Johns Hopkins Hospital v. Correia

ELDRIDGE, J. We granted the petition for a writ of certiorari in this tort action in order to review the standard set forth in numerous Maryland cases that owners or operators of elevators owe their passengers the highest degree of care and diligence practicable under the circumstances to guard against injury. ⁵¹¹ I. On August 30, 2000, respondent Jane Correia was a passenger in one of the elevators located in Johns Hopkins Hospital when a mechanical defect caused the elevator to come to a jarring halt. Mrs. Correia immediately complained of back pain and was taken to the hospital’s emergency room. She eventually was required to have surgery on her back and hip for the injuries sustained when the elevator malfunctioned. Almost three years later, Mrs. Correia and her husband filed a complaint in the Circuit Court for Baltimore City against the owner and operator of the elevator, Johns Hopkins Hospital and Johns Hopkins Health Systems Corporation (hereafter collectively referred to as “Johns Hopkins”).

Also named as a defendant was Schindler Elevator Company, an elevator maintenance company with which Johns Hopkins had contracted, about two months before the accident, to service and maintain the elevators. Johns Hopkins did not file a cross-claim against Schindler. The basic allegation lodged against the defendants was that their negligent failure to heed numerous warnings regarding the malfunctioning elevator led to Mrs. Correia’s injuries. Evidence presented at trial tended to support this allegation, indicating that the defendants were alerted to the worn condition of certain elevator parts and failed to respond in a diligent manner.

After the evidentiary portion of the trial, the jury was instructed as follows: “The owner of a passenger elevator, in this case, Johns Hopkins is the owner of the passenger elevator, is bound to exercise to the highest degree ... care and skill and diligence, practicable under the circumstances to guard against injury to individuals riding on these elevators. This rule of law applies to the owner of the elevator only. It does not apply to the service company Schindler.” The jury was also advised that “[e]ach defendant is entitled to a separate consideration.” The verdict sheet reflected this separate consideration by asking the jury to consider indepen ⁵¹² dently whether Schindler or Johns Hopkins had acted negligently. Counsel for Johns Hopkins objected to the jury instruction on the ground that the higher standard of care should apply only to attendant operated elevators, not to passenger operated elevators like the one involved in the incident with Mrs. Correia.

He argued that the case relied on by the trial judge to fashion the instruction, O’Neill & Company v. Crummitt, 172 Md. 53 , 190 A. 763 (1937), was “factually very distinguishable” because: “In that case, which was 68 years ago, there was actually a person, a human being, in the elevator operating the elevator, having the elevator go up and down. And the court at that time saw fit to treat that circumstance as the elevator owner, the elevator operator, was as a common carrier, and, therefore, posed a duty of the highest degree of care and skill and diligence practicable under the circumstances to avoid injury to the person in the elevator---- “The thing that distinguishes that, because this did not have individual human beings in the elevator operating [it], should be distinguished from a common carrier case, it’s not applicable on that basis to an automatic operation of elevators. I think it highlights, poses more duty on Johns Hopkins than it does on the elevator expert.” “I look at the evidence in the case, it is clearly shown, Hopkins, which it was its duty to delegate for legal purposes. They can certainly obtain other people who are experts to work on the elevators, and I think that is another basis for objecting to this instruction, and the reason why this instruction shouldn’t be given.” At no point did counsel for Johns Hopkins object to the reasonable care standard applied to Schindler or request that Schindler be subjected to a higher standard of care.

The Circuit Court decided that the heightened standard of care for elevator owners was “still good law” and overruled Johns Hopkins’s objections. The jury determined that Johns Hopkins was negligent, awarded Mrs. Correia $264,500, and jointly ⁵¹³ awarded Mr. and Mrs. Correia $35,500 for loss of consortium. The jury found that Schindler was not negligent. Johns Hopkins appealed to the Court of Special Appeals, arguing that, with respect to the heightened standard of care, previous Maryland cases were distinguishable and that, even if Maryland case law was not sufficiently distinguishable, the prior Maryland cases imposing a heightened standard of care upon owners and operators of elevators were “outdated” and “no longer appropriate.” (Appellants’ brief in the Court of Special Appeals at 8-9).

Johns Hopkins argued that it “should have been held to a standard of reasonable care.” (Id. at 13). The principal reasons underlying this argument were that “human attendants” hired and trained by elevator owners to operate elevators are no longer used, that now elevators are “automatic and ... operated by the passengers,” and that the owners of modern buildings, instead of being experts “in the inspection, maintenance, repair, replacement or safety of elevators,” hire independent contractors “to ensure that the elevators operated safely and effectively.” (Id. at 8-10). Johns Hopkins also raised in the Court of Special Appeals two evidentiary issues which were not included in the certiorari petition and, therefore, are not before this Court. The plaintiffs did not appeal the judgment in favor of Schindler Elevator Company.

