|ELEVATOR ACCIDENT EXPERTS
ESCALATOR ACCIDENT EXPERTS
CONSTRUCTION HOIST ACCIDENTS
A FEW WORDS ABOUT OUR SENIOR CONSULTANT PATRICK CARRAJAT
Mr. Carrajat has spent his entire working life
in the elevator industry beginning as an
apprentice in 1961 while attending Long
Island University. In 1963 he joined the
family elevator consulting business while
completing work on a B.A. Degree in History
and two years of Post-Graduate study in
Constitutional Law. His elevator career has
included being Chief Operating Officer of a
major elevator service company, founding
of another major elevator service firm and
founder of the largest privately owned
elevator & escalator parts supplier in the
U.S. He has addressed many industry
groups and has conducted CLE classes for
members of the defense bar. His
publications include a featured article in
Elevator World and a has published a book
on the history of the American elevator
industry. He is married and enjoys Irish set
dancing, antique and special interest
automobiles and stamp collecting.
A VIEW FROM THE TOP
PRESENTATION AT THE UNIVERSITY OF MICHIGAN, JUNE 17, 2004
We live in an increasingly litigious society, our courts clogged with bona fide and bogus lawsuits. Our
legal system permits attorneys to take cases on a contingency basis meaning that they will front the
costs associated in litigation in return for a 1/3 interest in its outcome. The benefit of this system is equal
access to legal redress for those without the financial means to pursue monetary compensation. The
contingency fee system theoretically is self policing, most attorneys will not accept a contingency case
unless they believe there will be a positive result since it will be their capital and time that will be
expended. I wish to stress that the vast majority of personal injury attorneys adhere to the highest ethical
standards and do not accept cases unless they believe that the client has indeed been injured and that
the injury was the result of negligence on the part of someone other than the plaintiff.
I have served as an expert witness in more than 700 cases in the past 15 years and have testified in
court approximately 35-40 times, I have also been deposed 15-20 times. The purpose of my talk today is
to introduce you to defensive elevatoring, a necessity in our litigious environment and a subject that is
seldom addressed at the level where it can have the most impact. Simply stated most safety directors do
not have a background in elevator and escalator maintenance and cannot offer meaningful guidance in
Setting a program of defensive elevatoring may add a minor element of cost to your maintenance
program but the long range savings are significant. Most of the costs of litigation are apparent such as
increased insurance premiums and man hours lost to deposition or trial testimony. What is often
overlooked is the cost of searching files, obtaining records from third parties, photocopying of
documents, inspection of your equipment by experts and time spent with investigators and your
attorneys. Every hour lost to litigation is in reality two lost hours, since the time would have been spent on
Your involvement in a lawsuit can start in several ways, the most common is being sued directly by a
person claiming to be injured on your elevator or escalator, that person is known as the plaintiff, you are
the defendant in this scenario. You may also be brought into a lawsuit by another defendant instituting a
third party action against you or you bringing an action against them. In the first instance you are called
the third party defendant, in the second the third party plaintiff. Other lawsuits that may involve you are
contested terminations, discrimination suits, assault or rape cases occurring on or in equipment,
compensation claims, cases where you institute suit to recover damages for defective products sold to
you and suits against contractors for failure to perform services. You may also be involved in suits
involving contractual or payment issues.
Defensive elevatoring means taking a proactive role in preventing the causes of litigation, primarily the
accidents that result in actual injuries to passengers. It also means documenting the work performed
prior to any alleged accident and the condition of the equipment immediately after the alleged accident. It
further means having policies and procedures in place that will minimize your exposure to any form of
THE FIRST LINE OF DEFENSE
In the vast majority of cases I have been involved in the record keeping of the elevator maintenance entity
has been a major issue. Failure to document routine maintenance, repairs and modernization tasks in
detail can be a major factor in forming a juror’s opinion of whether the work was performed, when it was
performed and the quality of the work.
The most effective means of documenting work is a logbook kept in the machine room where every task
is recorded in detail. Each entry should include the date, time, exact nature of work performed and the
name of the person performing the work. Other means of documentation include a maintenance task
check chart such as those used by some major manufacturers, time tickets and computerized logs. It is
my absolute opinion that the logbook is the best since it presents entries in the workers own hand and
represents a continuous record of all work. The check chart, it can be alleged can be filled in at any time,
time tickets are lost or filled out poorly and computerized logs often condense and change the meaning
of what the worker actually says to the data entry person. Secondary benefits of a detailed log book are
the creation of a track record for the individual elevator and a reference guide if technicians change.
