inspected because it was not aware that the wоmen suffered personal injuries. The evidence does not support that finding.
Saul Property‘s property manager testified that she was called by security and told about the incident. She was also told that paramedics were called to the scene. The security person told her that there had been an incident, they had gotten the women out of the elevator, that hе had called the paramedics because he was concerned that one of the women either had a stroke or a heart condition, but that the paramedics had checked them out and they were fine and were going home. He also told her that her one of the women was visibly upset. Despite this knowledge the property manager took no timely action to investigate whether Beach or Deglel were injured. She did not call the State, or otherwise comply with
Given this evidence, the trial court erred by finding that Saul Property did not have notice of an injury sufficient to cause it to comply with
Moreover, the trial court‘s finding that the presumption would have made no difference in the case misperceives the nature of the presumption. The presumption is “that the evidence would have been harmful to the spoliator.” (Punctuation and footnote omitted.) American Multi-Cinema v. Walker, 270 Ga. App. 314, 317 (2) (b) (605 SE2d 850) (2004). See also
As in Baxley v. Hakiel Indus., a “meaningful link” existed between Beach and Deglel‘s claims against Saul Property and the spoliation because an independent inspection by a certified State inspector could have revealed evidence relevant to the critical issue of the cause of the elevator‘s malfunction and any relationship between the previous incidents involving the elevator. Baxley v. Hakiel Indus., supra, 282 Ga. at 313-314. Without a timely State inspection, no expert could be sure that the elevator had not been repaired or modified after the incident. Although Saul Property‘s elevator maintenance provider attributed thе cause of the incident to a power surge caused by lightning, a cause disputed by Beach and Deglel, without a timely State inspection, not affected by earlier repair efforts, “plaintiffs would never be able to show what malfunctioned and caused their injuries.” Lane v. Montgomery Elevator Co., supra, 225 Ga. App. at 526 (1).
Moreover, we do not find that Peterson Properties Corp. v. Finch, 235 Ga. App. 86 (508 SE2d 463) (1998), requires a different result because Peterson is distinguishable on its facts. See Thomas v. MARTA, 300 Ga. App. 98, 101 (1) (684 SE2d 83) (2009). The court in Peterson relied upon the absence of any evidence that reports of problems with the elevator had been received; in this case, however, the evidence shows repeated incidents with the elevators that were known to Saul Property. Accordingly, the spoliation rule as expressed in Lane v. Montgomery Elevator Co. should have applied to this case, and the trial сourt erred by finding otherwise.
Therefore, the grant of the directed verdict to Saul Property must be reversed.
Judgment reversed. Johnson, P. J., Blackburn, P. J., and Ellington, J., concur. Miller, C. J., concurs in judgment only. Andrews, P. J., and Mikell, J., dissent.
ANDREWS, Presiding Judge, dissenting.
Martha Beach and Sofia Deglel alleged they suffered physical injuries and physical and mental pain and suffering when an elevator malfunctioned while they were using it to exit the office building where their employer leased space from the building owner, B. F. Saul Property Company. They sued Saul Property alleging that it negligently failed to protect them as passengers in the elevator by
At the end of the work day, Beach and Deglel left their office on the thirteenth floor of the sixteen story office building and entered the freight elevator to descend and exit the building. There is no evidence as to why they chose to use the freight elevator rather than any of the other four passenger elevators in the building, which Beach said were operating and being used by other office workers. Nothing, however, shows that office workers were not invited to use the freight elevator. There is no evidence that the freight elevator was malfunctioning in any observablе manner when the door opened and Beach and Deglel entered. According to Beach and Deglel, after they entered the elevator, they pushed buttons to go down to different levels, the door shut, and, instead of going down, the elevator went up to the fifteenth or sixteenth floor. The elevator made a banging sound, then bounced and shook them in a jarring manner as it made metal clanging noises while continuing to go up and down. Beach and Deglel said they were entrapped in the elevator under these circumstances for an hour and twenty-five minutes until elevator maintenance, building security, or paramedics were able to get them out of the elevator on the ninth floor.
