Cash v. Otis Elevator Co.

No. 83-476
IN THE SUPREME COURT OF THE STATE OF NONTANA

1984

KIlTIlERINE CASH,
Plaintiff and Respondent,

OTIS ELEVATOR COMPANY, a corporation,
and COUNTRY CLUB MANOR, a co-partnership,
d/b/a MUELLER APARTFIENTS ,
Defendants and Appellants.

APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark P. Sullivan, Judge presiding.

COUNSEL OF RECORD:

For Appellants:
Corette, Smith, Pohlman & Allen; Gregory C. Black
G R. D. Corette argued for Mueller Apts., Butte,
Montana
Poore, Roth & Robinson; C. Richard Anderson argued
for Otis Elevator, Butte, Montana
For Respondent:
John L. Peterson argued, Butte, Montana

Submitted: %arch 22, 1984
Decided: June 6, 1 9 5 4

Filed:
,jUN 384
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Defendants Otis Elevator Company (Otis) and Country Club
Manor, a co-partnership, d/b/a Mueller Apartments, (Mueller)
appeal from a judgment entered by the District Court of the
Second Judicial District, Silver Bow County, awarding
$108,000 plus costs and damages for personal injury.
At about 1:00 o'clock a.m. on August 20, 1981, plaintiff
went to the Mueller apartment building to visit a tenant.
She entered the lobby and pushed the elevator call button.
After briefly visiting with other people in the lobby,
plaintiff opened the hoistway door to the elevator and
stepped forward. The elevator car was not at the lobby floor
level and plaintiff fell approximately fifteen feet down the
elevator shaft. Plaintiff instituted this action to recover
for her personal injuries suffered in the fall.
Mueller had a maintenance agreement with Otis whereby
Otis agreed to make monthly service calls and provide
emergency services when notified of problems. Following the
accident, Mueller notified Otis. Otis dispatched an employee
to the premises. Upon inspection a brass hook, which was
part of the lobby floor interlock system, was found to be
bent. The elevator door, under these conditions, could be
opened without the elevator car being present.
Plaintiff was taken to the hospital after the accident
and found to have a blood alcohol content of .16%.

