When individuals sue for personal injuries resulting from a defect within an elevator, plaintiff bears the burden of establishing that defendants had notice of whatever defect is claimed to have caused the accident. When moving for summary judgment, defendants should always look to establish a lack of actual and constructive notice in order to have the action dismissed.

In Little v. Kone, plaintiff alleged she was attempting to enter a freight elevator at work when she was struck on the head by the elevator gate after its alarm bell and strobe light failed to activate, and failed to warn her that the gate was closing.  She sued the elevator maintenance company.  After the trial court denied the defendant’s summary judgment motion, the Appellate Division, Second Department reversed that decision, granting summary judgment to the defendant.  The Court explained that an elevator maintenance company may be liable to a passenger for “failure to correct conditions of which it has knowledge or failure to use reasonable care to discovery and correct a condition which it ought to have found.”  The Court noted that the defendant submitted sufficient evidence to show that it had no actual or constructive notice of any ongoing condition that would have caused the elevator’s gate to close without adequate warning.  Moreover, the Court reasoned that the plaintiff failed to raise any factual issues in its opposition, stating that the plaintiff’s expert’s affidavit was “conclusory, lacking in foundation, and speculative.”

When defending a company that services and/or maintains elevators, defense counsel should always investigate whether there was sufficient notice, whether actual or constructive. If a plaintiff claims that an ongoing defect within the elevator caused his or her accident, defendants can usually make the argument that the case should be dismissed on account of lack of notice.

Thanks for Jeremy Seeman for his contribution to this post.