Florida/Georgia Personal Injury & Workers Compensation

...Thus, we do not reach this issue; however, we note that the existence of a maintenance contract does not relieve the owner of the elevator from liability. See Otis Elevator Co. v. Chambliss, 511 So.2d 412, 414 n. 4 (Fla. 1st DCA 1987); Ferguson v. Westinghouse Elec. Corp., 408 So.2d 659, 660 n. 1 (Fla. 3d DCA 1981); § 399.02(5)(b), Fla....

...was located, and Joy Realty, the leasing agent for the building. At trial, defendants' motion for directed verdict was granted on the ground that Nicosia's unforeseeable actions in escaping from the elevator were the intervening cause of the injury. Section 399.02(2), Florida Statutes (1987), adopts the American Standard Safety Code for Elevators, Dumbwaiters and Escalators [ASME/ANSI], hereinafter the Elevator Safety Code, which sets forth the governing rules for elevator safety in Florida....

...tside for anyone trapped in the elevator. [1] § 211.1(a)(2), Elevator Safety Code (1987). The record shows that the telephone in this elevator was out of service at the time of the elevator malfunction which precipitated Nicosia's injury. Moreover, section 399.02(5)(b), Florida Statutes (1987), makes the elevator owner responsible for the safe operation and proper maintenance of the elevator. Failure to comply with section 399.02 constitutes negligence per se....

...er se). It follows that the failure in this case of the building owner to maintain the elevator in proper working order and the owner's failure to provide the required voice communication to the outside for trapped elevator passengers as required by section 399.02 amounted to negligence per se. See Davis, 515 So.2d at 277; Alford v. Meyer, 201 So.2d 489 (Fla. 1st DCA 1967), cert. denied, 209 So.2d 671 (Fla. 1968). On the other hand, section 399.02(5)(b) does not apply to Otis, the service contractor. Prior to its amendment in 1983, section 399.02(5)(b), then section 399.02(6)(b), provided: The owner or his duly appointed agent shall be responsible for the safe operation and proper maintenance of the elevator......

...denied, 157 So.2d 817 (Fla. 1963). Upon retrial, the jury may also, of course, consider the issue of comparative negligence on the part of the plaintiff. See de Jesus, 281 So.2d at 198. Accordingly, it was error to direct a verdict for the building owner who was charged by section 399.02 with the responsibility to properly maintain the elevator and to provide outside voice communication....

...Carroll, Jr. of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellee/cross-appellant. ORFINGER, Judge. The issue on appeal is whether the trial court committed reversible error in refusing to instruct the jury that a violation of section 399.02(6)(b) constituted negligence per se....

...done. At trial, Davis' expert testified that the bottom conductor switch was energized because something in the unit was "broken or shorted out or grounded" and that with appropriate maintenance the system would not have failed. Davis requested that section 399.02(6)(b), Florida Statutes (1979) [1] and standard Jury Instruction 4.9 be read to the jury....

...The evidence was sufficient to go to the jury on the question of Otis' negligent maintenance of the elevator and thus the trial court did not err in denying the motion for directed verdict. *279 REVERSED and REMANDED for new trial. DAUKSCH and COBB, JJ., concur. NOTES [1] Section 399.02(6)(b), Florida Statutes (1979) reads, in pertinent part: The owner or his duly appointed agent shall be responsible for the safe operation and proper maintenance of the elevator, ......

...Samuel Tyler Hill, Fort Lauderdale, and Edna L. Caruso, West Palm Beach, for appellant. Ralph F. Pelaia, Jr., Fort Lauderdale, Larry Klein, West Palm Beach, and Birr, Bryant & Saier, P.A., Fort Lauderdale, for appellee. HURLEY, Judge. The issue is whether a violation of Section 399.02(6)(b), Florida Statutes (1981) (which requires proper maintenance of elevators), constitutes negligence per se....