Plaintiff's intoxication was considered by the jury.
The trial court found defendants negligent as a matter
of law and submitted causation and contributory negligence to
the jury. The jury found plaintiff to be contributorily
negligent and attributed 20% of the total cause to
plaintiff's conduct. The balance of cause was divided 40% to
Mueller and 40% to Otis.
 The following issues are presented on appea.1:
1. Whether the District Court erred in finding Otis and
Mueller or either of them guilty of negligence as a matter of
law?
2. Whether the District Court erred in instructing the
jury that defendants owed to plaintiff the highest degree of
care?
3. Whether the District Court erred in refusing
defendant's proposed instruction on independent intervening
cause?
4. Whether the District Court erred in excluding the
testimony offered by Otis from a toxicology expert regarding
the number of drinks consumed by the plaintiff on the night
of the accident?
5. Whether the District Court improperly awarded
certain costs to the plaintiff?
ISSUE -
1:
WHETHER THE DISTRICT COURT ERRED IN DIRECTING A FINDING OF
NEGLIGENCE AGAINST OTIS AND MUELLER OR EITHER OF THEM?
The trial court premised its negligence ruling on
defendant's violation of an administrative safety code and
upon the application of - ipsa loquitur.
res If a directed
finding of negligence was proper, we will not reverse the
case because the trial court premised its ruling upon a
faulty basis. Laurie v. M. & L. Realty corporation (1972),
159 Mont. 404, 408, 498 P.2d 1192, 1194.
Before examining the applicability of - ipsa loquitur
res
to the case at bar, we must see if there were specific acts
of negligence which were unrebutted and which would permit a
directed verdict on negligence. If such negligence is found
and was unrebutted, the finding can be sustained without
resolving the res ipsa issue.
 A case may only be withdrawn from the jury if there are
no genuine and material issues of fact about which twelve
reasonable people can disagree. Sistock v. Northwestern
Telephone Systems, Inc. (Mont. 1980), 615 P.2d 176, 37
St.Rep. 1247. Because the record contains different evidence
as to each of the two defendants, the case against each of
the defendants is discussed separately.
Mueller is the owner of the premises in question. The
parties agree that plaintiff is an invitee. A property
owner's duty toward an invitee is to use ordinary care to
keep the premises reasonably safe and to warn the invitee of
any hidden or lurking dangers. Cereck v. Albertson's, Inc.
(1981), 195 Mont. 409, 637 P.2d 509; Rennick v. Hoover (Mont.
1980) ,606 P.2d 1079, 37 St.Rep. 308. However, in the
operation of an elevator, we feel the owner owes a higher
degree of care. The elevator performs the function of a
common carrier in transporting people from one floor to
another. Experience teaches that the public reposes trust in
those who furnish that carriage, that they will be
transported safely from one floor to another. A number of
jurisdictions have held that, with respect to operation of
the elevator itself, the premises owner owes the highest
degree of care. Johnson v. Hopkins (1925), 213 Ala. 492, 105
So. 663; Stewart v. Beegun (1970),126 Ill.App.2d 120, 261
N.E.2d 491. We feel that the best public policy is served by
adopting this higher standard for Montana.
Plaintiff contends that Mueller was negligent as a
matter of law for violating specific provisions of the
Montana Safety Code for elevators. The District Court found
that the defendants were negligent per se for having violated
the safety code relating to the operation of the
hoistway-door interlock device. The code defines this device
and its integrated system in the following manner:
 "Hoistway-Door Electric Contact. An electrical
device, the function of which is to prevent
operation of the driving-machine by the normal
operating device unless the hoistway door is in the
closed position ...
"Hoistway-Door or Gate Locking Device. A device
which secures a hoistway door or gate in the closed
position and prevents it from being opened from the
landing side except under certain specified
conditions.
"Hoistway-Door Combination Mechanical - -Lock and
Electric Contact. A combination mechanical and
electrical device with two related, but entirely
independent functions, which are:
(a) to prevent operation of the driving-machine by
the normal operating device unless the hoistway
door is in the closed position; and
(b to lock the hoistway door in the closed
position and prevent it from being opened from the
landing side unless the car is within the landing
zone.
"NOTES (Hoistway-Door Combination Mechanical Lock
and Electric Contact):
(a These functions are subject to the
modifications specified in Rule 111.4b of this
Code.
(b) As there is no positive mechanical connection
between the electric contact and the door locking
mechanism, this device insures only that the door
will be closed, but not necessarily locked, when
the car leaves the landing. Should the lock
mechanism fail to operate as intended when released
by a stationary or retiring car-cam device, the
door can be opened from the landing side even
though the car is not at the landing. If operated
by a stationary car-cam device, it does not prevent
opening the door from the landing side as the car
passes the floor.
"Hoistway-Door Interlock. A device having two
related and interdependent functions which are:
(a) to prevent the operation of the
driving-machine by the normal operating device
unless the hoistway door is locked in the closed
position; and
(b) to prevent the opening of the hoistway door
from the landing side unless the car is within the
landing zone and is either stopped or being
stopped." ANSI-ASME A17.1 - 1981 at 4.
The unrebutted testimony of Ken Marshall, an elevator
inspector for the State of Montana, showed that when an
interlock system is functioning in accordance with the safety
code, the door cannot be opened if the elevator car is not at
the floor. Mr. Marshall, without contradiction, testified
that the particular interlock system in the defendant's
elevator was operating in violation of the safety code.
We held in Stepanek v. Kober Construction (Mont. 1981),
625 P.2d 51, 38 St.Rep. 385, that a violation of an
administrative code is evidence of negligence but is not
negligence per se. Plaintiff seeks to distinguish Stepanek
for the reason that the Montana Legislature mandated the
adoption of the safety code which is here involved. Specific
reliance is pla.ced upon sections 50-60-203 and 50-60-702,
MCA. Those sections rea-d as follows:
"50-60-203: Department to adopt state building
code by rule. (1) The department shall adopt
rules relating to the construction of, the
installation of equipment in, and standards for
material to be used in all buildings or classes of
buildings, including provisions dealing with
safety, sanitation and conservation of energy. ..
" (2) The department may adopt by reference
nationally recognized building codes in whole or in
part, but this does not prevent the department from
adopting rules more stringent that those contained
in such codes."
"50-60-702: Department to adopt inspection
standards--certification of inspectors. (1) The
department shall adopt standards for passenger
elevator and escalator inspections that assure
compliance with the requirements of the state
building code.
" (2) The department shall adopt rules for the
certification of maintenance and insurance company
inspectors who may inspect passenger elevators and
escalators pursuant to 50-60-701."
Plaintiff argues that the legislature cannot set forth
verbatim a lengthy and detailed building code. We agree.
However, the legislature did not incorporate this
administrative code by reference. The legislature simply
mandated that the Department of Administration adopt rules.
The Department did so. The legislature did not act further
to adopt those rules. Under these circumstances, the
administrative code does not become part of a statute by
reference. Therefore, violation of the code is evidence of
negligence rather than negligence per se.
 The unrefuted evidence in this case showed a violation
of the administrative code and such a violation provided
clear evidence of negligence. In fact, the defendant-owner
submitted the following jury instruction which was refused:
"You are instructed that both defendants in this
case are subject to the provisions of the Safety
Code for the Elevators and Escalators, ANSI/ASME
A17.1, 1981, as adopted by the State of Montana
pursuant to law. If you find from the evidence
that the elevator at the Mueller Apartments at the
time of plaintiff's accident was in an operating
condition which was in violation of the safety code
and that violation was a proximate cause of
plaintiff's injuries, you are instructed that such
a violation raises a rebuttable presumption of
negligence on the part of one or both of the
defendants. The defendants then have the burden of
proving by a preponderance of the evidence that one
or both of them did what might reasonably be
expected of a person of ordinary prudence, acting
under similar circumstances, who desired to comply
with the law. "
We do not agree with the proposed instruction in that
the burden of proof does not actually shift to the defendant.
We do agree that violation of the code provided evidence of

