LEHR v. OTIS ELEVATOR COMPANY (1989)

Otis Elevator Company (Otis) appeals from a products liability judgment in favor of William Lehr.   Lehr, a plumber, was hit by the counterweight of an elevator fabricated by Otis when he entered the shaft of the elevator through the opening created when a wall of the shaft was removed during a building remodeling project.   The jury concluded that the elevator was defective for failure to have a guard inside the elevator shaft preventing access to the path of the counterweight.   Otis contends the judgment cannot be upheld because Lehr entered through the shaft wall and if he had entered through the doors to the shaft a key interlock safety system would have prevented movement of the counterweight, precluding the occurrence of the accident.   We will hold that as a matter of law the removal of the wall of the elevator shaft was a superceding cause of the injury and will reverse the judgment.   That renders moot Lehr's appeal for failure to award prejudgment interest under Civil Code section 3291.

FACTS

The elevator was installed in 1960.   In 1982 the building in which it is located was extensively renovated.   Lehr was employed by a plumbing subcontractor and was doing plumbing work in connection with the renovation.   Lehr decided that it would be necessary to run a waste line along the east basement wall, part of which formed the rear wall of the elevator hoistway or shaft.

About a week before the accident the north (side) wall of the elevator shaft in the basement was removed by the demolition subcontractor.   The job superintendent, Joe Bell, had some workmen erect a temporary barricade of 2x4s and plywood.   Bell testified that sometime before the accident Lehr shined a flashlight through a hole in the plywood to show Bell a flue pipe on the rear wall of the elevator shaft.   Lehr told Bell that he was going to run the waste line through that part of the shaft.   Adjacent to that wall is the mechanism for the counterweights for the elevator.   The counterweights ride within rails which are located within inches of the wall.

On the day of the accident Lehr and Bell went to the basement.   Lehr told Bell he was going to knock the flue pipe off the wall and asked Bell to take the elevator to the first floor and keep it there.   Bell agreed to do so.   Bell testified that he pushed the button for the first floor but the elevator went past it.   He flipped the stop switch and the elevator stopped between the second and third floors.   When the doors opened he saw where he was and turned the elevator back on and again pushed the first floor button.   Instead, the elevator traveled upward to the fifth floor.

Lehr stepped into the elevator shaft when the elevator first stopped.   He went to the rear wall and hit the flue a couple of times with his hammer.   When he saw a large gear moving he stepped back.   He testified the elevator was moving but stopped again.   He went back to the rear wall, pulled himself up on a bracket attached to the wall adjacent to one of the counterweight rails.   He turned sideways and squeezed past the counterweight rail and stood on a wall ledge with part of his body between and within the two rails of the counterweight apparatus.   He hit the flue a couple of times and then the counterweight descended and struck him causing severe injuries.

The counterweight rails are covered by a metal guard or screen on the side facing the interior of the elevator hoistway.   There is no guard or screen covering the rails on the side facing the rear wall.   The distance between the rear wall and the back edge of the rails at the bottom of the hoistway is about four and one-half inches.   This distance increases at a height several feet from the bottom of the shaft due to ledges and in the area where Lehr was standing the distance from the rails to the wall was approximately 14 inches.   The rails themselves are about five inches wide and thus the total distance from the front screen to the rear wall at this point is about 19 inches.

Lehr adduced evidence that the American National Standards Institute has promulgated a safety standard for barrier guards for elevator counterweights.   It provides:  “Unperforated metal guards shall be installed in the pit [at the bottom of the elevator hoistway] on all open sides of the counterweight runway.”  (Emphasis added.)

Otis adduced evidence that entry to the elevator hoistway must normally be accomplished through the doors to the elevator shaft.   The doors are designed to bar entry to the shaft unless the elevator car is present (which blocks the hoistway) or a key access system is utilized.   The key access system requires use of two keys.   To employ them, the elevator must be taken to the basement landing and the first key inserted into a key switch inside the car.   This places the car under the control of the second key switch in the wall of the basement elevator doorway.   The second switch is spring loaded.   When the key is inserted and turned the car can be moved up or down.   When turning pressure stops the switch automatically shuts off.   When the switch is off the elevator is off and will not move.   The two keys are ordinarily in the possession of the state elevator inspectors and the elevator maintenance service.   The building owner can obtain the keys upon request, “[b]ut that is accompanied by a letter.”

It is possible to obtain access to the hoistway through the doors by other means.   String can be used to trip the interlock on the door after the car has left the floor.   However, this information is only possessed by people who work in the elevator industry.   It is also possible to use the emergency stop switch to stop the car between floors.   The doors can be opened from the inside for safety reasons.   This releases the door locks on most Otis elevators.