Moreover, Johns Hopkins in the Court of Special Appeals raised no issue about the jury instructions with respect to Schindler or the judgment in favor of Schindler. The Court of Special Appeals affirmed the judgment of the Circuit Court, holding that the high standard of care reflected in the jury instruction was supported by several Court of Appeals decisions. Johns Hopkins v. Correia, 174 Md.App. 359 , 921 A.2d 837 (2007). The Court of Special Appeals held that there was “no principled reason why the duty owed to an elevator passenger should be reduced simply because of technological advances.” Johns Hopkins v. Correia, supra, 174 Md.App. at 378 , 921 A.2d at 849 . ⁵¹⁴ Johns Hopkins filed a petition for a writ of certiorari, presenting the following issues: “a.

Whether the Court of Special Appeals erred as a matter of law when it affirmed the trial court’s decision to instruct the jury that Johns Hopkins, the elevator owner, owed Mrs. Correia, the elevator passenger, ‘the highest degree of care and skill and diligence, practicable under the circumstances to guard against injury’?” “b. Whether the Court of Special Appeals erred as a matter of law when it applied a different standard of care— a higher standard of care—to Johns Hopkins, the elevator owner, than to Schindler Elevator Company ... the full-service elevator maintenance company?” The plaintiffs did not file a cross-petition for a writ of certiorari. This Court granted the petition, Johns Hopkins v. Correia, 400 Md. 647 , 929 A.2d 889 (2007), and we shall affirm. 1 II. The principle that elevator owners and operators owe a heightened standard of care to elevator passengers was explained by Chief Judge Alvey for the Court in Wise v. Ackerman, 76 Md. 375, 25 A. 424 (1892), a case involving a defective freight elevator.

In that case, Chief Judge Alvey distinguished between “an elevator [which] is erected in a factory or warehouse, and is intended to be used only for the purpose of carrying and transferring goods and materials,” and a freight elevator which also carries passengers. Wise v. ⁵¹⁵ Ackerman, supra, 76 Md. at 388-389 , 25 A. at 425 . The Court in Wise explained that, if a person decides to ride on a freight elevator which is intended to be used only for the purpose of carrying goods, that person “can only require of the defendant the use of ordinary care, either in the construction or operation of the machine.” Wise, 76 Md. at 389 , 25 A. at 425 . Chief Judge Alvey, however, then turned to the situation where employees were authorized to use a freight elevator for transportation (Wise, ibid.): “But an elevator is in many respects a dangerous machine, and though it may be primarily intended only as a freight elevator, yet, if the employees, in the course of their employment, are authorized or directed to use the elevator as means of personal transportation, the employer, controlling the operation of the elevator, is required to exercise great care and caution both in the construction and operation of the machine; so as to render it as free from danger as careful foresight and precaution may reasonably dictate.

Nothing short of this will excuse the defendant____” The Court of Appeals in Belvedere Building Co. v. Bryan, 103 Md. 514 , 64 A. 44 (1906), applied the principles of Wise v. Ackerman, supra, to a passenger elevator in a hotel. In Belvedere, a hotel guest was stepping out of an attendant operated elevator when the elevator abruptly went down, striking the guest on his back and hip and causing him to fall on top of the “rapidly descending or dropping elevator” car. The owner of the hotel appealed from a judgment in favor of the injured guest, and this Court affirmed. One of the issues before the Court was “the degree of care required in the operation of a passenger elevator,” Belvedere, 103 Md. at 533 , 64 A. at 49 .

After discussing and quoting from Wise v. Ackerman, as well as a California case cited in Wise , 2 the Court in Belvedere held ( 103 Md. at 535 , 64 A. at 50 , emphasis in original): ⁵¹⁶ “[Wjhen an elevator is used, under due authority, as a means of personal transportation, great care and caution is required, and nothing less will suffice to protect the operator. Ordinary care is not great care, and this case therefore is authority for holding that where an elevator is used as a means of personal transportation a higher degree of care than ordinary care is required in its operation. Whether the highest degree of care is required in such case would seem to be the only question left open for consideration under the language of that decision, and that question will now be considered.” The Belvedere opinion went on to hold that the highest degree of care is required, quoting with approval from a negligence treatise of that time 3 ( 103 Md. at 535 , 64 A. at 50 ): “‘For the same reason—a regard for human life—that common carriers are required to exercise the highest degree of care for the safety of their passengers, irrespective of any contract of carriage, a like degree of care is exacted of a landlord in transporting persons by elevator between the several floors of his building. He is therefore bound to use the greatest care, not only in providing, safe and suitable cars, appliances, and machinery for control, but also in managing these means of transportation.’ ” The Court in Belvedere continued by quoting with approval numerous other authorities taking the positions that there “ ‘is no distinction in law between the duties and liabilities of a carrier by elevator and one by railroad,’ ” that there is no situation “ ‘where the law demands a higher degree of care than in the construction and operation of passenger elevators,’ ” that owners or operators of passenger elevators have the same “ ‘legal status’ ” as “ ‘a common carrier,’ ” that the elevator owner or operator “ ‘is the bailee, so to speak, of human beings, and has their lives in his custody,’ ” that “ ‘no distinction can be drawn between vertical transportation and horizontal transportation,’ ” etc. Belvedere, 103 Md. at 536 - ⁵¹⁷ 539, 64 A. at 50-51 .