negligence and that it was incumbent upon the defendant to
come forward with evidence that would show the defendant
exercised due care. This the defendant-owner failed to do.
We have carefully examined the record and defendant-owner
called but two witnesses. The owner, John Cote, was the
first witness. A fair summary of Mr. Cote's testimony
that he had no personal knowledge of the condition of the
elevator at the time the accident happened and immediately
prior thereto. He testified that he relied upon Otis for
servicing and maintaining the elevator and upon his building
manager to discover problems and report them to Otis.
The building manager was the other witness. Sharon
Stephens stated that she had previously discovered problems
with the elevator and reported them to Otis. She ha.d no
knowledge of any defects in the elevator immediately prior to
the time the accident occurred. However, defendant Mueller
offered no testimony to show that either the building manager
or the owner ever inspected the elevator to determine whether
the interlocking device was defective or whether the door
would open with the elevator at a remote location.
The record in this case shows a violation of the
Administrative Code providing evidence of negligence. The
defendant has in no way attempted to rebut this testimony
except to show that responsibility for operation and
maintenance of the elevator was contracted away to Otis.
Plaintiff contends that responsibility for a safe
elevator could not be delegated by the owner to Otis.
Plaintiff argues nondelegable duty. The concept was first
articulated by the Montana Supreme Court in Ulmen v.
Schwieger (1932),92 Mont. 331, 12 P.2d 856. In ~ l m e n ,this
Court held that, although one is not generally liable for the
negligent acts of an independent contractor, nevertheless,
one remains liable for the work of an independent contractor
where the work to be done is intrinsically dangerous. The
nondelegable duty recognized in the Ulmen case was cited with
approval and relied upon in Stepanek v. Kober Construction,
supra.
Courts of other jurisdictions recognize that elevators,
if defective, are dangerous instrumentalities. Sweeney v.
Levy (1948), 67 Pa.D.C 5. In Stewart v. Beegun, supra, the
Illinois Court held that a defendant-owner could not be
absolved from liability by a showing that owner had delegated
maintenance of the elevator to another. In accord see
Phegley v. Graham (1948), 358 Mo. 551, 215 S.W.2d 499.
In this case the evidence clearly shows that defendant
Mueller violated the Administrative Code provisions covering
elevators. This evidence was not attacked nor impeached.
R.ather, Mueller defended by showing reliance upon Otis. If
Otis was negligent in failing to discover the defect on
August 4th, Mueller would be liable under nondelegable duty.
If the defect was not there at the last Otis inspection it
had to have developed at a time that only Mueller was in
control. Mueller has presented no evidence to show what
Mueller did since the last inspection which would rebut the
code violation. Under these circumstances the trial court
was correct in directing a finding of negligence against
defendant Mueller.
The case against defendant Otis is different. Plaintiff
presented expert testimony which, if believed, would prove
that the defective hook existed prior to the time Otis made
its inspection on August 4, slightly more than two weeks
prior to the accident. Ilowever, Otis presented testimony
from its inspector that the hook was examined at the time of
the inspection on August 4. This witness testified tha.t the
hook was in good shape at that time. This testimony, if
believed, would allow the jury to infer that the hook became
bent at a time following the inspection. Under these
circumstances the jury could return a defense verdict for
Otis.
We must emphasize that Otis had no ownership interest in
the elevator. In 1980 Otis became obligated to service the
elevator pursuant to the provisions of a contract with the
owner, Mueller . The inspection obligation was to be
discharged monthly. Otis inspected on August 4. No calls
were made by the owner to Otis requiring Otis to return to
the premises subsequent to August 4 and prior to the
happening of this accident on August 20. If the jury
believed plaintiff's expert, then the jury would find against
defendant Otis for the reason that the defect must have been
there at the time of the inspection. However, if the jury
chose to believe Otis' inspector, then the jury could find
for defendant Otis on the basis that the hook became bent
following the inspection and no breach of duty occurred on
the part of Otis.
If the case against Otis is retried, the question may
arise regarding applicability of the Administrative Code to
Otis. Otis here argues the code only applies to owners.
Although section 2.32.604 (8) A.R.M. makes the owner
responsible for obtaining a certificate of inspection for
elevators, we cannot say the code provisions generally should
be so limited. This Administrative C0d.e creates standards.
The violation of those standards is evidence of negligence on
the part of anyone who properly has a duty to prevent such
violation. This may include an elevator maintenance company.
However, any evidence of code violation can be rebutted by
showing that Otis only had a duty to make monthly inspections
and respond to emergency calls. If the jury were to find
that any code violation did not exist at the time of the last
required inspection and no calls were made summoning special
service, then Otis would be absolved.
The judgment against Otis must be vacated and the case
returned for trial. Since we affirm the directed finding
against Mueller based on specific acts of negligence, we need
not consider the -
res ipsa loquitur question. Upon any
retrial against Otis, should plaintiff seek to rely on -
res
ipsa to create a jury issue, the trial court should apply the
