Spencer v. United States Of America et al

Filing 115

ORDER GRANTING 66 Motion for Summary Judgment and 74 Motion for Summary Judgment; DENYING 80 Motion for Hearing and 82 Motion for Hearing. The Clerk is directed to ENTER JUDGMENT in favor of Defendants and against Plaintiff and CLOSE this case. Signed by Judge J. Randal Hall on 09/27/2016. (maa)

IN THE UNITED
FOR THE

STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

BENERTHA SPENCER,
*

*

Plaintiff,

*
*

v.

*

CV

OTIS ELEVATOR COMPANY and

*

BAYLINE LIFT TECHNOLOGIES,

114-132

*
*

Defendants.

*
*

ORDER

Plaintiff,

Benertha Spencer,

was injured while riding an

elevator in the Augusta VA Medical Center.

Defendants,

Otis

Elevator Company and Bayline Lift Technologies, were responsible
for the maintenance of the Augusta VA Medical Center elevators.

Specifically,

Otis Elevator performed the day-to-day physical

maintenance

of

served

a

as

the

elevators

third-party

Bayline

inspector

semiannual safety inspections.
Defendants,

and

of

Lift

Otis's

Technologies

annual

and

After her injury, Plaintiff sued

as well as the United States of America,

that their negligent maintenance caused Plaintiff's

alleging
injuries.

The Court dismissed the claims against the United States in a

previous order. The remaining Defendants have moved for summary

judgment

on

the

grounds

that

Plaintiff

failed

to

produce

sufficient evidence to prove her claim.

Defendants'

motions are

GRANTED.

I.

On

May

7,

2012,

BACKGROUND

Plaintiff

entered the

first

floor

of

the

Augusta VA Medical Center and took an elevator to the VAH Credit
Union located on the third floor.
35:17-25.)

On

Plaintiff

was

floors.

her

(Doc

returned the
Plaintiff

riding
81-1

car to

on the

at

in
at

13:7-14.)

dropping

suddenly

and

first

When

of the

the

Elevators

the

elevator

stopped

hospital

the

elevator

and a torn

operate

and

at 43-45;

abruptly.

surgery and rehabilitation.

floor,

at

between

technicians

personnel

found

elevator and escorted her to the

Doc.

only

94

("Williamson

passenger

caused

(Spencer

As a result of her fall,

a torn ACL,

("Spencer Dep.")

maintenance

second floor,

that

74

malfunctioned

Plaintiff,

claims

knee,

the

(Spencer Dep.

elevator,

38:3-16.)

to

30.)

the

floor

emergency room.

Dep.")

return

(Doc.

her

Dep.

to

in the
fall

at

by

41:20-21,

she suffered a dislocated

PCL - injuries

which

required

(Spencer Dep. at 50:1-2.)

by

sending

and

receiving

electrical

signals from a central controller to individual elevator cars.
(Doc. 74-2 ("Walker Dep.") at 18-24.)
movement of the car by,
brakes of the car.
mus

t

affirmatively

among other things,

(Id. at 22-23.)

use

These signals control the

brakes

disengaging the

Unlike an automobile, which

to

stop,

an

elevator

must

affirmatively
the brakes

release

requires

the

a

brakes

to

certain amount

the controller through a relay to

"pick" the

brakes

move.

(Id.)

of voltage

the car in

order to

lifted,

not

car

will

microprocessor in the

travel

at

controller will

the

its

If the

brakes

proper

recognize

from

lift or

(Id.)

amount needed to keep

the

to travel

from their resting position.

voltage drops below the

Disengaging

fully

speed,

a problem,

a

and

the brakes will re-engage to stop the car within a predetermined

distance

set

by

("McCray Dep.")
On

the

the

manufacturer.

(Id.

at

38-40;

Doc.

74-3

at 40.)

date

of

the

inspected the elevator.

accident,

Otis

technician

Tim

McCray

Mr. McCray determined that the elevator

malfunctioned because a contact point on the relay located in
the controller had collected dust.

the

contact

prevented

picking the brakes

the

(Id^ at 25.)

electrical

circuit

from fully closing.

decreased the voltage

sent to the brakes.

controller

the

(Id.

recognized

decreased

The dust on

necessary

at

41.)