The Court then reiterated ( 103 Md. at 539-540 , 64 A. at 51 , emphasis in original): “The liability of the common carrier is not imposed because he is a common carrier, but because he is a carrier of passengers, because as Judge Cooley states it in Cooley on Torts, 2 ed. 768 and 769, ‘there are committed to his charge for the time the lives and safety of persons of all ages and of all degrees of ability of self-protection, and as the slightest failure of watchfulness may be destructive of life or limb, it is reasonable to require of him the most perfect care of prudent and cautious men as far as human foresight and care can reasonably go.’ The liability is not imposed upon the owner or occupant of real property as such, but irrespective of such ownership and occupancy and because he is engaged in the undertaking of running an elevator as a means of personal transportation, which Judge Alvey has said in Wise v. Ackerman requires a higher degree of care than ordinary care.” The Belvedere opinion, 103 Md. at 540 , 64 A. at 51-52 , concluded by quoting from Fox v. Philadelphia, 208 Pa. 127, 134-135 , 57 A. 356, 358 (1904): “ ‘The foundation of the rule for the protection of a passenger is in the undertaking of the common carrier which is to carry safely; but another reason for it is, that when the passenger commits himself to the carrier, he does so in ignorance of the machinery and appliances (as well as of their defects) used in connection with the means of transportation, and becomes a passive and helpless creature in the hands of the transportation company and its agents. For the same reason, this rule should be extended to those who operate elevators for carrying passengers from one story of a building to another. When they undertake to carry, they undertake to carry safely. If it is not their express agreement to do so, it is surely an implied one, and the condition of a passenger caged in a suspended car is one not only of utter ignorance of what has been done or ought to be done for his safety, but of absolute passiveness and pitiable helplessness when confronted with danger against ⁵¹⁸ which human knowledge, skill, and foresight ought to have guarded; and the rule has been so extended.’ The view thus expressed is in accord with our own, and we think it well grounded both in reason and authority.” The decision in the next elevator case to come before this Court, Owners’ Realty Co. v. Richardson, 158 Md. 367 , 148 A. 543 (1930), is most significant because the Court in that case applied the principles of Belvedere to an injury caused by a defective passenger operated automatic elevator.

The elevator was in an apartment house of six stories, owned by the defendant. The plaintiff was standing immediately outside of the elevator and was attempting to open the elevator door by use of a “knob” for that purpose, “but ... she had barely touched the knob when the door slammed back very rapidly, startling her, and catching her finger between the laths with such force as to swing her around,” Owners’ Realty Co. v. Richardson, supra, 158 Md. at 371 , 148 A. at 545 . There had previously been complaints about the rapid and sudden movements of the elevator door. In affirming a judgment in favor of the plaintiff, the Court, in an opinion by Judge Parke, indicated that the heightened standard of care was particularly applicable to a passenger operated automatic elevator {Richardson, ibid., emphasis added): “The defendant was engaged in the carriage of its tenants and their servants and visitors by means of an automatic elevator, which was operated by those using it without any assistance, direction, or supervision by the defendant.

It was an economical method to cast the burden of its operation upon those having occasion to go to and from the several apartments of the six storied building, but the knowledge of the defendant that it would be run by a number of persons, who would represent a wide range of age, experience, intelligence, and capacity, cast upon the defendant all the more care in the selection and maintenance of the mechanical device which was adopted for this general service. The rule approved by this court is that the landlord engaged in transporting passengers by elevators must exercise great care not only in their operation but in ⁵¹⁹ providing safe and suitable equipment. It is a rule which has its sanction in sound public policy, which exacts a high degree of care where security of person and life is frequently involved, under circumstances in which the carrier is in control of the movement or of the equipment Belvedere Bldg. Co. v. Bryan, 103 Md. 514, 534-540 , 64 A. 44 ....” Seven years later, the case of O’Neill & Company v. Crummitt, supra, 172 Md. 53 , 190 A. 763 , involved an attendant operated passenger elevator in a department store.

The plaintiff, a passenger in the elevator, desired to exit at the third floor. When the elevator reached the third floor, and the doors opened, the elevator was stopped about four inches above the level of the floor. As the plaintiff was exiting, the elevator dropped suddenly, causing the plaintiff to lose her balance. Furthermore, when the plaintiff touched the third floor, she slipped on a greasy substance in such a manner that her back struck the elevator.

An “inspection, according to the undisputed testimony, revealed that the outer elevator door could be opened with the elevator floor approximately four inches above or below the landing floor.” O’Neill, 172 Md. at 60 , 190 A. at 766 . There was also evidence that, “with both doors open, the elevator could have been