As the owner of the office building, Saul Property had a nondelegable duty to exercise the same extraordinary diligence as a common carrier to protect the passengers invited to use the elevators in its building. Gaffney v. EQK Realty Investors, 213 Ga. App. 653-655 (445 SE2d 771) (1994). The record shows that Saul Property entered into a contract providing for ThyssenKrupp Elevator Corporation to maintain and repair the elevators in the building.7 The fact that Saul Property‘s duty to protect the passengers in its elevators was nondelegable did not prevent it from contracting with an independent elevator expert, ThyssenKrupp, to perform the maintenance and repairs necessary to keep the elevators reasonably safe; rather the nondelegable duty means that Saul Propеrty cannot avoid its duty by contracting with a third party, and that it remained vicariously liable for any negligence by ThyssenKrupp. Id. In general, the duty to exercise “extraordinary diligence” means the exercise of “extreme care and caution which very prudent and thoughtful persons exercise under the same or similar circumstances,” the absence of which is
In the absence of any negligence, Saul Property was entitled to a directed verdict. “[A] direсted verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict.
“This Court has long recognized that mechanical devices such as [elevators] get out of working order, and sometimes become dangerous and cause injury without negligence on the part of anyone. This evidence alone without any showing of slight negligence, does not create a triable issue.” (Citation and punctuation omitted; emphasis in original.) Sparks v. MARTA, 223 Ga. App. 768, 770 (478 SE2d 923) (1996). It follows that the duty to exercise extraordinary diligence to protect passengers on an elevator does not make the elevator owner an insurer of the safety of its passengers, and does not make the owner liable for injury caused by the mechaniсal malfunction of an elevator in the absence of at least slight negligence. Id. at 768. We held in Sparks, supra, at 769 and in Brady v. Elevator Specialists, 287 Ga. App. 304, 308 (653 SE2d 59) (2007), that extraordinary diligence and the absence of slight negligence can be demonstrated by evidence of a regular program of maintenance and repair for the elevator showing that the elevator was operating properly prior to the malfunction which caused the injury. When the evidence shows that the owner has taken reasonable measures to keep the elevator maintained and repaired, and there is no evidence that the owner actually knew about or should have reasonably anticipated the elevator malfunction which caused the injury, there is аn absence of even slight negligence and the owner is not liable for injury caused by the mechanical malfunction. Id.; Sparks, 223 Ga. App. at 769-770.
The record shows that Saul Property (and ThyssenKrupp with which it contracted to maintain and repair the elevator) took reasonable steps to keep the freight elevator in safe operating condition, and that the elevator was operating properly before the mechanical malfunctiоn occurred. Because there was no evidence that Saul Property knew about or should have reasonably anticipated and prevented the malfunction at issue, Saul Property was not negligent in any degree; was not liable for any resulting injury; and was entitled to a directed verdict.
Beach and Deglel claim that Saul Property violated
This claim fails for two reasons. First, the trial court rejected the spoliation claim by finding that Saul Property did not violate the reporting provisions of
Evidence showed that Saul Property‘s building manager was notified by building security that Beach and Deglel had been checked out by paramedics after the entrapment in the elevator and that there was “no problem” and “they were fine” and they were going home. Beach testified that she did not reрort any injury to the paramedics. She testified that, after she got out of the elevator and was checked out by paramedics, co-workers took her back to her office in the building where “they got wet towels and then calmed us down,” and she then drove home. Although a building security officer thought Beach may have had a stroke or heart condition, there was no evidence to confirm this, and Beach denied it. Beach first sought medical attention five or six days after the incident. Deglel testified that, after getting out of the elevator, she was seen by the paramedics but received no medical treatment. Deglel was confronted on cross-examination with testimony she gave in a prior deposition in which she admitted that paramеdics asked her if she was okay and she responded “yeah.” Cross-examination also showed that, when Deglel was asked in the prior deposition if she reported any injuries to the paramedics, she responded, “I don‘t remember.” After seeing the paramedics, Deglel testified that she went with Beach to their office where co-workers calmed them down with wet towels. She said her fiancé (now husband) then picked her up from work, they drove to a Taco Bell restaurant where they stayed for about an hour and then went home. Deglel testified that she sought no medical treatment until more than a month after the incident. Because there was evidence in the record to support the trial court‘s factual finding that Saul Property had no notice that the elevator accident involved “personal injury” to Beach or Deglel, and that there was no violation of the reporting provisions of
Second, even if Saul Property violated the reporting provisions of
I respectfully dissent.
I am authorized to state that Judge Mikell joins in this dissent.
DECIDED MARCH 30, 2010 —
RECONSIDERATION DENIED APRIL 14, 2010.
Joe A. Weeks, for appellants.
Joseph D. Perrotta, for appellee.