Patsy Gaffney and her husband Thomas filed a complaint against EQK Realty Investors, Investment Trust; Equitable Real Estate Investment Management, Inc. (d/b/a Compass Management & Leasing); and Schindler Elevator Corporation.
EQK is the owner of an office building. Compass is the managing agent. Schindler is the company retained by Compass to perform service and maintenаnce on the elevators in the building. Patsy Gaffney is employed by Equifax, Inc., a tenant in the building.
Before the building was opened one morning, a Compass maintenance engineer noticed that the doors on one of the elevators were standing open. He entered the elevator and attemptеd to engage it, but the doors would not close and the elevator would not move. He disengaged the elevator and reported the malfunction to the building security officer, who summoned Schindler service technicians. Later that morning, the engineer returned to the elevator and was assured by one of the technicians that the problem would be corrected. The technicians made repairs by replacing a defective armature and trаnsferring a movable contact onto the new armature. Afterward, the technician reported to Compass personnel that the elevator had been repaired and placed back in service.
Several hours later, Patsy Gaffney entered the elevator on the third floor in order tо go to the ground floor. The doors shut and the elevator plummeted and came to an abrupt stop below the first floor. She sustained injuries alleged to be totally and permanently disabling.
An engineer who inspected the elevator thereafter concluded that the elevator malfunctioned after it was placed back in service because the movable contact had not been properly seated. In his opinion, the drop was the result of simple human error.
EQK and Compass moved for summary judgment, pointing to Schindler as solely responsible for any negligence. Plaintiffs appeаl the trial court’s grant of that motion.
The question presented is whether the owner of a leased office building has a non-delegable duty to maintain the building’s elevators in safe operating condition, so that where, as here, the owner (through its agent) discovers an elevator malfunction and dispatches an independent contractor to repair it, the owner is vicariously liable for the contractor’s negligence in making the repairs. “[T]he cаses of ‘nondel *654 egable’ duty . . . hold the employer liable for the negligence of the [independent] contractor, although he has himself done evеrything that could reasonably be required of him. They are thus cases of vicarious liability.” Prosser and Keeton, The Law of Torts, p. 511, § 71 (5th ed. 1984).
In
Towles v. Cox,
Likewise in
Parking Co. of America v. Sucan,
In this case, unlike
Towles, Sucan,
and
Ellis v. Sears Roebuck & Co.,
Generally under Georgia law, the owner of a leased office building delegating the duty of repair to an independent contractor wоuld not be vicariously liable for the contractor’s negligence. OCGA § 44-7-2 (b) provides that “[i]n any . . . lease ... for the use or rental of real property
as a dwelling place,
a landlord or a tenant may not waive, assign, transfer, or otherwise avoid any of the rights, duties, or remedies contained in . . . (1) Code Section 44-7-13, relating to the duties оf a landlord as to repairs and improvements; (2) Code Section 44-7-14, relating to the liability of a landlord for failure to repair. . . .” (Emphasis supplied.) “Convеrsely, it follows that a landlord
may
contract to avoid these statutory requirements when renting property which is not to be used as a dwelling-place.” (Emphasis in original.)
Colonial Self Storage of the South East v. Concord Properties,
Nevertheless, a landlord is vicariously liable for a contractor’s negligence where the duty is to maintain an elevator in safe operating condition. “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 cаrrier 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 tо 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.]”
Grant v. Allen,
Consequently, in accordanсe with the abundant foreign authority and treatises cited by plaintiffs, we hold that the owner of an office building owes a duty of extraordinary diligence to elevator passengers and cannot delegate this duty to an independent contractor engaged to repair the elevator. See, e.g.,
Jones v. Otis Elevator Co.,
861 F2d 655, 665 (19) (11th Cir. 1988) (citing
White v. Milner Hotels,
We do not here address the duty of defendant Schindler towards plaintiffs. Even if its duty to plaintiffs is one of ordinary care, a breаch thereof would subject the vicariously liable owner to liability for breach of its higher duty to exercise extraordinary diligence. Nor do we address any question of indemnity.
As to Compass, the managing agent, its liability is determined by the same rule as would obtain if the suit had been solely against the owner of the premises and there had been no agency involved.
Ramey v. Pritchett,
Judgment reversed.