principles of Tompkins v. Northwestern Union Trust Co. (Mont.
1982), 645 P.2d 402, 39 St.Rep. 845, to the facts a.dduced at
tria.1.
ISSUE -
2:
WHETHER THE DISTRICT COURT ERRED IN INSTRUCTING THE JURY THAT
DEFENDANTS OWED TO PLAINTIFF THE HIGHEST DEGREE OF CARE?
Plaintiff argues it was proper to instruct the jury that
defendants owed to plaintiff the highest degree of care,
although the court had previously directed a finding of
negligence against defendants. The basis for plaintiff's
argument is that the jury must know that the highest degree
of care is owed in order that percentages of negligence can
be assigned the respective parties. Technically this is not
SO. The jury is properly charged to find whether the
plaintiff is negligent and if so, the percentage that the
conduct of each negligent party contributed to the cause. In
other words, the jury does not gauge the negligence of
pla.intiff by comparing it to the negligence of defendant. If
all were negligent then the jury determines the percentage
that the conduct of each contributed to the totality of
injuries.
We do find that this instruction was harmless error. We
have previously decided that the highest degree of care was
owed. Under the circumstances, it was not prejudicial to
give the instruction.
ISSUE -
3:
WHETHER THE DISTRICT COURT ERRED IN REFUSING DEFENDANT'S
PROPOSED INSTRUCTION ON INDEPENDENT INTERVENING CAUSE?
Otis claims error in failing to give its offered
instruction No. 12. That instruction said:
"In determining whether a Defendant's negligence in
creating a hazard was a proximate cause of the
accident, the following test is to be applied:
"Did the wrongful act, in a natural and
continuous sequence of events, which might
reasonably be expected to follow, produce the
injury? If so, it is a concurring proximate
cause of the injury even though the later
negligent act of another person cooperated to
cause it.
"On the other hand, if the latter's negligent
act in causing the accident was of such a
character as not reasonably to be expected to
happen in the natural sequence of events, then
such later act of negligence is the
independent, intervening cause and therefore
the sole proximate cause of the injury."
 While the above-quoted instruction may not be erroneous,
it was not necessary and in fact is confusing. Court's
instruction No. 7 stated:
"You are instructed that the proximate cause of an
injury is that which, in a natural and continuous
sequence, unbroken & any new cause, produces the
- - - -
injury, and without which the iniurv would not have
occurred." (emphasis supplied)
Court's instruction No. 7 sufficiently stated the law of
intervening cause. We do add tha.t the old language employed
in proximate cause instructions is bej-ng discarded in favor
of language more easily understood by a lay jury. However,
court's instruction No. 7 was a.n. accurate statement of the
law and adequately covered the subject.
ISSUE -
4:
WHETHER THE DISTRICT COURT ERRED IN EXCLUDING THE TESTIMONY
OFFERED BY OTIS FROM A TOXICOLOGY EXPERT REGARDING THE NUMBER
OF DRINKS CONSUMED BY THE PLAINTIFF ON THE NIGHT OF THE
ACCIDENT?
Defendants claim error because the trial court refused
to allow a toxicology expert to testify about the number of
drinks consumed by the plaintiff on the night of the
accident. Plaintiff's alcoholic blood content of . 1 6 % was
admitted without objection. The toxicologist, over
plaintiff's objection, testified about the affect upon. a
person of different ranges of alcohol blood content. This
expert was then asked to give testimony as to "the amount of
alcohol necessary to be consumed" for plaintiff to have a
blood alcohol content of .16%.
The admission of this kind of testimony is discretionary
with the trial court. Since the jury had already received
evidence regarding the blood alcohol content and the affect
that such a blood alcohol content would have upon a person,
the court was justified in finding that the jury need not be
told by the expert the number of drinks consumed by the
plaintiff. The relevant consideration is whether the
plaintiff was intoxicated, and if so, how that affected the
plaintiff's conduct on the night in question. Other
probative evidence on this issue was considered by the jury.
The trial court is vested with great latitude in ruling on
the admissability of expert testimony. Krohmer v. Dahl
(1965), 145 Mont. 491, 402 P.2d 979. We hold that the trial
court's ruling here was not clearly erroneous nor
sufficiently prejudicial to require a new trial.
ISSUE -
5:
WHETHER THE DISTRICT COURT IMPROPERLY AWARDED CERTAIN COSTS
TO THE PLAINTIFF?
Defendants claim that the costs of two depositions and
certain photographs are not recoverable. Both the
photographs and the depositions were used at time of trial.
The trial court, after hearing and briefs, entered its order
of August 2, 1983, which stated:
"After considering the memoranda on file and the
oral arguments heard in the above-entitled court on
July 15, 1983, this court finds that the
depositions of Stephens and , although not
introduced into evidence, were used during the
trial for impeachment purposes. The court further
finds that the photographs were necessary expenses
as contemplated by section 25-10-201(a), MCA
(1981) ."
Deposition costs are allowable where the deposition is
used at trial. These depositions were used to impeach.
Therefore the costs were recoverable. Morrison-Maierle, Inc.
v. Selsco (Mont. 1980), 606 P.2d 1085, 1088, 37 St.Rep. 299,
303.
With respect to the photographs, section 25-10-201 (a),
MCA, allows the taxing of costs for "reasonable and necessary
expenses as are taxable according to the course and practice
of the court or by expressed provision of law". The trial
court's broad authority for taxing costs permitted the taxing
of this photography expense.
 The judgment against defendant Country Club Manor,
co-partnership d/b/a Mueller Apartments, is affirmed. The