ACCIDENT PREVENTION BY ACCIDENT TYPE
The most common accidents are trip outs and falls caused by mis-leveled elevators. The cause of such
mis-levelings are pretty much known to us and include excessive brake slide on AC machines, selector
problems, loss of positioning in the shaft way, inductor problems, compounding problems and Radio
Frequency Interference on certain solid state-based controls. The basic means of preventing mis-
leveling is obvious, preventive maintenance and prompt correction of problems that do and will arise
even on well maintained equipment.
In all mis-leveling lawsuits the plaintiff must prove that the defendant knew or should have known that the
elevator mis-leveled in the past and failed to correct the problem to prevent a recurrence. This
component of their case is called Notice and is a critical issue in their establishment of a prima facie
case of negligence since an elevator maintenance entity cannot correct a problem if they are unaware of
Preventing mis-leveling lawsuits requires extreme vigilance and requires us to think beyond our usual
boundaries. Observation of a mis-leveling does not require any special training and we should enlist
staff in buildings to report any mis-leveling, no matter how slight to the elevator shop. Aside from
passenger entrapments correction of the mis-leveling should be the top priority, mis-levelings seldom
correct themselves and each trip made by a mis-leveled elevator is one more exposure to a lawsuit.
Whenever possible, equipment that repeatedly causes mis-levelings should be replaced. VVAC and
VVVF controls are vastly superior to the older AC machines and the cost of retrofit has become relatively
cost effective. Hall effect shaftway selectors provide a greater degree of accuracy in both stopping and
leveling and are inexpensive to install. Perhaps the least costly means of protection is the door restrictor
which can be set to prevent the doors from opening if a mis-leveled condition exists. Control systems
should be checked to verify that a door zone circuit is in place (there is no door zone on older
Westinghouse equipment as an example) and that it is functioning. Pre-opening of slide doors should
be eliminated, but the minimal time savings are not worth the risks involved.
DOOR STRIKE CASES
The second most common cause of litigation is passengers being struck by car or shaftway doors.
The causes again are basically known to us, failure of the safety edge, electric eyes or detector to
function as designed; excess door closing speed, excess door closing force, improperly adjusted checks
on swing doors and other similar problems. The preventive measures include proper maintenance of
the components, testing of door closing speed and force and repair or replacement of problem units. The
proactive manager will enlist non-technical people to check that the doors will re-open when the safe
edge is contacted, the electric eye is crossed or the detector is closing.
When replacing a detector it must be a fail to function unit which disables the elevator in case of a
detector failure. Early detector units such as the Otis ‘R’, the Schindler ‘S’
and the original UltraEdge were solid state recreations of the Otis balance bridge detector and often had
a very limited detection field which could result in passengers being stuck despite the fact that they were
detected. Virtually all units today employ advanced LED-BASED technology and provide screen type
coverage across the entire opening. Other advances have included 3D units that can sense the
presence of a passenger in the opening and prevent them being stuck by either the car or hoistway door.
Adoption of 3D technology is highly recommended in installations with substantial traffic.
The defense of door strike cases rests on two issues, first the documented maintenance and secondly
the fact that the plaintiff must be able to establish notice that the defect existed for some time prior to the
alleged accident and that proper repairs were not made. Recent Court decisions have stated that since
doors operate in a public environment and are subject to vandalism they are not within the exclusive
control of the elevator maintenance entity or property owner. The net effect of this is to eliminate one of
the three requirements for a plaintiff to receive a Res Ipsa Loquitur charge in a jury trial. Briefly Res Ipsa
Loquitur is a legal term that translates from the Latin as ‘the thing speaks for itself’ and requires three
elements. The first element is that the occurrence is something that does not happen in the normal
operation of the instrumentality absent negligence, second the instrumentality must be under the
exclusive control of the defendant(s) and lastly the plaintiff cannot have caused or contributed to the
occurrence. The basis is found in English common law and has developed into a major factor in elevator
The third most common form of accident includes high speed stops due to governor malfunction, motor
control faults, overloads or fuses tripping while the elevator is in motion, loss of position in the shaftway,
selector failure and runaway conditions.
