No. 50715-0-I.The Court of Appeals of Washington, Division One.
Filed: September 22, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 01-2-17153-4. Judgment or order under review. Date filed: 06/07/2002.
Counsel for Appellant(s), James D. Hailey, Attorney at Law, 500 Central Bldg, 810 3rd Ave, Seattle, WA 98104-1693.
Counsel for Respondent(s), Greg Montgomery, Miller Nash LLP, 601 Union St. Ste 4400, Seattle, WA 98101-1367.
Michael Mines, Betts Patterson Mines PS, 701 Pike St. Ste 1400, Seattle, WA 98101-3927.
GROSSE, J.
A common carrier owes the highest duty of care to its passengers commensurate with the practical operation of its conveyance at the time and place in question and consistent with the practical operation of its business. In that context, a common carrier has a duty to protect passengers from the danger of injury from known malfunctions or defects of those that it should have anticipated from the known facts and circumstances. But, assuming for purposes of summary judgment that Seattle University’s ownership and use of the elevator made it a common carrier, Youtsey fails to present evidence to establish a breach of duty. He provides no evidence that Seattle University knew or should have known of any malfunction or defect. Therefore, we affirm the trial court’s summary judgment of dismissal.
FACTS
Jeff Youtsey worked for a company hired to set up lighting for a senatorial debate taking place in Campion Hall on the campus of Seattle University. Campion Hall is a residence hall with a large multi-purpose auditorium.
On October 15, 1998, Youtsey reported to work at Campion Hall. He and his co-workers repeatedly used the stairs and a freight elevator to move equipment from the outside entry loading dock up one level to the kitchen on the auditorium level. Over the course of the day Youtsey estimated he operated the elevator 10 to 15 times without any problem or incident.
The freight elevator at Campion Hall has an exterior manual, bi — parting door at each floor with an interior wire mesh gate. The exterior doors must be closed manually by pulling a strap attached to the upper portion of the door. There are straps on both the inside and outside of the exterior door, as well as on the mesh gate. Pulling down on the strap causes the upper door to come down and lower door to come up to meet in the middle, until the doors hit a metal stop, leaving a space of approximately 1-1/2 inches between the two doors. There is also a rubber gasket between the doors. Near the freight elevator on the loading dock level, a sign was posted warning users to keep the freight elevator doors open at the ballroom level after use because if the exterior door is closed on the ballroom level the elevator can be recalled to the loading dock and used to enter the building at any time of the day or night. There were also warning signs posted on the exterior elevator door and above the elevator call buttons on the wall next to the elevator notifying users to keep hands away from the doors and to use caution.
After the last load of the day was removed from the freight elevator by Youtsey and his coworkers, Youtsey noticed the doors were open and decided, contrary to the warning sign on the lower floor, that the elevator doors should be closed. Youtsey indicated he reached up to grab a strap in order to close the elevator doors. The doors worked as they were designed and closed quickly, unfortunately crushing Youtsey’s right hand. Youtsey could not explain how the accident occurred other than to say that he grabbed a strap and pulled with force to close the doors.
The parties disagree about whether there was an exterior strap attached to the outside of the upper elevator door at the time of the accident. Two coworkers of Youtsey’s, who worked along side him on the day of the accident, provided affidavits indicating that the service elevator in question did not have an external strap on the upper elevator door. They admit, however, that they did not notify anyone at Seattle University of this problem. All pictures contained in the record show that internal and external straps are attached to the upper door. Youtsey’s testimony at deposition contradicted that of his coworkers indicating there were two straps, but admitting he didn’t know which strap he pulled or how the accident occurred. Seattle University and Millar Elevator Service dispute any allegation that between the time of the accident and anywhere from 15 to 45 minutes later when pictures were taken of the scene, that a replacement elevator strap was attached to the external portion of the door. Alternatively, counsel for Youtsey argues liability based on the effect of the different length of straps on the interior and exterior of the upper door.
