Appeal from a final judgment and second amended final judgment of the United States District Court for the Southern District of New York, Constance Baker Motley, Judge, entered after a jury trial, awarding plaintiff-appellee Grace Willis $251,865 in damages jointly and severally against defendant-appellant Westin Hotel Company and defendant-appellee Millar Elevator Industries, Inc., and allocating liability 80% to Westin and 20% to Millar; and from a denial of Westin's motion for judgment not-withstanding the verdict or for a new trial. We consider on appeal whether, under New York law, Westin was entitled to a favorable judgment on its cross-claim for indemnification against Millar. Affirmed in part, reversed in part, reversed and remanded in part. Judge Lumbard dissents in a separate opinion.
Lumbard and Mahoney, Circuit Judges, and Cholakis, District Judge.*fn*
In this diversity action, governed by New York law, defendant-appellant Westin Hotel Company ("Westin") has appealed from a final judgment and second amended final judgment entered after a jury trial in the United States District Court for the Southern District of New York, Constance Baker Motley, Judge, awarding plaintiff-appellee Grace Willis ("Willis") $251,865 jointly and severally against Westin and defendant-appellee Millar Elevator Industries, Inc. ("Millar"), and allocating damages 80% against Westin and 20% against Millar. Westin also appeals from the denial of its motion for judgment notwithstanding the verdict and a new trial.
Willis was injured on departing an elevator at the sixteenth floor of the Plaza Hotel (the "Plaza") in Manhattan on September 8, 1984. The elevator was not level with the floor. Westin owned and operated the Plaza, and had contracted with Millar for Millar to service the Plaza's elevators. Willis brought suit initially against Westin (which filed a third-party complaint against Millar), and then against both Westin and Millar. Westin then brought cross-claims against Millar, and Millar against Westin, for indemnification and contribution. Westin also brought an additional contractual cross-claim against Millar.
The original final judgment did not address the cross-claims between Westin and Millar, except inferentially by apportionment of the damages payable by each to Willis. The initial amended final judgment dismissed Westin's cross-claim for indemnification against Millar,*fn1 granted judgment for Westin and Millar on their cross-claims against each other "to the extent of any amount paid in excess of its pro rata share," and declared that it was entered nunc pro tunc as of the date of the original judgment. The second amended final judgment is identical to the initial amended final judgment, except that the nunc pro tunc feature is deleted.
Willis advised this court by letter that the judgment in her favor had been paid in full, presumably by Millar, which did not appeal that judgment. Willis accordingly did not participate in this appeal.
On appeal, Westin contends that Willis' case against Westin should never have gone to the jury, since only Millar caused Willis' injury. Under New York law, however, Westin's duty to plaintiff to maintain a safe elevator was nondelegable, with the result that vis-a-vis Willis, Westin was responsible for any derelictions by Millar. We nonetheless find that Westin was entitled, as a matter of law, to a favorable judgment on its cross-claim for indemnification against Millar.*fn2
We accordingly affirm the second amended final judgment insofar as it was in favor of Willis jointly and severally against Westin and Millar and dismissed all claims by and against Westinghouse; reverse its apportionment of the judgment in favor of Willis between Westin and Millar, dismissal of Westin's cross-claim for indemnification against Millar, and grant of Westin and Millar's cross-claims for contribution against each other; and remand for the entry of judgment for Westin on its cross-claim for indemnification against Millar, the dismissal of Westin's contractual cross-claim as moot, and the dismissal of Millar's cross-claim for indemnification against Westin.
Sometime between 7:30 and 8:00 p.m. on September 8, 1984, Willis boarded elevator number eight at the Plaza and was injured while departing from that elevator, which misleveled two inches above the sixteenth floor.
At trial, Millar's maintenance supervisor established that the cause of the accident was a malfunction in the elevator's downleveling relay coil. The supervisor also testified that the Millar mechanic stationed at the hotel was required regularly to inspect and examine the leveling equipment. The mechanic stationed at the hotel, however, testified that he did not inspect the leveling equipment so long as the elevator was operating properly. Further, his description of the preventive maintenance procedures which he followed omitted any mention of maintaining useful life records concerning relays and other components of the elevator equipment.
Dr. Frederick Ryder, the sole expert in this case, testified for the plaintiff that the accident was caused by a lack of "preventive maintenance," which he defined as including "inspection, maintenance, repair and service that is done in advance of a defect actually occurring with a view to insuring that no defect occurs in the future." Preventive maintenance with respect to relays, including the one that malfunctioned to Willis' detriment, Dr. Ryder explained, entails the maintenance of records showing the useful life of the relays. Such records provide a basis for replacement of relays prior to any normally anticipated failure. Absent such records, Dr. Ryder testified, it is impossible to tell that a relay is, or is in danger of becoming, defective. He added that not keeping records to determine useful life deviates from the accepted standard of care in elevator preventive maintenance.
Dr. Ryder also testified, based upon his review of the pertinent maintenance records, that there had been a number of instances over the year prior to September 8, 1984 in which elevator number eight had misleveled, and that this "should have required more than a fix of the situation which caused the defect in each case."
It was also shown at trial that pursuant to a contract with Westin, Millar assumed responsibility to "furnish its FULL SERVICE" on certain elevators at the Plaza, including elevator number eight, which undertaking included the repair and replacement of mechanical parts "when conditions warrant, in the opinion of [Millar]," and the periodic examination of "Car Safety Devices" and "governors." Westin's obligations were set forth in paragraph seven of the contract, as follows:
[Westin] will maintain personnel competent to inspect and detect irregularities or idiosyncrasies in operation and will shut down the elevators upon detection of the same and notice of such to [Millar].
Willis contended that Westin had failed to comply with the requirement as to personnel. Specifically, Willis developed evidence, by cross-examination of Westin witnesses, from which it might be inferred that personnel "competent to inspect and detect irregularities or idiosyncracies" were not on duty during weekends at the Plaza. Willis also argued that Westin had notice of the defect and did not inform Millar. The evidence for this contention consisted of testimony by Willis that she told one or more bellmen at some time prior to the accident on September 8, 1984, and a specified porter at some time prior or subsequent to the accident, that elevator number eight was misleveling; and the fact that Westin received copies of Millar's repair tickets, and maintained a "Millar elevator breakdown log," which allegedly put Westin on notice of Millar's inadequate maintenance.
Westin vigorously argued to the district court that under existing New York case law, its contract absolved it of all liability unless it had actual notice of the defect and failed to notify Millar. Over the objection of Westin, which moved for a directed verdict on plaintiff's claim and Westin's cross-claim for indemnification against Millar, the case against Westin was submitted to the jury in the form of special interrogatories. The jury found that both Westin and Millar were negligent, and that the negligence of each was a proximate cause of the accident. Damages were apportioned 80% against Westin and 20% against Millar. Westin's subsequent motion for judgment notwithstanding the verdict or a new trial was denied. Westin's cross-claim for indemnification was dismissed in the court's amended final judgment and second amended final judgment. This appeal followed.