Lehr adduced evidence that two workmen once opened the basement doors into this elevator hoistway.   A piece of wood was jammed between the doors holding them open for an inch or so.   The workmen thought this might keep the elevator from coming to the basement.   The two men were able to pull the doors open about 9 or 10 inches and one held them while the other reached in and removed the wood.

DISCUSSION

The dispositive issue is whether the removal of the wall of the elevator shaft is a superceding cause of Lehr's injury.   Lehr would not have been injured but for the accessibility of the counterweight pathway to which access was gained by removal of the wall.   The question is whether the antecedent failure of Otis to install a counterweight guard preventing access to the counterweight pathway from the direction of the rear wall, the immediate cause of the accident, was superceded by the removal of the wall without which that “defect” would have occasioned no harm.

Otis argues that the elevator shaft wall is itself a safety device which protects people from injury caused by the elevator machinery and that Otis cannot be held responsible for an injury occasioned by the substantial alteration of the product, removal of the wall, by others over which it had no control.   Lehr argues that, notwithstanding the means of access to the shaft, he would not have been injured but for Otis's failure to install a counterweight guard.   He claims that Otis is liable for that defect unless the alteration of the elevator product by the removal of the wall by others was unforeseeable, a jury question resolved at trial in his favor.   We will conclude that on the undisputed facts of this case the question of superceding cause must be resolved in Otis's favor as a matter of law on the ground the removal of the wall was an act of extraordinary negligence which absolved Otis of responsibility for its antecedent failure to install a counterweight guard.¹

We cast the issue as one of extraordinary negligence for that is the mold into which this issue has been poured by the California cases.   As we will shortly see, the assignment of culpability for the injury to Lehr cannot be resolved as a matter of label for it requires a compound judgment assessing the responsibility of Otis for the safety of its elevator and the attendant risks for which the law makes it responsible.

We take as an introductory text the following quotation from Stewart v. Cox (1961) 55 Cal.2d 857, 13 Cal.Rptr. 521, 362 P.2d 345.  “The rules set forth in sections 442–453 of the Restatement of Torts for determining whether an intervening act of a third person constitutes a superseding cause which prevents antecedent negligence of the defendant from being a proximate cause of the harm complained of have been accepted in California.  [Citations.]  Under these rules the fact that an intervening act of a third person is done in a negligent manner does not make it a superseding cause if a reasonable man knowing the situation existing when the act of the third person is done would not regard it as highly extraordinary that the third person so acted or the act is a normal response to a situation created by the defendant's conduct and the manner in which the intervening act is done is not extraordinarily negligent.   (See Rest., Torts, § 447;  [citation].)  The fact that a third person does not perform his duty to protect the plaintiff from harm, either because he makes no effort or through his negligence does not succeed, is not a superseding cause.  (Rest., Torts, § 452.)”  (Stewart, supra, at pp. 863–864, 13 Cal.Rptr. 521, 362 P.2d 345 [citations and fns. omitted], emphasis added;  also see, e.g., Prosser & Keeton, Torts (5th ed 1984) § 44, pp. 301–319 [hereafter Prosser ].)  These general principles apply, as here, in a case in which the theory of liability is predicated upon an antecedent product defect rather than antecedent negligence.  (See Paverud v. Niagara Machine & Tool Works (1987) 189 Cal.App.3d 858, 861, 234 Cal.Rptr. 585.) ²

The parties marshall their arguments for and against the claim that the removal of the wall of the elevator shaft was extraordinarily negligent, employing the unvarnished rhetoric of foreseeability.   Otis concedes that in designing a product a manufacturer must take into account the reasonably foreseeable misuse of the product.   Otis argues that the misuse, here removal of the wall of the elevator shaft, is not reasonably foreseeable.   Lehr replies that it is common knowledge that buildings are remodeled and that with a product having an indefinite useful life, such as an elevator, the designer must foresee the removal of walls in such a remodeling operation.   Lehr relies upon the precept that “ ‘foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.’ ”  (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57, 192 Cal.Rptr. 857, 665 P.2d 947.)

