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ANTHA BETHAY v. PHILADELPHIA HOUSING AUTHORITY (10/26/79)

filed: October 26, 1979.

ANTHA BETHAY, ADMINISTRATRIX OF THE ESTATE OF KENNETH BETHAY, DECEASED,
v.
PHILADELPHIA HOUSING AUTHORITY, AND SECURITY ELEVATOR COMPANY, ADDITIONAL DEFENDANT. APPEAL OF PHILADELPHIA HOUSING AUTHORITY



OCTOBER TERM, 1978 No. 1846, APPEAL FROM THE JUDGMENT OF THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, TRIAL DIVISION ENTERED JUNE 21, 1978 AT NO. 3854, SEPTEMBER TERM, 1970.

COUNSEL

Edwin L. Scherlis, Philadelphia, for appellant.

Bruce W. Miller, Philadelphia, for Bethay, Administratrix, appellee.

Alfred J. Tagliaferri, Philadelphia, for Security Elevator Co., appellee.

Wieand, Robinson and Louik, JJ.*fn*

Author: Robinson

[ 271 Pa. Super. Page 371]

This is an action brought under the Wrongful Death and Survival statutes by Antha Bethay, the administratrix of the estate of her deceased son, Kenneth, against the Philadelphia Housing Authority. Mrs. Bethay alleges that her son's death resulted from the negligence of the Housing Authority in failing to exercise proper care in the operation and maintenance of the elevators at the housing project. The Housing Authority joined as an additional defendant the Security Elevator Company with whom it had a maintenance and repair contract.

The jury was given binding instructions as to the additional defendant, Security Elevator Company and returned a verdict in favor of the plaintiff for $60,000.00 against the Housing Authority -- $1,000.00 in the Wrongful Death action and $59,000.00 in the Survival action. Philadelphia Housing Authority, appellant, filed post-trial motions for judgment n. o. v. and for a new trial. These motions were denied and judgment was entered on the verdict. This appeal therefrom followed.

Viewing the evidence, together with all reasonable inferences therefrom, in the light most favorable to plaintiff, the verdict-winner, as we must, the following facts appear:

[ 271 Pa. Super. Page 372]

The decedent, age 10, was found on the morning of March 2, 1970 lying at the bottom of an elevator shaft in the Housing Authority project. Two elevators were provided for the building, one for the odd numbered floors and one for the even numbered floors. The Bethays had lived there approximately six years prior to the accident. Mrs. Bethay, decedent's mother, testified Kenneth and his twin brother left for school about 8:15 A.M. Approximately 25 minutes later she was told Kenneth had been found at the bottom of the elevator shaft. There was no eye-witness to the accident. However, one Thomas Bruce, a member of the maintenance staff of the Housing Authority, who was called as a witness by the appellant, testified that on the day in question he had received information of children playing on top of the elevator. He went to the building, pushed the elevator button and immediately heard something fall into the shaft. Both of the elevators returned to the first floor and no one was in them. Upon hearing moans from the bottom of the shaft, he sent for the manager and together they maneuvered the elevator upward and were able to see the deceased in the bottom of the shaft.

The record is replete with evidence that for many years prior to the accident the landing doors would often be open thereby causing the elevator to become stuck or trapped either up or down the shaft; that the landing doors could be opened from the outside by placing a wire or coat hanger into the emergency keyholes situated at the top of the landing doors and then twisting the wire whereupon the doors would open and thus stop the elevator in the shaft between floors. Additionally, children were frequently observed playing on top of the elevator. They were able to get to the top by going through the emergency exit on top of the elevator cab which could be opened from the inside. There was testimony both by a janitor of the building and the Superintendent of the Housing Authority that they knew children played on the roof of the elevators and that coat hangers were used to open the landing doors; but no steps were taken to eliminate the keyholes or to place

[ 271 Pa. Super. Page 373]

    operators on the elevators or to make use of any security guards. The Superintendent knew of these conditions from 1958 until the date of the accident.

Sil Bozzacco, an elevator consulting engineer, examined the elevator in question on March 13, 1970. In answer to a hypothetical question, he stated that in his opinion, decedent probably fell into the elevator shaft either by going through the top emergency exit panel and then fell from the roof of the elevator or assumed when he saw the landing door open that the elevator was there and entered the elevator shaft and fell to the bottom of the pit. He further testified that the emergency keyholes from floors four through sixteen could have been eliminated inasmuch as they were unnecessary and not required under the Pennsylvania Elevator Code. As to the first two floors an additional key lock or even a plate with tamper-proof screws could have been provided to make it more difficult for someone to gain access by means of a makeshift key. As a means of preventing access to the roof of the elevator, the back handrail could have been removed to make it more difficult to gain access to the top emergency exit or it could have been provided that the top emergency exit could be opened from the outside of the shaft-way only. He further testified that while the regulations of the Elevator Division of the Department of Labor and Industry require that the emergency panel have the potential to be opened from the inside as well as the outside, a waiver of this requirement could have been obtained where a hazardous condition existed.

Mr. Bozzacco further testified the danger could have been also obviated by having an operator or attendant present in each of the two elevators.

Motion for Judgment N.O.V.

While there was no eye witness to the accident, appellant concedes that a prima facie case may be established by circumstantial evidence. Smith v. Bell Telephone Company of Penna., 397 Pa. 134, 153 A.2d 477 (1959). Nor need ...


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