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ARTICLE ID 27304

$________ - ALLEGED NEGLIGENT MAINTENANCE - ELEVATOR LEVELING PROBLEM - TRIP AND FALL - L-4 COMPRESSION FRACTURE TO ELDERLY PLAINTIFF - SCIATICA FROM RESULTING NERVE ROOT IRRITATION.

Orange County

The female plaintiff, age 78 at the time of her injury, alleged that the defendant maintenance contractor negligently maintained the elevators at Walt Disney World’s Polynesian resort, resulting in a leveling problem which caused the plaintiff to fall and sustain a compression fracture of the vertebra. Walt Disney World, the owner of the premises, was also named as a defendant and was defended by the maintenance contractor under an indemnity clause of the maintenance contract. The defendant maintenance contractor contended that the elevators were adequately maintained and that the leveling problem which allegedly caused the plaintiff’s fall was unpredictable. The defendants also contended that the plaintiff was comparatively negligent for stepping into the elevator when it was obviously below floor level.

The plaintiff testified that she was a patron at Walt Disney’s Polynesian Resort and attempted to board an elevator in the main building. The plaintiff said that her 90-year-old husband was following her and she reached out to hold the door and stepped into the elevator without realizing that the elevator had stopped some 14 to 24 inches below floor level, causing her to fall into the elevator. The plaintiff contended that the elevator was located in an alcove and the door was recessed so that she had to turn the corner to enter. The plaintiff introduced several years of service records pertaining to the Polynesian Resort’s 13 elevators, over defense objections. The plaintiff argued that these records showed an inordinate amount of problems with the elevators. The plaintiff pointed out that the repair time required for the resort’s elevators was approximately ________% greater then was anticipated in the maintenance contract between the defendants, whereas the routine maintenance required less time than anticipated. Hydraulic fluid apparently leaked from the elevator causing the leveling problem and the elevator’s "anti-creep" device failed, according to the plaintiff’s arguments. Additionally, the elevator was equipped with a device to close the door and prevent entry in the event of such a leveling problem, but this device also failed to function, according to the plaintiff’s evidence. The plaintiff requested and received a res ipsa loquitur charge to the jury over the defendant’s objections that such a charge was not appropriate in cases involving comparative negligence.

The plaintiff’s orthopedic surgeon testified that the plaintiff sustained an L-4 fracture as a result of the fall which could not be surgically improved. The plaintiff also suffered sciatica related to irritation of the nerve roots caused by the fracture and will continue to suffer permanent pain and limitation of movement, according to the plaintiff’s expert.

The defendant’s argued that the plaintiff was comparatively negligent and should have noticed that the elevator was below floor level before stepping in. The defendant’s elevator expert testified that his review of the records and other relevant data PsE 3 indicated that the maintenance to the elevators was adequate. The defendant argued that the leveling problem was unpredictable and did not result from negligent maintenance. The jury found the defendant elevator maintenance company 70% negligent, the defendant property owner 25% negligent and the plaintiff 5% comparatively negligent. The plaintiff was awarded $________ which was reduced accordingly. The case is currently on appeal.

Plaintiff’s orthopedic surgeon: Austin E. White from Newport R.I. Defendant’s elevator expert: Malcolm Diagle from Orlando. King vs. Walt Disney World and Otis Elevator Company.

Case no. CI89-________; Judge W. Rogers Turner, 5-8-92. Attorney for plaintiff: Barry Morgan of Lawrence, Landis & Morgan in Orlando; Attorneys for defendants: Craig Brams and Alexander Muszynski III of Eubanks, Hilyard, Rumbley, Meier & Lengauer in Orlando.

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