(Id. )

voltage,

it

This

When

the

engaged

the

brakes, causing the elevator to stop in between floors.
41-42.)

for

(Id. at

Once Mr. McCray identified the problem, he cleaned the

contact, serviced the elevator, and placed it back in use.
In addition to Mr. McCray's inspection,
Otho C.

accident.

Britt

also

Bayline technician

examined the elevator two

(Doc. 81-1 at 30.)

days

after the

Mr. Britt's report confirmed that

the elevator did fall approximately two feet,
duplicate
Mr.

the

malfunction.

McCray's findings.

McCray's

findings

malfunction

negligence

(Id.)

(Id.)

were

failure

(Id.)

to

The

properly

potential cause of the accident.

Depositions
records

reveal

taken
that

by

could

not

however,

consistent

report made

maintain

could not

the

confirm
that Mr.

with

the

no mention of

elevator

as

a

(Id.)

the

Otis

he

He did confirm,

theoretically

experienced.

or

Thus,

but he

parties

technicians

and

Otis

performed

maintenance
work

on

the

elevators in the Medical Center almost every day and followed a

regular maintenance schedule.

regularly

cleaned

the

(Doc. 81-1; Doc. 90 at 49.)

contacts

located

in the

performed numerous brake-performance tests.
13.)

They

controller

(Doc.

and

81-1 at 8-

In fact, Mr. McCray had performed a brake-performance test

the day before the accident,
that his test would have

Dep. at 45.)

and he stated in his deposition

revealed any dirty contacts.

(McCray

Additionally, the elevator had no previous history

of dirty contacts or problems with its brake performance.

II.

Summary

genuine

judgment

dispute

as

STANDARD OF REVIEW

is

appropriate

to any

material

only

fact

entitled to judgment as a matter of law."
56(a).

if

and

"there

the

Fed.

is

no

movant

is

R.

Civ.

P.

Facts are "material" if they could affect the outcome of

the suit
genuine

under the
"if the

governing substantive law,

evidence

is

such that

a

reasonable

return a verdict for the non-moving party."
Lobby,

Inc.,

factual

party,
U.S.

in

477

U.S.

disputes

in

Matsushita

574,

587

[the

242,

the

non-moving

The

favorable

Indus.

v.

not

Anderson,

477 U.S.

The

Court,

moving

party's]
941

favor."

United

F.2d 1428,

the

evidence

Celotex
the

must

view

the non-moving

Radio

Corp.,

475

1437

or

States

(11th Cir.

omitted).

v.

Four

1991)

(en

The Court

determine

credibility.

burden

showing

at 255.

party

has

the

initial

by reference to materials

motion.
Because

weigh

to

Zenith

(internal punctuation and citations

should

Court

and must draw "all justifiable inferences

Parcels of Real Prop.,

banc)

(1986).

Co.

jury could

Anderson v. Liberty

light most

Elec.

(1986),

248

and a dispute is

Corp.

standard

v.

for

on file,

Catrett,
summary

477

the

the basis for the

U.S.

judgment

of

317,

323

mirrors

(1986).

that

of

a

directed verdict, the initial burden of proof required by either

party depends on who carries the burden of proof at trial. Id.
at 323.

When the movant does

not carry the burden of proof at

trial, it may satisfy its initial burden in one of two ways — by

negating an essential element of the non-movantfs

case

or by

showing that there is no evidence to prove a fact necessary to
the

non-movant's

F.2d 604,

case.

See

606-08 (11th Cir.

Clark v. Coats

1991)

& Clark,

Inc.,

(explaining Adickes v.

929

S.H.

Kress

& Co.,

477 U.S.

317

by merely

398

U.S.

(1986)).

declaring

burden at trial.

If —

144

and Celotex Corp.

The movant cannot meet

that

Clark,

the

non-moving

must

bears

the movant

party

carries

"demonstrate that

tailor

carried

its

its

the

affirmatively

burden

response

initial

of

to

burden.

negating

Catrett,

its initial burden

cannot

there

its

meet

its

is

initial burden,

indeed a

issue of fact that precludes summary judgment."
non-movant

v.