Prosser offers a perceptive insight into the policy factors which govern the manner in which forseeability enters the analysis of intervening causes in the law of tort.  “The number and variety of causes which may intervene, after the negligence of the defendant is an accomplished fact, are obviously without any limit whatever.   In the effort to hold the defendant's liability within some reasonable bounds, the courts have been compelled, out of sheer necessity and in default of anything better, to fall back upon the scope of the original foreseeable risk which the defendant has created.   The question is always one of whether the defendant is to be relieved of responsibility, and the defendant's liability superseded, by the subsequent event.   In general, this has been determined by asking whether the intervention of the later cause is a significant part of the risk involved in the defendant's conduct, or is so reasonably connected with it that the responsibility should not be terminated.   It is therefore said that the defendant is to be held liable if, but only if, the intervening cause is ‘foreseeable.’  [¶] But here, as before, this overworked and undefined word covers a multitude of sins.”  (Prosser, supra, p. 302;  fn. omitted;  emphasis added.)

In a subsequent discussion, entitled “Unforeseeable Results of Unforeseeable Causes ” (id., p. 311), Prosser provides further illumination.  “The question is one of negligence and the extent of the obligation:  whether the defendant's responsibility extends to such interventions, which are foreign to the risk the defendant has created.   It is best stated as a problem of the scope of the legal obligation to protect the plaintiff against such an intervening cause.”  (Id., at p. 313.)

Lehr points to another portion of Prosser's discussion on the topic, entitled “Foreseeable Results of Unforeseeable Causes.”  (Id., at p. 316.)   He quotes from Prosser's discussion of the generic situation which occurs when “the defendant's conduct threatens a result of a particular kind which will injure the plaintiff, and an intervening cause which could not be anticipated changes the situation, but ultimately produces the same result․  [¶] In such a case, the result is within the scope of the defendant's negligence.   The defendant's obligation to the plaintiff was to protect the plaintiff against the risk of such an accident.   It is only a slight extension of this responsibility to hold the defendant liable when the danger created is realized through external factors which could not be anticipated.   An instinctive feeling of justice leads to the conclusion that the defendant is morally responsible in such a case, and that the loss should fall upon the defendant rather than upon the innocent plaintiff.' ”  (Ibid;  fn. omitted.)   Prosser sets out various cases and then makes an assertion which Lehr quotes as his conclusion:  “In all such cases the courts have taken refuge in the rule, stated to be well settled, that if the result is foreseeable, the manner in which it is brought about need not be, and is immaterial.”  (Id., at p. 317;  fn. omitted.)

Lehr does not quote the next sentence of Prosser's discussion:  “Yet there are other cases in which it seems equally clear that the defendant should not be liable.”  (Ibid;  fn. omitted.)   Nor does Lehr advert to the class of cases within this discussion which we find most analogous to this case.   “The other group of cases involve the situation in which a third person fully discovers the danger, and then proceeds, in deliberate disregard of it, to resell, pass on to employees, or continue to make use of a defective chattel bought from the defendant, or otherwise to inflict upon the plaintiff the danger which the third person has discovered.   Again the explanation appears to be that the responsibility is shifted, as it would be if the third party were notified of the danger in advance, and then elected to proceed.   Again, however, there will be situations of extreme danger, or special relations, in which, as a matter of policy, the defendant will not be allowed to shift the responsibility, and intervening discovery of the danger will not relieve the defendant.”  (Id., at pp. 318–319.)   When the intervening cause is the negligent conduct of a third person that exhibits full awareness of the danger involved it is the sort of “extraordinary negligence” that counts as a superceding cause.  (See Stewart, supra, 55 Cal.2d at p. 865, 13 Cal.Rptr. 521, 362 P.2d 345.)

In this case the intervening negligent conduct in removing the wall of an elevator shaft and failing to properly barricade the breach could not have been accomplished without awareness that uncontrolled access to the elevator hoistway presented a high degree of danger to those workers who might avail themselves of that access.   In the circumstances of this case this conduct amounts to extraordinary negligence.   On this ground we distinguish Thomas v. General Motors Corp. (1970) 13 Cal.App.3d 81, 91 Cal.Rptr. 301, where removal of a rubber bead by the user of a washing machine left the window of a washing machine susceptible to failure thereby causing injury.   The court said that a defect in design encompassed the ease and possibility of negligent removal of the bead.  “In the event the jury had been properly instructed, it could have concluded that the bead was missing because an inferior rubber material had been used in making the bead, or that the bead had not been properly installed in the first instance, or that irrespective of the cause of the bead being missing, a safe plan or design would have placed the ring on the outside of the door where its absence could have been readily noted by operators, users and customers.”  (Id., at p. 90, 91 Cal.Rptr. 301.)

