Practice point: Defendant's motion to dismiss was denied in this action based on plaintiff's fall upon stepping into an elevator that had misleveled about 1½ to 2 feet. It is undisputed that the misleveling condition was caused by defective level up, level down, and door zone relays, which were replaced after the accident.
Plaintiff raised a triable issue of fact as to whether
defendants had constructive notice of the misleveling condition, or with
reasonable care could have discovered and corrected it, by
submitting the affidavit of an expert who reviewed defendants'
repair tickets and concluded that they revealed conditions related to
the elevator's leveling function. The affidavit, which was not speculative, was sufficient to refute defendants' proof of the absence of
prior misleveling problems.
Student note: An elevator company that agrees to maintain an elevator may be
liable to a passenger for failure to correct conditions of which it has
knowledge, or failure to use reasonable care to discover and correct a
condition which it should have found.
Case: McLaughlin v. Thyssen Dover El. Co., NY Slip Op 03440 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: Giving effect to a forum selection clause.