judgment against Otis Elevator Company is vacated and the
cause remanded for trial in accordance with the legal
principles enunciated herein.

F e concur:
7

Chief Justlce

Justices
 Nr. Justice Fred J. Weber dissents:
I respectfully dissent from the conclusion of the
majority that the District Court did not err by instructing
the jury that defendants were negligent as a matter of law.
I conclude that the District Court improperly became a trier
of disputed fact.
In finding both defendants negligent as a matter of law,
the District Court based its decision first on res ipsa
loquitur and secondly on negligence per se, arising from the
violation of the safety code. The majority has not affirmed
either theory. The majority did not consider the res ipsa
loquitur theory. With regard to negligence per se, the
majority concluded only that "violation of the code is
evidence of negligence rather than negligence per se. I
agree with that determination. Upon that basis, the
determination of negligence as a matter of law should be
reversed.
The majority correctly points out that a case should be
withdrawn from the jury only where there are no genuine and
material issues of fact about which twelve reasonable people
could disagree. The majority then briefly analyzes the
evidence and concludes that defenda.nt Mueller failed to come
forward with evidence to show that the defendants exercised
due care. I do not find that the record supports this
conclusion.
Sharon Stephens, the building manager for Mueller,
testified at length. Otis Elevator had the contract for
maintenance of the elevator. Sharon had authority to call
Otis to make repairs. She summarized her authority and
duties as follows:
"A. General safety and traffic precautions as
making sure that all outer doors on all floors were
closed so that the elevator could operate.
 "Q. Did you ever look for any other problems with
the elevator?
"A. Yes, I did. I rode it constantly.
"Q. Could you ascertain whether there was a
problem in terms of function of the motor?
"A. I could by listening.