Youtsey filed a personal injury action against Seattle University alleging negligence. Millar Elevator Service was added as a defendant. Seattle University and Millar Elevator Service moved for summary judgment of dismissal. The trial court granted the motions for summary judgment, dismissing Youtsey’s claims. The trial court also denied a motion for reconsideration. Youtsey appeals.
DISCUSSION
The usual standard of review of a summary judgment applies.[1]
A. Millar Elevator Service.
Youtsey claims Millar Elevator Service is a common carrier, that it is held to the highest standard of care, and that Millar Elevator Service breached that duty. We disagree. It is undisputed that Millar Elevator Service contracted with Seattle University to maintain and repair the elevators, subject to a regular schedule or notice of a problem. Millar Elevator Service is not an owner or operator of the elevator in Campion Hall. It does not have continual or exclusive access to the elevator and is not a common carrier.[2] An entity that merely maintains property does not have the same duty as a possessor or occupier of land.[3]
Ordinary care is the appropriate standard of care for maintaining an elevator under a limited service contract under which the contractor does not have exclusive control.[4] Thus, Millar Elevator Service had a duty of ordinary care, and in order to be found liable, it must have been on notice of any defect with the elevator.[5] As conceded, Millar Elevator Service did not have notice of any alleged missing strap or that there was a potential problem with uneven straps. Summary judgment as to Millar Elevator Service is affirmed.
B. Seattle University.
The mere occurrence of an accident and an injury does not necessarily lead to an inference of negligence.[6] To prove actionable negligence, a plaintiff must establish the existence of a duty, the breach of the duty, and a resulting injury.[7] The parties dispute whether Seattle University is a common carrier, thus owing the highest duty of care to the passengers of its elevators, or whether Youtsey was merely a business invitee, owed a duty of ordinary care. We assume for purposes of summary judgment that Seattle University has the duty of a common carrier and owes the highest duty of care to the elevator passengers. However, a common carrier is not an insurer of its passengers’ safety in all circumstances.[8] The standard of care or duty of a common carrier is not strict liability. As stated above, a common carrier owes the highest duty of care to its passengers commensurate with the practical operation of its conveyance at the time and place in question and consistent with the practical operation of its business.[9] Common carriers have a duty to protect their passengers from the danger of injury from malfunctions or defects of which they know or should anticipate.[10]
Here, even if there is a question of the existence of an outside elevator strap at the time of the accident, or a question as to differing strap lengths, facts we assume for the purposes of summary judgment, Youtsey fails to provide evidence that Seattle University knew or should have known of any malfunction or defect. Similar to Tinder v. Nordstrom, Inc., a case dealing with the sudden stop of an escalator, there was no prior history of the freight elevator malfunctioning or of any prior accident.[11] Nor was there any evidence other than speculation that Seattle University had notice of a missing strap on the elevator from any source, including from Youtsey and his coworkers.
There is no doubt that for the purposes of summary judgment Seattle University has a duty to use the highest degree of care. But, extending the duty to a situation where there is no notice to the university of a potential problem would serve to establish that a university or other facility, which owns and operates elevators, must insure all passengers who ride the elevators from all potential harm. The common carrier duty does not extend this far. Further, there is no assertion that Seattle University did not take precautionary measures such as posting warning signs or providing for regular maintenance of the elevator. The high degree of care Seattle University owes to those using the elevators does not extend to these facts. Further, without any specific memory of how the accident happened, Youtsey simply offers a speculative theory as to how he might have sustained his injuries. A verdict cannot be founded on mere theory or speculation.
{I}f there is nothing more tangible to proceed upon than two or more conjectural theories under one or more of which a defendant would be liable and under one or more of which a plaintiff would not be entitled to recover, a jury will not be permitted to conjecture how the accident occurred.[12]
In short, a jury would be required to speculate that an alleged defect in the freight elevator caused Youtsey’s accident.
The decision of the trial court is affirmed.
COLEMAN and APPELWICK, JJ., concur.
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