929 F.2d at 608.

and only if —

the non-movant must

(1970)

a

proof

the
If

at

trial,

method
the

material

by

movant

fact,

Id.
the

material

When the
non-movant

which

the

presented

the

movant
evidence

non-movant

"must

respond with evidence sufficient to withstand a directed verdict
motion

at

trial

on

the

material

Fitzpatrick, 2 F.3d at 1116.
evidence
that

the

on

a

material

record

sought

to

be

negated."

If the movant shows an absence of

fact,

contains

fact

the

non-movant

evidence

that

must

was

either

show

"overlooked

or

ignored" by the movant or "come forward with additional evidence
sufficient to withstand a directed verdict motion at trial based

on the alleged evidentiary deficiency."

Id. at 1117.

The non-

movant cannot carry its burden by relying on the pleadings or by

repeating

conclusory

See Morris v.

Rather,

the

Ross,

allegations

contained

663 F.2d 1032,

non-movant

must

1033-34

respond

with

in

the

complaint.

(11th Cir.

1981).

affidavits

or

otherwise provided by Federal Rule of Civil Procedure 56.

as

In this action,

the Clerk of the Court gave

Plaintiff notice

of the motions for summary judgment and informed her of the summary
judgment rules,

opposition,
Therefore,

the right to file affidavits or other materials

and the consequences of
the

notice

F.2d 822,

825

time

filing

for

requirements

(11th Cir.

1985)

materials

default.
of

(Doc.

Griffith v.

(per curiam),

in

opposition

68,

79.)

Wainwright,

772

satisfied.

are

has

nos.

in

The

expired,

and

the

motion is now ripe for consideration.

III.

DISCUSSION

A. Negligence Claim

"Federal

substantive

courts

law

sitting

and

federal

Center for Humanities,
substantive

law

in

diversity

procedural

law."

Inc., 518 U.S. 415, 427

states

that

"tort

apply

cases

are

state

Gasperini

v.

(1996).

Georgia

governed

by

the

substantive law of the state where the tort or wrong occurred."

Bailey

2011) .

v.

Cottrell,

Inc.,

721

S.E.2d

571,

573

(Ga.

Ct.

App.

The alleged tort in this case occurred in Georgia, thus

Georgia substantive law applies.

Under

Georgia

law,

plaintiff to prove that

plaintiff,

proximately

a

(1)

negligence

action

suffered loss

the

or damage

harm

the

the defendant owed a duty to the

(2) the defendant breached that duty,

caused

requires

alleged,

and

(4)

(3) the breach

the

as a result of the breach.
7

plaintiff
Bradley

Center,

their

Inc.

v.

motions

various

Wessner,

for

elements

296

summary
of

S.E.2d

judgment,

Plaintiff's

693,

695

both

Defendants

negligence

(Ga.

1982).

claim.

In

object
The

to

Court

will address only Bayline's claim that it owed Plaintiff no duty
of care, and both Defendants'
1.

claims that they did not breach.

Bayline's Duty

"Certain duties are inherent in human society," including a
duty

to

conduct

oneself

as

a

reasonable

prevent injury to another person.
S.E.2d 121,

if

"in

127

ordinary

(Ga. Ct. App.

prudence,

person

would

so

as

to

Sims v. Am. Casualty Co., 206

1974).

In general,

[the defendant]

might

a duty exists

have

foreseen

that some injury would result from his act or omission, and that

consequences of a generally injurious nature might result."
Thus,

the

existence,

or

non-existence,

of

a duty

Id.

depends

upon

the circumstances surrounding the defendant and his actions.

See

id.

The circumstances surrounding Bayline — that

it contracted

to witness and verify the proper execution of important elevator

safety tests,

the negligent execution of which could seriously

endanger the lives of passengers - establishes that it has at
least a duty of ordinary care toward elevator passengers.
206 S.E.2d at 128.

Sims,

Bayline argues that it owed no duty of care

because it merely witnessed inspections conducted by Otis and

did not participate

in

Summ.

any hands-on maintenance

("Bayline

Mot.

J.")

different

responsibilities

potential

negligence.

at
than

It

oversight

passenger,
S.E.2d

of

however,

Otis

merely

breach of Bayline's duties.

negligent

5);

that

does

alters

work,

not

Bayline

absolve

what

127.

it

of
a

Because Bayline could foresee that

Otis

The

67

had

constitutes

inspections

could harm an

it had a duty to exercise ordinary care.

at

(Doc.

real

question,

elevator

Sims,

therefore,

is

206

whether

Plaintiff produced sufficient evidence for a reasonable jury to
find that either Defendant breached its duty of care.