"Q. Did you know what those problems were exactly?
"A. No, I am not an engineer. Just it is simply
that I could ascertain something was not running as
it should."
If something went wrong, Sharon called Otis. She
testified no complaints were made during the 15 days prior to
the accident:
"Q. Turning your attention to August, 1981, from
the 5th day of August, 1981, until the 20th day of
August, 1981, were you ever notified or made aware
of any problem whatsoever with the elevator at the
Mueller Apartments? ...
"A. I was given no notification that the elevator
wasn't working perfectly.
"Q. Were you living at the Mueller Apartments at
that time?
"A. I was.
"9. Did you use the elevator on a daily basis?
"A. I did. l1
With regard to her use of the elevator during the 24
hours preceeding the accident, Sharon testified:
"Q. Turning your attention to the 19th day of
August, 1981, did you use the elevator on that day?
"A. Yes, I did.

"Q. Was that during the daytime?
"A. During the daytime and also in the evening.
"Q. What was the occasion for your using that
elevator that evening?
"A. There was a very bad electrical storm with
wind and lots of rain. All of the west hallway
windows were open because it had been a hot day. I
went to all floors and closed a.11 those windows.
"Q. Did you use the elevator to go from floor to
floor?
 "Q. Did your use of the elevator at that time take
you to the lobby?
"A. It did."
Sharon testified she had resided at the apartment from
July 1979 to August 1981, the date of the accident. She
testified that Otis maintained the elevator in excellent
condition. When there was a problem, she summoned Otis. It
was her responsibility to make certain the elevator was not
abused by tenants which included not letting the tenants slam
the doors. When the doors were slammed, the users were
immediately admonished; and the slamming of doors took place
on rare occasions. With regard to the care and maintenance
of the elevator, Sharon further testified:
"8. With regard to the elevator operation itself,
I assume that you had some discussions with the
Otis Elevator people when you made calls and. they
came to the elevator on emergency calls, did you
not?
"A. Yes.
"Q. According to the records that have been
provided to us, there were at least 10 emergency
calls in 1981 up until the date of the accident.
"A. Surely.
"Q. And then there were routine visits by the Otis
Elevator Company.
"A. Correct.
"Q. Did you yourself ever ask anyone fron Otis
Elevator what, if anything, you should look for to
see, to make sure the elevator was in good working
condition?
"A. I don't believe I ever did.
"Q. Did you ever receive any instructions from Mr.
Sprague (an employee of Otis) relative to the
operation of the elevator?
"A. Yes.
"Q. What was that?
 "A. Well the general checking, you know, of locks,
or listening in case the motor lugged down, ran
slow.
"Q. Anything else?
"A. Checking it for leveling.
"Q. Is that it?
"A. There may have been more. I don't recall
anything right now."
With regard to the operation of the elevator itself,
Sharon testified it worked well:
"Q. With regard to the elevator trouble, how would
you characterize the overall operation of the
elevator with regard to whether it was working or
not?
"A. Overall it operated very well."
Sharon also testified at length with regard to the
maintenance of the elevator by the named representatives of
Otis. She pointed out that she was more than satisfied with
their work. The repairmen resided in Butte and responded
immediately. Sharon had no trouble with the assistance
which Otis gave to keep the elevator in good condition.
Sha.ron also testified that after the plaintiff's fall, she
looked at the elevator and the hook on the elevator door and
saw that the hook was bent.
The defendants presented additional evidence which
showed that the elevator had been well maintained and was in
good working condition. All of that evidence taken together
rebuts the majority's conclusion that the defendant failed to
come forward with any evidence showing due care and failed to
rebut the evidence of negligence. My review of the evidence
suggests that the following findings can be made from the
evidence submitted by the defendants:
(1) That the building manager had lived in the building
for two years and constantly rode the elevator; that she rode
the elevator a number of times on the day of the accident and
observed nothing wrong; that no complaints of any type had
been made to her about the defective operation of the
elevator; and that the el.eva.tor was in good operating
condition on the date of the accident.
(2) That the building manager was given the obligation
to see that the elevator was properly functioning and was
given authority to call Otis in the event of any defects of
operation; that she was aware of the problem which could
occur from slamming of the elevator doors and posted signs
and also admonished elevator users not to slam the doors, so
that slamminq was a rare happening.
(3) That the building man.ager was in constant contact
with the Otis Elevator people, who immediately respond.ed to
requests for repair assistance and did an excellent job of
repair, so far as the manager could determine; that there had
been a total of ten emergency calls to Otis in 1981 prior to
the August 20th accident; that the Otis repairman inspected
the elevator on August 4, 1981; and there had been no
complaints from. that time to the date of the accident.
This eviden.ce clearly raises an issue of fact as to
whether the defendants acted as reasonable men exercising due
care under the circumstances. The jury should have been
allowed to perform its function as the trier of fact. The
jury should have weighed the evidence of due care on the part
of the defendants, the evidence of negligence arising from
the violation of the elevator code, and the remainder of the
evidence. Thereafter, the jury should have determined
whether or not the defendants were negligent. That issue of
disputed fact was improperly resolved by the District Court.
The majority sets a standard of "highest degree of care"
for the operation of an elevator, and points out that the
elevator is performing the fun.ction of a common carrier.
Those conclusions are based on authority which I find
unpersuasive - a 1925 Alabama Supreme Court decision and a
1970 Illinois intermediate appellate court decision. Such
conclusions may have been appropriate in earlier years when
the rule of contributory negligence might have barred any
recovery by a plaintiff, such as the plaintiff in this case.
I do not believe such a rule is necessary any longer for the
protection of elevator users in Montana. The rule of
comparative negligence applies. The jury is eminently
capable of comparing the negligence on the part of the
building owner, the elevator maintainer and the user.
I would reverse the judgment and remand for new trial as
to both defendants Mueller Apartments and Otis Elevator
Company.
Mr. Justice John C. Sheehy, dissenting and concurring:

I concur in the result as to Mueller Apartments, but
dissent from much of what is said with respect to Mueller
Apartments, and dissent from the majority holding as to Otis:
I concur with the majority that Mueller Apartments
raised no issue of material fact on which it had a right to a
jury decision. There can be no conclusion of fact but that
on the early morning of August 20, 1981, Mueller was in
violation of the state building code, and its counterpart
elevator code because of the defective condition of the brass
door latch which was a part of the interlock system.
It necessarily follows that I disagree with Justice
Weberls dissent, which finds an issue of material fact in the
testimony of Sharon Stephens. The Stephens ' testimony did
not raise an issue of fact for the jury to determine. Her
testimony is that she went up and down in the elevator on the
evening of August 19 to close windows and she also testified
generally that the elevator was usually in good working
condition. However, her use of the elevator doors was always
when the elevator car - at the landing when she opened the
was
door. Nothing in her testimony indicates she ever tried to
open the lobby elevator door when the elevator car - - at
was not
that landing. From the testimony in the whole record, it is
clear that the only person who tested the lobby door when the
elevator car was not at the landing was Katherine Cash, and
she paid the price. The testimony of Sharon Stephens
therefore does not raise an issue of fact.
A person using the elevator in the manner of Sharon
Stephens who opened the first floor elevator door when the
car was in that landing position would not have discovered
that the brass door latch was in fact defective. Opening the
door when the car was in position would not have shown that
the door also opened if the car was not in the landing
position on the first floor.
On tha.t basis, I would hold tha.t res ipsa loquitur
applied as far as Mueller Apartments is concerned because
nothing the owner or its agents testified to excuses the
presumption of negligence in presenting to the public an
elevator door which would open without the car being at the
landing. In particular, their testimony does not disprove
the testimony of expert Marshall that it would have taken
years to bend the interlock latch. I dissociate myself from
the majority opinion, because I feel - ipsa
res loquitur
applies here.
In another respect, I also remove myself from the
majority in its reluctance to declare the violation of the
state building code and its accompanying elevator code, as
negligence per se .
Under section 50-60-203, MCA, the Department of
Administration was mandated by the legislature to adopt rules
relating to the construction and installa.tionof equipment in
public buildings whether privately or governmentally owned.
The department obeyed that mandate and there are in force in
this state specific regula.tions adopted by the department
known as the state building code, which encompasses the state
elevator code. A willful violation of the state huilding
code, or a refusal to cure a violation after 30 days notice
from the department is a misdemeanor. Section 50-60-110,
MCA. It is not jurisprudential-ly consistent to hold., as we
ha.ve, that a violation of the motor vehicle code which
provides criminal penalties, is negligence per set but to
withhold that same rule of law from violations of the state
build-ing code, which was mandated by the legislature, adopted
after hearings, and carries with it criminal penalties. No
sound reason is a-dvanced by the majority for taking a weaker
position in hol-ding that violation of the state building code
is only evidence of negligence.
There is a vital difference in cla-ssifying a violation
of a state building code as merely evidence of negligence
from a declaration that it is negligence per se. Under the
state building code, the duty of the landowner to provide an
interlocking system on his elevator doors is absolute. It is
intended to secure to users of passenger elevators the safe
operation of doors to elevators and to protect t.he class of
persons which included the plaintiff who would be rightfully
using the passenger elevators. When the duty is a.bsolute, it
makes no difference that the owner may have been using due
care, though due care is argued by Justice Weber in his
dissent:
"Liabil-ityfor an injury resulting from the breach
of an absolute statutory duty constituting
negligence per se or as a matter of law may not be
escaped by proof that the breach was in fact made
in the exercise of due care.. . ."
57 Am.Jur.2d.
623, Negligence § 239.