The basic preventive measures again are based in documented maintenance, proper repair or
replacement of major components and testing of governors, buffers and safeties at Code mandated
The injuries that result from abrupt stopping are often serious and if a pattern of previous problems
establishes notice there is seldom a viable defense.
The fourth most common type of accident results from improper removal of passengers from stalled
The only effective method of prevention is training of both elevator and security personnel in the proper
methods of passenger evacuation as mandated by the ASME/ANSI A17.4 Code. In several cases I have
seen when a car was 3 feet above the floor the passengers were instructed to jump out of the elevator
with resultant knee injury. In another case a ladder was lowered into the elevator and passengers
removed despite the presence of a side emergency exit.
Passengers often will elect to extricate themselves and this normally occurs when an in car
communication system or alarm bell does either not exist, malfunctions or there is no response to the
passenger’s calls. The best method to avoid passengers self extricating is a working communication
device and a person advising them that they are not in any danger and keeping them informed of when
help will arrive to free them. In addition a door restrictor device can prevent passengers from opening the
car door when the car is out of the leveling zone.
WORKER’S COMPENSATION CLAIMS
Another frequent encounter with the judicial system involves claims by workers that they were injured on
the job. While it is true that many of these claims are unavoidable the frequency and severity of on the job
injuries can be limited by pro active measures which include more than simply issuing safety
equipment. Elevator World has available the Field Employees Safety Handbook and it is a valuable
resource, every new hire should receive a dedicated copy and sign a statement that they have read and
will abide by the safety procedures in the Handbook. The Handbook covers all essential topics and
utilizing its recommendations will reduce the frequency of on the job accidents. Issuance of proper safety
devices should also be documented along with training in their correct usage. It is not enough to issue
safety gear, the supervisor must periodically check to insure that it is being used and used properly. In
addition to safety equipment such tools as wire jumpers, door jumpers, drop & lunar keys and other such
devices should be issued and numbered with periodic inspection. Workers must also be trained in Lock-
Out/Tag Out procedures to assure
that they or other workers are not injured. If a worker is given safety equipment, instructed in it’s use and
fails to use it you as the employer has what is known as a recalcitrant worker defense which can save
you from significant exposure in a worker’s compensation or personal injury lawsuit. It is generally true
that an employee cannot sue their employer but many states have grievous injury statutes that permit a
direct suit based on the severity of the injury and the role played by the employer in causing or permitting
an unsafe condition to remain unabated. Items provided to employees such as ladders, if known to be
defective can result in serious legal consequences for employers in some jurisdictions.
These suits take many forms and result from discrimination based on race, sex, sexual orientation, age
or other basis. Your function in preventing these lawsuits is to closely monitor the behavior of your staff
and yourself on sensitive issues. A joke, cartoon or story that to some will be funny can be insulting to
others if the group they are a member of is the butt of the humor. Promotions and overtime assignments
should always be awarded on seniority, capability or some other basis that is justifiable.
Very few employees who are fired feel that they deserved to be terminated. Protecting yourself from these
types of suits requires a thorough understanding of your employers human resources structure. The
best advice when terminating an employee is to document to the employee in writing what problems you
find in their work such as lateness, absences, sloppiness, work quality or failure to perform tasks as
assigned. Human resources should effectuate any termination thus depersonalizing the process.
This category probably seems out of place but it is very much a concern for an elevator maintenance
entity. When an assault takes place in an elevator and there was no corner mirror present it will be an
issue. When an alarm bell is found to be non functioning it will be an issue.
If an in-car communication system is not working, it will be an issue. When the elevator can be stopped
between floors and held there it may be an issue. Protecting yourself again is common sense, replace
missing mirrors and make frequent checks to assure that alarm bells and communication systems
This type of lawsuit typically develops when you find that a product sold to you does not function as
promised. It can be something as simple as a worm-gear that lasts a few months or as complex as a
control system that causes constant service outages. To assure that you, as the plaintiff in this case, are
adequately prepared to pursue litigation to a successful conclusion you must have a documented case
that the item did not perform as promised and that you have given adequate notice to the seller to repair
or replace the product. Documentation typically includes copies of the original sales literature or
proposal; copies of Certified Mail complaint letters and all other written communications between the
parties; reports of the reasons for the product failure from outside consultants; copies of any independent
testing performed on the product and copies of all work tickets for repairs or callbacks caused by the
product. This type of lawsuit is one of last resort and most manufacturers when notified of a product
problem will repair or replace it if they feel the product, not the installation or application are at fault.