2.

Plaintiff s

i.

Breach Claim

Georgia Law

Maintenance

providers

"are

passengers'

safety." Brady v.

S.E.2d

64

59,

(Ga.

Ct.

App.

[not]

insurers

Elevator Specialists,
2007).

Because

mechanical devices, they can "become dangerous

without the negligence of anyone." Id.

evidence

repair,
should
evidence

Inc.,

653

elevators

are

at 65.

Thus,

a

regular

program

the record lacks evidence
known

indicates

of
that

a

problem

of

technicians

the

Sears
If the

maintenance

that the provider
with

res ipsa

Ellis v.

388 S.E.2d 920, 921 (Ga. Ct. App. 1989).

demonstrates

have

elevator

and cause injury

loquitur does not apply to elevator accidents.
Roebuck & Co.,

of

elevator,

performed

the

and

knew or
and

no

maintenance

negligently,

the

maintenance

provider

injury due to mechanical malfunction.
Co. ,

694

S.E.2d

147,

155

dissenting)(citing Brady,
S.E.2d 923 (Ga. Ct. App.

For Plaintiff to

(Ga.

Ct.

is

388

S.E.2d

Plaintiff's

App.

Defendants

Brady,
did

B.F.

for

Saul

Prop.

2010) (Andrews,

P.J.,
478

1996)).

prevail on her negligence claim at

at

any

653 S.E.2d 59 and Sparks v. MARTA,

920.

subsequent

negligence.

liable

Beach v.

she must provide "affirmative proof" of
Ellis,

not

The

injury,

elevator's

alone,

653 S.E.2d at 64.

something

wrong —

Defendants'

in

trial,

negligence.

malfunction

do

not

and

establish

Plaintiff must prove that
this

case,

evidence

that

Defendants failed to properly maintain the elevator or failed to

fix a problem they knew or should have known about.

Id. at 64-

65.

To

prove

negligent

maintenance,

a

plaintiff

must

offer

concrete evidence that the defendants did something they should

not have,

or did not do something they should have.

In Brady,

John Brady, a wheelchair-bound paraplegic, injured his head when

backing

out

of

a

crowded

elevator

that

had

approximately eight inches. 653 S.E.2d at 61.
that

the

aware of

maintenance

5-7

company

misleveling

previous three years. Id.
that

the

age

of

the

was

negligent

incidents

at

misleveled

by

Mr. Brady argued
because

that

they

building

in

were

the

He also supplied an expert who opined
elevator
10

mandated

more

frequent

and

comprehensive
62.

inspections

Nevertheless,

the

than

Georgia

judgment for the defendant.

the

defendant

Court

provided.

of Appeals

Id.

upheld

at

summary

It noted that:

Although elevator six was shown not to have properly
leveled twice before within an approximately four-year
period, because ESI's inspection program required weekly
inspections, along with annual, semi-annual, and quarterly
maintenance, elevator six had been inspected or maintained
hundreds of times during this period, and the Brady's do
not show that the inspections or maintenance actually
performed were negligent or that ESI or ACL knew or were

put

on notice

was

during

these procedures

defective.

Id. at 64 (emphasis added).

while the expert

might

that

elevator

six

The Brady court also commented that

have thought more

frequent

maintenance

necessary, he "did not point to anything deficient or negligent
in the maintenance that [the defendant] did perform." Id.
The

evidence

offered

must

also

be

sufficient

for

a

reasonable jury to declare the defendant negligent. See Sparks,
478 S.E.2d at 925-26.

In Sparks, the Plaintiff alleged that the

defendants failed to properly maintain an escalator that injured

him when it malfunctioned. Id^ at 924.

The plaintiff pointed to

evidence of seven calls concerning problems with the escalator;

an employee's deposition testimony that even after an escalator

is repaired, he expects it to break; and deposition testimony
that

the maintenance

provider

"routinely

replace[d]

only

the

broken bearing and not all the bearings, even though replacing
the entire bearing assembly or the entire escalator would extend

11

the

time

court

between

found

issue of

problems."

fact.