...1973); and (2) when the statute "establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury." Ibid. See also, Florida Freight Terminals, Inc. v. Cabanas, 354 So.2d 1222 (Fla. 3d DCA 1978); Hines v. Reichhold Chemicals, Inc., 383 So.2d 948 (Fla. 1st DCA 1968). Section 399.02(6)(b) falls squarely within the second category....

...being rebuilt to comply with the Elevator Safety Code, [2] nevertheless, such elevators "shall be maintained in a safe operating condition and shall be subject to inspections and tests required by s. 399.08." Section 399.03, Florida Statutes (1979). Section 399.02 also provided that the owner or his "agent" shall be responsible for the safe operation and proper maintenance of his elevator....

...In 1983, the legislature, notwithstanding the Sunset Act, readopted and revised Chapter 399. The 1981 and 1983 legislative changes are of no consequence to the case sub judice as the alleged negligence occurred prior to the October, 1979, accident. [2] Section 399.02(2) provided for the division's adoption of an Elevator Safety Code....

...Johnson and Joel R. Brown, St. Petersburg, for Appellees. CASANUEVA, Acting Chief Judge. Golden Shoreline Limited Partnership appeals a partial summary judgment holding it liable to Mr. and Mrs. McGowan and their co-plaintiffs based upon an alleged violation of section 399.02(5)(b), Florida Statutes (1993)....

...In its answer Golden Shoreline denied the allegations and asserted a number of affirmative defenses, one of which was that the plaintiffs' injuries resulted from Millar's negligence. The trial court held, in granting Mr. and Mrs. McGowan a partial summary judgment on liability, that section 399.02(5)(b) made Golden Shoreline strictly liable as well as negligent per se....

...The second type of negligence per se results from the violation of a statute that seeks to protect a particular class of persons from a particular injury by establishing the duty to take precautions to avoid that injury. deJesus v. Seaboard Coast Line R. Co., 281 So.2d 198 (Fla.1973). We conclude that section 399.02(5)(b) established this second type of duty—to protect those using elevators from injury resulting from poor maintenance of the elevator. In reviewing whether a violation of the precursor statute to section 399.02(5)(b) would require a negligence per se instruction, the Fourth District held: Elevators are commonplace....

...Consequently, it is consistent with the body of law cited above to hold that a violation of this statute constitutes negligence per se. Reliance Elec. Co. v. Humphrey, 427 So.2d 214, 214-15 (Fla. 4th DCA 1983). We, too, conclude that a violation of section 399.02(5)(b) constitutes negligence per se but not of the type that imposes strict liability....

...erally or specifically. [2] Carvalho argues that even if the admission of White's testimony was error, it was harmless. We can hardly ascribe this as being harmless error. Although she claims that there was sufficient evidence to show a violation of section 399.02(5)(b), Florida Statutes (1997), which makes the escalator owner responsible for its safe operation, this section does not apply to Schindler who contracted with Sears to maintain the escalator....

...The court held that violation of this statute constituted negligence per se, because it protected against a particular class of persons (motorists crossing railroad tracks after dark) from a particular injury (colliding with a stopped train). Id. at 201. Nor are the NESC code sections like the provisions of section 399.02(5)(b), Florida Statutes, providing an owner with the responsibility for the proper maintenance of an elevator....

...chair argument, i.e., that the owner of the elevator (the bank) was liable to the plaintiff for the negligent operation and maintenance of the elevator. The trial judge denied the elevator company’s request for the court to instruct the jury that section 399.02(5)(b), Florida Statutes, provides that an elevator owner is responsible for the safe operation and proper maintenance of the elevator but permitted defense counsel to argue that statute to the jury as part of the empty chair argument....

...If the total damages exceeded $510,000, Highwoods would pay $510,000. 3 cause of the plaintiffs’ injuries coupled with the court’s previous determination that Highwoods remained vicariously liable to the plaintiff by operation of its non-delegable duty under section 399.02(5)(b), Florida Statutes, satisfied the requirements for Highwoods to be indemnified under the clear and unambiguous indemnity provision of the contract....

the elevator owner may be assigned by lease. Section 399.02(5)(b), Florida Statutes (1985). At the charge