Thus, the foreseeability to which the court in Thomas, supra, addressed its attention was a foreseeability of subsequent misuse in the use of the product that could have been addressed by its proper manufacture.   But if the subsequent misuse is an extraordinarily dangerous misuse, liability does not attach for it is the kind of subsequent, intervening misuse which the manufacturer should not reasonably be expected to anticipate in the design process.   Lehr was injured because of such extraordinary intervening negligence.   Otis cannot be expected to design an impregnable elevator shaft.   The anticipation of breach of the shaft in the course of reconstruction of the building in which the elevator is housed, though in one sense foreseeable, would impose responsibility upon the manufacturer for an unlimited and potentially bizarre set of “foreseeable” hazards beyond its control.

But a manufacturer can be expected to anticipate and safeguard against the foreseeable hazards of normal entry and use of the elevator shaft.   That requires consideration of the maintenance uses to which the elevator ordinarily would be put.   Otis did take account of these risks and provided a dual system of safeguards limiting access to the elevator hoistway in ways which would normally limit access to persons with experience in and control over the use of the key system and would normally disenable the elevator from movement.   If there had been no breach in the integrity of the elevator hoistway walls, the only reasonably likely means of entry that Lehr would have used would have been the prescribed means requiring employment of the key access system.   In such an entry it is exceedingly unlikely that the accident in this case would ever have occurred.   The key access system would have prevented the car from moving, hence, prevented the counterweight from moving unless (1) Lehr failed to turn off the stop switch prominently displayed to one entering through the door and (2) someone operated the spring-loaded switch in the doorway while Lehr was in the elevator shaft.   In evaluating the claim of liability for product defect we must consider the product as a whole, i.e., in view of the multiple safeguards built into its design and risks to which they are directed.  (Cf. Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 746–747, 144 Cal.Rptr. 380, 575 P.2d 1162.)

Lehr seeks to characterize this case as a case of foreseeable results of unforeseeable causes, i.e., one where the claimed misconduct of defendant risked a certain kind of harm “from any one of several possible sources” (Prosser, supra, p. 316) and the plaintiff suffered that kind of harm in a very unlikely manner.   The moral impulse to impose liability is founded on the premise that the defendant has wrongly exposed a class of “foreseeable” persons to a risk of personal injury.   It is then unjust to allow the defendant to complain that this plaintiff encountered the hazard in a very unlikely manner.   The plaintiff is permitted to put himself in the shoes of one who encountered the hazard in a more usual manner.   But here the aggregation of risks in this way is inappropriate.

Implicitly, Lehr's theory looks to a dominant or usual class of persons to whom defendant had a duty grounded upon foreseeability of harm.   That class of persons is those who come in contact with Otis's product in the ordinary way, i.e., those who entered the hoistway through the doors.   But the danger presented by the alleged product defect of lack of a rear counterweight screen is one that an ordinary entrant into the hoistway simply would not face because of the guard presented by the key access system.

Of course, one might thwart that guard in a number of ways.   However, such thwarting either involves esoteric elevator expertise, active misconduct (forcing the door), or another highly unlikely scenario of negligence (activation of the key in the doorway after entry).   Nor is it appropriate to infer backward from the existence of the ANSI standard for counterweight guards that one who entered the shaft through the door is ordinarily subjected to a substantial risk of being struck by the counterweight.   The standard is ambiguous because the term open side is undefined.   Was the rear side of the counterweight “open” in light of the fact the space between the counterweight rails and wall permitted access by a suitably thin and agile person?   More importantly, the requirement of guarding is not necessarily attributable to a perceived need for more protection than that afforded by the key access system.   Elevator service personnel are required to observe the movement of the apparatus from inside the shaft.   However, this risk of harm in this circumstance does not extend to one, like Lehr, who would have neither the motivation nor means to override or avoid the safeguard of the key access system.

In sum, this is not a case like Paverud, supra, where the kind of harm that occurred might reasonably be supposed to have occurred even if the guard (of the wall of the elevator shaft) had not been removed.  (See 189 Cal.App.3d at pp. 861–862, 234 Cal.Rptr. 585.)   The removal and failure to restore the guard of the elevator shaft wall was, as a matter of law, extraordinary negligence within the meaning of Stewart, supra.

Nor would the characterization of those shortcomings as failure of a third person to perform his duty to protect plaintiff dissuade us from the view that this is a case of superseding cause.   It is true that Stewart, following the Restatement of Torts section 452, asserts that such a shortcoming is not a superseding cause.  (55 Cal.2d at p. 864, 13 Cal.Rptr. 521, 362 P.2d 345.)   However, the rule of the Restatement is a generality that addresses the ordinary situation.   It does not address the unusual case present here.   The limitation of the rule is shown by the inclusion of a caveat added to the formulation in the Restatement Second of Torts.