Id.

at

925.

evidence

insufficient

Id.

to

give

It declared that,

was expected to malfunction,

dangerous,

these

facts

that

Plaintiff

rise

not

show

that

Id. at 925-26.

"presented

no

to

a

the

triable

"although the escalator

required repairs,

do

negligent in this case."

Nevertheless,

and was sometimes

MARTA

or

Millar

Additionally,

evidence

showing

was

it noted
that

the

defendants could have detected a possible failure of the bearing

through any type of inspection." Id. at 926.
evidence

insufficient

negligent.

GA,

LLC,

find

the

defendants

even

slightly

Id.

Providing evidence
however,

to

The court held the

is far

sufficient to survive summary judgment,

from impossible.

766 S.E.2d 120

(Ga.

See Hill v. Cole CC Kennesaw

Ct.

App.

2015).

Even a single

expert opinion might suffice to create a triable issue of fact.
See

id.

at

122.

In

Hill

the

plaintiff

sued

Kone,

Inc.,

an

elevator maintenance company,

after she tripped on the floor of

a

at

misleveled

elevator.

IcL

summary judgment to Kone,
Id.

It

affidavit
serviced

manual.

found

by
the

Id^

sufficient

the

The

trial

but the appellate
to

create

a

expert

plaintiff's

elevators

121.

that

inconsistent

The affidavit cited:

with

(1)

court

court

factual

the

Kone
Kone

granted

disagreed.
dispute

an

technicians
maintenance

a Kone technician's

deposition denying that certain leveling characteristics should
12

be

routinely

checked

maintenance manual;

(3)

—

issues

direct

contradiction

with

(2) problems with Kone's record keeping;

the fact that all of

misleveling

a

in

the
and

the building elevators had experienced

the

past.

Id.

at

122.

The

affidavit

concluded with the expert's opinion that Kone breached industry
standards

for

followed

those

malfunction.

maintenance

and

standards,

Id.

The

inspection,

it

Hill

would

have

court's

acceptance

demonstrates

that

bear

heavy.

need only provide

some

too

competent

She

evidence

which

could

that

had

prevented

expert affidavit
is not

the

and

of

a

it
the

single

burden a plaintiff must

allow

the

court with

a

reasonable

for

inference of negligence.
ii.

Defendants'

Defendants

sufficient

Arguments

contend

evidence,

or

that

any

Plaintiff

evidence

either party acted negligently.

failed

for

that

to

provide

matter,

The Court agrees.

that

It will

discuss each Defendant's arguments separately.

First,

Defendant

lack of evidence,

negligence
indicate

program.

claim.

that

it

Otis

not

only

demonstrated

Plaintiff's

but it also affirmatively negated Plaintiff's

Records
undertook

and
a

depositions

reasonable

produced

maintenance

by Otis

and

repair

Otis offered evidence that it conducted no less than

twenty-eight tests or inspections on ten separate days in the

13

five months preceding the accident.
scheduled

preventative-maintenance

brake-performance
March

13,

test

controller

on

May

Code,

and

inspections

these

representative
observer.

6,

maintenance

maintenance on February 19.

semiannual

(See Doc.

as

who

(McCray

served
Dep.

at

1-5.)

by

36) .

22,

a

test

and

on

brake

Otis also performed

the

National

witnessed

an

These

included

February

were

as

E.)

brake-maintenance

on

required

inspections

tests

a

(Id. at

81-1,

by

independent
Finally,

Otis

a

Elevator

Bayline

third-party
Maintenance

records indicate no prior problems with the brake system relays

in the previous six months.

(See Doc 81-1, E.)

Otis's evidence

establishes that it maintained a regular maintenance program and

lacked knowledge of any problems with the elevator at issue.

Thus, under Georgia law, it cannot be liable absent affirmative

proof

that

it

negligently

performed

the

maintenance

or

did

indeed know about a problem but failed to fix it.

Second, Defendant Bayline sufficiently established that the

record lacked any concrete evidence that it acted negligently in

the performance of its responsibilities.
reviewed the record,

parties met their burden,
reply

fully

and it cannot find any evidence offered by

Plaintiff that Bayline acted negligently.

Plaintiff's

The Court has

provided

Because both moving

the Court now looks to see if the
sufficient

reasonable jury could find in her favor.
14

evidence

such

that

a

iii.

