Elevator / Escalator Injuries

Liability of Elevator and Escalator Owners/Operators

Elevators and escalators are complex pieces of equipment that are prone to malfunction for many different reasons, most of which are related to normal equipment wear and tear, and not due to anyone's negligence. In the absence of negligence, there usually is no viable claim for personal injuries. Consequently, in elevator/escalator incidents that cause serious injuries, it is important for the injury victim to hire a lawyer who knows the causes of typical elevator/escalator malfunctions, knows where to look and how to gather the evidence needed to prove that an elevator/escalator malfunction was caused by negligence, and has the financial and time resources necessary to fight the large corporations and their large law firms kept on retainer to fight and fight and spend and spend until the elevator/escalator injury victim and his/her lawyer gets exhausted and gives up. The lawyers at Kraft Palmer Davies, PLLC have successfully litigated many elevator and escalator cases, including one elevator case that won the largest known elevator injury verdict obtained against an elevator owner in the United States.

In Washington State, owners/operators of elevators and escalators are “common carriers” with the duty to use the highest degree of care. They are not held to the common law premises liability standards that premises owners otherwise owe to trespassers, licensees, and invitees. At trial, the jury will be given the following instruction concerning the common carrier's duty to passengers using its conveyances:

“A common carrier has a duty to its passengers to use the highest degree of care consistent with the practical operation of its type of transportation and its business as a common carrier. Any failure of a common carrier to use such care is negligence.”

Because virtually all owners/operators of elevators employ elevator maintenance companies – independent contractors – to maintain, service, and repair their elevators, and these maintenance companies would have liability for any negligently performed maintenance, service, or repair that caused a passenger to be injured, the liability of elevator owners/operators typically boils down to acts of omission. Those acts are as follows:

Failure to have maintenance performed;
Failure to heed the maintenance, service, and/or repair recommendations of its elevator maintenance contractor; and
Failure to promptly report elevator problems to the elevator maintenance company.

To establish that problems existed that required attention, or were not timely reported to the elevator maintenance company, an injury victim's lawyer needs to locate eyewitnesses who can testify that the elevator in question had been malfunctioning in the same way as it malfunctioned and injured plaintiff, and that the elevator owner/operator knew or should have known of the prior malfunctions, shut down the elevator, and called the elevator maintenance company. This is likely to require the injury victim's lawyer to canvas businesses or residents in the building. More often, the key to finding out what went wrong with the elevator, who was negligent, and who had notice lies in the paper trial that exists in every elevator case.

Applicable Regulations

Pursuant to RCW § 70.87.020 -.190, the Washington State Legislature has vested the responsibility and authority for elevator safety in the Department of Labor and Industries [DLI]. DLI has promulgated its rules, regulations, and procedures for passenger elevators in WAC § 296.96 et seq. In a nutshell, it has not created its own rules and regulations, but periodically adopted national standards for elevators that have been promulgated in the American Standard Safety Code and, since 1972, passed by the American National Safety Institute. DLI grants permits for the installation and renovation of elevators, and performs initial inspections – and follow-up inspections – on an annual basis before giving the owner/operator a permit to use the elevator. In limited instances, DLI has tendered its authority to municipalities such as the City of Seattle, by and through the Department of Construction and Land Use. The municipal codes for local authorities adopt precisely the same national standards as DLI.

Though these government inspections tend to be cursory, the agencies maintain a complete record concerning the history of the installation and annual inspections for each elevator in the state. Thus, the injury victim's first act should be to order the file for the elevator in question from the inspecting authority. This file will provide information concerning the elevator's make, model, and manufacturer; the elevator's installation and subsequent remodeling dates; reports of any life-threatening injuries sustained in a malfunction (which are supposed to be reported to the agency, but frequently are not reported); the identity of the maintenance companies involved; and annual reports concerning the condition of the elevator, any repairs required by the agency, and documentation from the owner/operator/maintenance company proving that the required repairs were completed.

It is important to note that because elevator regulations are largely written by the elevator industry, they are minimum standards, and universally have one intentional and critical flaw – the regulations that apply to any particular elevator are those that were "state of the art" and in force at the time of the installation of the elevator. Thus, no matter how old and decrepit an elevator gets, it is not subject to any current safety regulations that may require modern safety devices or features. However, if an elevator owner/operator makes even minimal upgrades to its elevator, it is required to do a complete – and expensive (perhaps $200,000 or more)—remodel of the elevator so that it complies with the newest safety regulations.

The result of this wrong-headed system is that it creates a large financial incentive for the elevator owner/operator to choose not to upgrade or modernize its elevator. If it merely maintains the elevators "as is," modern safety regulations will never apply. In the context of elevators in modern office buildings, elevator owners/operators upgrade their elevators in order to keep tenants that pay dearly for every square foot. But in the case of older apartment buildings (where the rent is lower than for new buildings) and public housing (where the government does not budget a lot of money), elevators tend to be older and thus more prone to frequent malfunctions. Be aware that although they will not volunteer it, even elevator experts for the defense will admit that the useful safe life of an elevator is 25 to 30 years - at which time it should be remodeled or replaced.

The elevator maintenance companies, however, tend to document their recommendations to the owner/operator concerning the need for upgrades, modernization, or increased maintenance. This is primarily because the elevator maintenance companies are almost always a defendant in elevator malfunction cases, and they practice defensive documentation. But it is important to be aware that (as will be shown below) the maintenance companies can make a lot of money charging by the hour for repairs, which are not covered under the maintenance contract – hence, the paper warnings are not likely to have been delivered as effusively in person. Obtaining the maintenance company's file and the file of the owner/operator will be necessary to discover these recommendations. If it turns out that the elevator owner/operator failed to heed the recommendation of the maintenance company, and that failure proximately caused the elevator to malfunction and injure you, liability will attach to the owner/operator.

As mentioned before, these cases are common place – in class A, big city high-rises, a bank of elevators and escalators can be expected to malfunction on a weekly basis, even absent negligence. It is when a malfunction is allowed to continue because an elevator/escalator is left in use without being repaired, or because a repair is not properly performed, that liability is most likely to be found. Because elevator/escalator cases are expensive, hard fought, and highly technical, such cases should only be brought when serious injuries are involved, and then only by a personal injury lawyer with experience handling such cases.