Injured Repairman Recovers $9 Million in Dumbwaiter Accident

by James R. Keller

This article appeared in St. Louis Construction News & Review, p. 9, January-February, 2001.

On December 12, 2000, Missouri's Kansas City Court of Appeals gave an early holiday present to Johnnie Lay, an injured repairman of elevators and dumbwaiters. The appeals court reversed a trial judge's decision and put back in place a jury verdict of $9,252,500 to Lay.

The question for the court was whether a Missouri statute created to protect architects, engineers and builders prevented Lay from suing, 31 years later, a company that both distributed and installed the dumbwaiter. Its decision is the first in Missouri to rule that the law does not cover distributors.

The case is Lay v. P & G Health Care, Inc., W. D. 57678 (Mo. App. W.D. 12/12/2000).

In reaching its decision, the court preserved a jury verdict against Schindler Elevator Company for a defective dumbwaiter that Allied Elevator Company distributed and installed in 1964. Schindler bought Allied in 1981, and its potential liabilities along with it.

The Missouri statute in question, called a statute of repose, prevents an injured person from suing a defendant more than ten years after completion of that defendant's defective improvement to real property. The law only applies, however, if the defendant's "sole connection" with the improvement related to the design, planning or construction of the defective improvement. Anyone with more extended involvement cannot enjoy the ten-year cutoff.

In Lay, the court concluded that since Schindler both distributed and installed the dumbwaiter, it did not have a "sole connection" in the design, planning or construction of the improvement. Thus, the trial court had erred by applying the statute of repose to overturn the jury's verdict.

Despite this victory, Lay's story is tragic.

On September 30, 1992, he was repairing a dumbwaiter car lodged in the shaft between two floors at the Hyde Park Nursing Home in Kansas City, Missouri. Lay, who had 11 years of experience installing, servicing, and repairing elevators and dumbwaiters, discovered that the cable had unwound from the drum and was wrapped around equipment in the pit. The pit, however, was too small to allow access to do the repair. Lay used a service door to the shaft instead.

As he rewound the cable, the dumbwaiter fell eight to ten feet to the bottom of the shaft, impaling his head in the dumbwaiter pit. The dumbwaiter sheared off the lower half of Lay's face, including his nose, an eye, and his jaw, leaving them hanging by their skin.

Still conscious at the hospital, he had to hold his face up against his skull in order to breathe while the doctors began to work on him. He eventually underwent nine surgeries, including extensive reconstructive surgery to his face. Still, his face is disfigured; he lost an eyeball; and he has inner ear damage and vertigo. Half of his face and lips are completely numb.

Lay's lawyers tried his case against Schindler on a theory of strict product liability. They had to prove that Allied sold the dumbwaiter in the course of its business, and that the product was defective and unreasonably dangerous when put to a reasonably anticipated use. They also had to prove that he did his repair in a manner reasonably anticipated, that his injuries were a direct result of the defective condition of the dumbwaiter, and that the defect existed at the time of its sale.

Lay proved to the jury that the dumbwaiter was in a defective and unreasonably dangerous condition. His expert testified that it was reasonably foreseeable for someone like Lay to lean in through the hoistway door, since no other access was available to service the dumbwaiter.

Lay's primary legal problem was that so much time had passed since 1964. Application of the statute of repose would prevent Lay's claim against Schindler, even if he could otherwise prove his case of strict product liability.

The theory behind a statute of repose is that the legislature does not want potential liability to hang over someone's head forever. Part of the perceived concern is that unlimited liability would cause good architects, engineers and builders to quit work altogether, rather than face a lifetime of lawsuit uncertainty.

The appellate court concluded that the statute of repose does not protect those who distribute a product. Therefore, Schindler could be sued 31 years after distributing and installing the dumbwaiter.

Schindler also argued on appeal that the jury's verdict should be thrown out as the product of bias, prejudice and sympathy. The size of the verdict alone, the court noted, is not sufficient to show jury bias, prejudice or sympathy.

The jury actually awarded Lay $15,000,000. The jury then allocated about one-third of the fault of the accident to Lay and thus reduced his overall recovery to $9,252,500.

The appellate court did not find the size of the jury's verdict to be excessive, given Lay's loss of future income, his medical expenses totaling $181,829, his age of 50, the extent of his injuries, and the fact that he will not be able to work again.

* This article originally appeared on pages 9-13 of the ST. LOUIS CONSTRUCTION NEWS & REVIEW / JANUARY-FEBRUARY 2001.

James R. Keller is a partner at HERZOG, CREBS & McGHEE, LLP, St. Louis, Missouri, where he concentrates on construction law, real estate and business litigation. He is also a panelist with the American Arbitration Association.