Plaintiff's Response

After

reviewing

that

Plaintiff

Defendant.

Plaintiff's

has

She

not

has

met

failed

response,

her
to

burden

offer

the
of

any

Court

proof

concludes

for

affirmative

either

evidence

that Otis was negligent in its maintenance and repair or that it
knew

or

Despite

should

ample

have

known

discovery

of

time,

a

defect

Plaintiff

with

the

failed

to

elevator.

offer

any

expert evidence opining on the cause of the accident, what could
have been done to prevent the accident,

done

to

prevent

the

accident.

or what should have been

Furthermore,

Plaintiff

absolutely no evidence demonstrating that Otis

offers

technicians were

negligent in their duties, that Otis was negligent in the scheme
of

its maintenance

program,

or that

Otis

knew

or

that

because

should have

known that this accident might occur.

Plaintiff's

best

argument

is

Mr.

McCray

performed a brake-performance test the day before the accident,
he must

have

contact.

been

While

negligent
this

for not noticing

argument

might

dirty

merit

have

the

if

relay
better

developed, Plaintiff offers no evidence as to how Mr. McCray was
or

could

Plaintiff

have

been

offered

should

have

brake

test,

no

negligent
expert

identified

nor

any

the

in

conducting

opinion

dirty

explanation

as

to

the

whether

contact

when

as

why

to

brake

test.

Mr.

McCray

conducting

he

should

the

have

identified the dirty contact during the brake-performance test.
15

The Court must draw all "justifiable" inferences in favor of the
non-moving party.

in its

favor.

notice

the

But,

it must not draw all possible inferences

While it is possible that

dirty

contact

brake-performance

he

absent

test,

because

further

Mr.

McCray failed to

negligently

performed

evidence,

the

presuming

negligence based on these facts is not justifiable.
Finally,

Plaintiff

attempts

by citing res ipsa loquitur.

not

apply

Castner

to

v.

11901562,

elevator

Otis

at

avoid

Co.,

her

Ellis,

No.

CV

("[T}he doctrine of

388

B.

of

evidence

however,

S.E.2d

res

ipsa

1,

1 5,

loquitor does

judgment,

argue

WL

not

Sparks, 478 S.E.2d

653 S.E.2d at 64-65.

Plaintiff's Claim for Attorneys'

p.

921;

2013

Fees

Plaintiff's complaint stated a demand for attorneys'

(Doc.

does

at

1:11-CV-03488-AT,

apply in the context of elevators. . . .");
at 925-26; Brady,

lack

This legal doctrine,

accidents.

Elevator

*3

to

13.)

Defendants,

that

Plaintiff

attorneys'

fees.

Defendants'

argument.

Plaintiff

in their motions for summary

has
made

no

basis

no

denies Plaintiff's request for attorneys'

for

attempt

The Court agrees with

16

fees.

fees.

obtaining
to

refute

Defendants,

and

IV.

Plaintiff's

because

something

however,
of

finds

that

such

can

went

be

boiled

wrong,

down

someone

did

to

the

wrong.

idea

This

that

idea,

is not something for which Georgia law allows under the

facts

party,

claim

CONCLUSION

this

case.

the

Defendants

and that

that

a

negligent.

For

reasons

reasonable

for summary judgment
Summ.

jury

the

produce

could

above,

the

Court

the moving

either

Defendant

Defendants'

("Bayline Mot.

Additionally,

the

sufficient evidence

find

Court GRANTS

(Doc. 66

J.).)

stated

satisfied their burden as

Plaintiff failed to

Therefore,

("Otis Mot.

the

Summ.

J.);

motions
Doc.

74

because the Court arrived

at its decision needing only the briefs filed by the parties,
DENIES

(Doc.
The

Defendants'

80
Clerk

("Otis
shall

motion

Mot.

for

Hr'g");

ENTER

a

hearing

Doc.

JUDGMENT

82

in

on

summary

("Bayline
favor

of

Mot.

it

judgment.

Hr'g").)

Defendants

and

against Plaintiff and CLOSE this case.

ORDER ENTERED

at

Augusta,

Georgia

this ol /c^ay

September, 2016.

HONORABLE

J.

RANDAL HALL

UNITEDySTATES DISTRICT JUDGE
I"ERN DISTRICT OF GEORGIA

17

of