This type of lawsuit occurs when a service vendor fails to comply with the provisions of a service
agreement or performs inadequately. Again, in this case you would be the plaintiff and proper
documentation will be critical if a suit is to be brought to a successful conclusion. Documentation should
include copies of the original contract and any amendments; copies of all Certified Mail complaints and
other written communications; minutes of any meetings held with the contractor; copies of outside
consultants reports; copies of logs documenting poor performance and photographic evidence if
applicable. Again, as with product lawsuits most service providers are more interested in keeping your
business and a lawsuit will be a last resort.
NOTES ON THE LAW
First, I am not a lawyer and the presentation given here today is from the layman’s perspective and
should be understood from that perspective.
Second, on any issue discussed today you should seek competent legal advice to confirm that my
opinions are consistent both with the facts of your case and prevailing legal standards in your jurisdiction.
Third, your involvement in a lawsuit is never a pleasant experience and to assure that fairness is
achieved your obligation is to act honestly throughout the process. When asked to assemble job records
include all time tickets, even the ones that seem to hurt you. When you are questioned under oath at trial
or in a deposition or examination before trial answer all questions honestly but do not volunteer
information that is not asked of you. If you receive a Subpoena Duces Tecum bring all of your records with
you to Court or the site of the deposition.
Fourth, the best result of any lawsuit is a mutually agreed upon settlement. If you feel that your entity has
liability for an injury tell that to your attorney. The last thing any attorney wants is surprises, and they can
only serve you properly when all meaningful facts have been disclosed to them.
Fifth, drop the attitude toward attorneys, most are dedicated to their profession and work diligently for their
clients whether plaintiff or defendant.
EXPLANATION OF LEGAL TERMS USED HEREIN
The party being sued.
A part of the discovery process that involves asking of questions to persons who are injured in an
accident, the spouse or children of the injured party, witnesses to the accident, employees of defendants,
medical experts, other expert witnesses and anyone else with knowledge or possible knowledge of the
facts of the case. Depositions are typically taken at a law office but may be conducted by telephone and in
some cases videotaped when the witness is in poor health or will not be available at time of trial.
The process of obtaining information pertinent to the case. Discovery items include medical records,
work records, financial records, accident reports, equipment records, time tickets, violations, inspection
reports, depositions, non party and party witness statements, video tapes, photographs, emergency
service or police reports and any other items germane to the case.
EXAMINATION BEFORE TRIAL (EBT)
A term used in some jurisdictions for a Deposition.
A person called as a witness for the plaintiff or defendant who possesses specialized knowledge and
whose testimony will explain to the jury and judge a matter not normally within their knowledge and thus
assist them in forming opinions. Expert witnesses range from medical doctors to engineers and from
economists to vocational rehabilitation experts. Experts differ from other witnesses in that they are paid
for their time spent on the case and at trial and may form opinions based on the facts and their
experience in interpreting such facts.
NON PARTY WITNESS
A person who was a witness to an occurrence but is not a party to the lawsuit.
The party who brings suit.
RES IPSA LOQUITUR
A legal term from the Latin meaning “the thing speaks for itself.” Res Ipsa is often used by Plaintiffs
when the elevator, escalator or other device is within the exclusive control of the defendants and the
accident is not something that normally occurs without negligence, when the occurrence is something
that does not occur in the normal operation of the instrumentality (meaning an elevator, etc.) and where
the plaintiff did not cause or contribute to the occurrence.
Any person called to give testimony in a deposition or trial.
Allow me to thank you for your courtesy today and the opportunity to speak with you. I am always available
to speak with you Pro Bono (there’s a nice legal term meaning FREE) about any issues involving elevator
and escalator accident prevention. I may also be retained to work with your department or your loss
prevention staff to set up and monitor an in-house safety program or to assist your counsel in defense of
lawsuits brought against you.
|ATTORNEY JOEL ROBINSON
(LEFT) OF ROBINSON &
YABLON WITH EXPERT