Virginia Lawyers Weekly

A defendant elevator maintenance company cannot escape liability for an elevator accident by arguing that its duty was limited to the terms of its contract with the defendant building owner. That was the ruling by Henrico Circuit Judge Catherine C. Hammond in a recent case involving injuries from a malfunctioning elevator at the Richmond International Raceway.

Elizabeth Markert sued both the Raceway and Otis Elevator Company, claiming that she was hurt when an elevator at the track unexpectedly dropped for some distance and then suddenly stopped, throwing the occupants around. Otis had a contract with the Raceway to perform elevator maintenance.

Otis filed a demurrer claiming that Markert had no tort claim for Otis’ alleged failure to fulfill a duty that existed only by virtue of the maintenance contract, to which Markert was not a party.

The scope of Otis’ actual undertaking was a critical issue, according to attorneys in the case. According to the parties’ briefs on the demurrer, Otis relied in part on a Michigan premises liability case where a snow removal contractor escaped liability. In that case, the snow removal contractor had failed to show up to attempt any snow removal whatsoever.
By contrast, Markert’s lawyers argued, Otis had attempted to perform maintenance on the Raceway elevator the day before the accident. After observing a malfunction of the elevator, Otis workers determined to place the elevator back in service, according to the plaintiff’s brief.
The ruling by Hammond did not produce a written opinion. An order entered Feb. 8 states simply that the court, “having considered the written submissions and oral arguments of the parties, finds that the Demurrer should be denied.”

“We believe that it is an important ruling,” said Roger Creager, an attorney for Markert. The defendant’s argument “is one that you will see fairly frequently in different contexts.”

Hammond’s ruling is “a good example of the limits of the defense argument that you can’t sue in tort for breach of contract,” Creager said.

Although the case was decided on Otis’ demurrer, the issue was not argued until after discovery. The plaintiff’s brief contained numerous factual details purporting to show that Otis employees responded to a complaint about the elevator, tested the machine, and then returned it to service the day before the plaintiff’s accident.

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