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$700,000 result- cited in The New York Jury Verdict Reporter

VIII/5-31 Elevator Accident - Fall Into Empty Elevator Shaft - Arm And Pelvic Fractures

SETTLEMENT: Lucian and Florinda O'Neal v. 250 West 26th St. Corp. and Pace Elevator, Inc. v. Local 1-3, FLM-FJC 23388/88 Date of Settlement 7/10/90 New York Supreme

Pltf. Atty: Alan M. Greenberg of Baron & Zasky, Manhattan

This action settled after Pltf.'s case for $700,000 plus a waiver of a $65,000 Workers' Compensation lien. Pltf. was a 79-year-old custodian at Deft.'s building at 250 W. 26th St. in Manhattan on the date of the incident on 4/28/88. He was employed by Third-party Deft. Union Local 1-3, FLM-FJC.

Pltf. claimed Deft. frequently requested that he stand in for the regular elevator operator. The elevator shaftway doors were equipped with interlocks but not parking locks. On the date in question, Pltf. obtained an interlock access key from the Union office so that he could use the elevator. Pltf. testified that he thought that the elevator was parked on the main floor, but it was actually in use and on another floor. He contended that he opened the shaftway doors and stepped into the empty elevator shaft, falling 20 feet to the floor.

Pltf. contended that Deft. building owner was negligent in its procedures regarding the use of the interlock keys. He also contended that Deft. should have warned him that the elevator was already in use, especially since the building manager had given an interlock key to the other user. Pltf. contended that Deft. Pace, the maintenance company, had an obligation under its contract to regularly inspect and repair the elevator, and that it was negligent for failing to note the absence of a parking lock on the main floor landing shaftway doors. The elevator had passed Pace's inspection 3 weeks prior to this accident. Pltf. also contended that the lack of a parking device violated ANSI regulations and the NYC Administrative Code. Deft. Pace argued that ANSI regulations did not apply to this elevator, which was installed in 1921. Pltf.'s expert testified that a parking lock would have prevented the shaftway doors from opening when the elevator was not on the floor, even if the operator had an interlock access key.

Defts. argued that Pltf. was contributorily negligent for entering the shaftway without first making sure that the elevator was on the floor. Pltf. contended that the elevator was always dark and that it was his practice to enter the elevator and then turn on the inside light.

Deft. 250 West 26th St. Corp. contended that Pltf. was a special employee of the building owner and as such was barred from recovery by Compensation Law. The building corporation was created by the Union to hold the property, but had no employees other than the regular elevator operator.

Injuries: comminuted fractures of the right (dominant) ulna, radius, and wrist; "open book" fracture of the pubic symphysis of the pelvis; mesenteric hematomas in the abdomen; several fractured ribs. Pltf. was hospitalized for 4 months. Defts. argued that Pltf. made an excellent recovery and that any present complaints are a result of his advanced age. Demonstrative evidence: enlarged photos of scene; blowups of anatomical photos of bones in arm; model of the pelvis; parking lock device. Pltf. Experts: John Weldin, P.E., elevator expert, Bergenfield, New Jersey; Dr. Jesse Blumenthal, surgeon, Manhattan.