Of course, the violation of a statutory duty must be
proven to be a proxima.t,e cause of the eventual injury
suffered by the plaintiff, but that is not a problem in this
case. If a violation of the state building code is to be
merely evidence of negligence, it would be pertinent and
proper to allow evidence of efforts on the part of the
landowner to use due care, and thus to escape the absolute
duty imposed by the building code. This Court has not
hesitated to accord to municipalities the recognition that
violation of city ordinances constitutes negligence per se
rvl,~5L
(u v. Ayers (1927), 80 Mont. 401-411, 260 P. 702.)
Should we not accord the same recognition to building
standards which are nationally recognized and adopted, which
are penal in nature, and which are designed. to protect
persons such as the plaintiff in this case?
When a statute, ordinance, or code has been duly adopted
by governmental authority for the protection of a class of
persons, the standard of conduct of a reasonable person is
established by the legislative enactment. The duty of a
judge or jury trying the facts, when a violation of that
standard is charged, is to determine if in fact the violation
occurred. The jud.ge or jury is not called on to make a
common-1a.w determination as to whether the violation
constitutes negligence. It has become negligence to violate
the standard by legislative enactment. Therefore, when the
evidence, as here, shows the standard was violated, there is
nothing for the judge or jury to decide as to negligence; the
standard of conduct of a reasonable person, prescribed by the
statute, ordinance or code, cannot be changed by the judge or
jury to a ,-esser greater duty.
or If the actual violation of
the standard is beyond cavil, the jury must he told that
negligence has occurred as a matter of law. The remaining
question for the jury is whether the negligence is the
proximate cause of the injuries claimed because of the
violation.
The majority by holding that a violation of the state
building code is merely evidence of negligence is implying
that other evidence may he produced to show that a violation
of the state building code is not negligence. In that
position the majority is illogical. If the state building
code does not prescribe the standard of conduct for a
reasonable person, then, to determine negligence, resort must
be had to the common law to determine negligence. Instead of
applying the standard of conduct prescribed by the building
codes, the standard of reasonable care would be one applied
by the court or the jury to the facts of the case as though
the building code were absent. I find that possibility
anomalous.
I dissent completely from the majority in returning this
cause to the District Court for retrial as to Otis Elevator
Company. I would affirm the action of the District Court in
directing that the jury find Otis negligent both because of
violations of the elevator safety code, and under the rule of
res ipsa loquitur.
The violation of the elevator safety code is established
beyond question. The interlock system was not working on the
night that Katherine Cash was injured. Otis Elevator shared
the duty with Mueller Apartments to inspect and maintain the
elevator so that the accident which occurred to Katherine
Cash would not happen.
Here the elevator was under the control of both Otis and
Mueller Apartments. In the ordinary course of things, the
accident would not have happened if due care had been taken
by those in control of it; the plaintiff has no means of
explaining how the elevator was not at the floor at which the
door opened. In that situation, res ipsa applies. Class v.
Young Women's Christian Association (1934), 47 Ohio App. 128,
191 N.E. 102; Moohr v. Victoria Investment Company (19271,
144 Wash. 387, 258 P. 43; idem., (19281, 146 Wash. 251, 262
P. 643. Exclusive control is not required in Montana.
Brothers v. General Motor Corporation (Mont. 1983), 658 P.2d
1108, 40 St.Rep. 226; Tompkins v. Northwestern Union Trust
Company (Mont. 1982), 645 P.2d 402, 39 St.Rep. 845.
The record in this case shows a continuing state of
disrepair of the elevator. Not only did the elevator company
make its usual maintenance calls, once a month, but in
addition it was called out for emergency repairs or
maintenance several times during the year preceding the Cash
incident. Both the elevator company and the apartment owner
knew that the brass hook could be bent by use and had signs
posted on the elevator asking users not to "slam" the
elevator doors. Res ipsa raises a presumption that
negligence on the part of those in control occurred; nothing
produced by the defendants, either Mueller Apartments or Otis
Elevator Company, in the trial of this case, excluded their
negligence as a proximate cause of Cash's injuries, except
upon the sheerest speculation of someone slamming the door.
I would affirm the District Court in all respects.

. -.. ~L~~ a H, &
Justice
i