Section 452, subdivision (2) provides:  “Where, because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor's negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause.”   Comment d to section 452 explains the provision.  “Subsection (2) covers the exceptional cases in which, because the duty, and hence the entire responsibility for the situation, has been shifted to a third person, the original actor is relieved of liability for the result which follows from the operation of his own negligence.   The shifted responsibility means in effect that the duty, or obligation, of the original actor in the matter has terminated, and has been replaced by that of the third person.”   Ordinarily the exception applies where responsibility has been shifted by contract.   (Rest.2d Torts, § 452, com. e.)   However, “[e]ven in the absence of any contract or agreement, the circumstances may be such that the court will find that all duty and responsibility for the prevention of the harm has passed to the third person.   It is apparently impossible to state any comprehensive rule as to when such a decision will be made.   Various factors will enter into it.   Among them are the degree of danger and the magnitude of the risk of harm, the character and position of the third person who is to take the responsibility, his knowledge of the danger and the likelihood that he will or will not exercise proper care, his relation to the plaintiff or to the defendant, the lapse of time, and perhaps other considerations.   The most that can be stated here is that when, by reason of the interplay of such factors, the court finds that full responsibility for control of the situation and prevention of the threatened harm has passed to the third person, his failure to act is then a superseding cause, which will relieve the original actor of liability.”  (Id., com. f.)

Essentially for the reasons already given, the failure of those in control of the building to prevent harm to Lehr by maintaining the structural guard of the elevator shaft wall was a superceding cause within the caveat of section 452, subdivision (2).   The obvious grave danger presented by removal of a shaft wall of an operating elevator, the relationship between the owner of the premises and the manufacturer of an elevator that must necessarily be integrated with the building structure, and the implausibility of designing a non-dangerous elevator without “permanent” walls impel shifting responsibility.  (See generally, Meuller v. Jeffrey Mfg. Co. (E.D.Pa.1980) 494 F.Supp. 275.)   Under either characterization of the nature of the case, the failure to maintain the barrier wall was a superceding cause of Lehr's injury as a matter of law.  (See generally, Annot., Products Liability:  Elevators (1981) 7 A.L.R.4th 852, 871–873.)

“From its inception ․ strict liability has never been, and is not now, absolute liability.   As has been repeatedly expressed, under strict liability the manufacturer does not thereby become the insurer of the safety of the product's user.”  (Daly v. General Motors Corp., supra, 20 Cal.3d at p. 733, 144 Cal.Rptr. 380, 575 P.2d 1162.)   Upholding liability in the circumstances of this case would take the doctrine of strict products liability into the realm of absolute products liability.

The judgment is reversed with directions to enter a judgment in favor of defendant Otis Elevator Company.   Otis Elevator shall recover its costs on appeal.

FOOTNOTES

1.   The roles of court and jury in resolving an issue of superseding cause are set forth in Restatement Second of Torts section 453.   Comment b to that provision provides:  “If the facts are undisputed, it is usually the duty of the court to apply to them any rule which determines the existence or extent of the negligent actor's liability.   If, however, the negligent character of the third person's intervening act or the reasonable foreseeability of its being done (see §§ 447 and 448) is a factor in determining whether the intervening act relieves the actor from liability for his antecedent negligence, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was negligent or foreseeable, the question should be left to the jury.”   In this case, given the undisputed facts, there is no room for a reasonable difference of opinion whether the intervening act was negligent or foreseeable once the pertinent legal criteria have been identified.   Hence, the question is one of law, i.e., a matter for the court to decide.

2.   A contrary implication might be drawn from the assertion in Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56, 148 Cal.Rptr. 596, 583 P.2d 121, “that product misuse was a defense to strict products liability only when the defendant proved that an unforeseeable abuse or alteration of the product after it left the manufacturer's hands was the sole reason the product caused an injury.  (See Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 550–551 [138 Cal.Rptr. 705, 564 P.2d 857];  Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 126 [104 Cal.Rptr. 433, 501 P.2d 1153];  Self v. General Motors Corp. (1974) 42 Cal.App.3d 1, 7 [116 Cal.Rptr. 575].)”  However, neither Campbell nor the authorities it relies upon expressly address the question of supervening cause in the context of products liability.   The cases hold only that product misuse that is a cause of an injury does not necessarily afford a defense to liability predicated upon a product defect that is a conjoint cause of the injury.   The cases do not hold that product alteration or misuse can never amount to superseding cause.

BLEASE, Associate Justice.

EVANS, Acting P.J., and DEEGAN, J.*, concur.