PLAINTIFF'SMEMORANDUMINOPPOSITIONTODEMURREROFOTIS · On demurrer, Otis cannot dispute the allegations of the Amended Complaint that its before, theyhadnoidea whyit badoccurred,buttheyput

VIRGINIA:

IN THE CIRCUIT COURT OF THE COUNTY OF HENR1CO

ELIZABETH A. MARKERT Plaintiff,

v. Law No.: CL 06-2757

RICHMOND INTERNATIONAL RACEWAYpING"*/ al: Defendants.

PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEMURRER OF OTIS

COMES NOW the Plaintiff, Elizabeth A. Markert ("Markert"), by counsel, and in

opposition to Defendant Otis Elevator Company's Demurrer to the Plaintiffs allegations of

negligence against Otis Elevator Company ("Otis") states as follows:

STATEMENT OF FACTS

The allegations of the Plaintiffs Amended Complaint and action for negligence against

Otis are taken as true for purposes of the trial court's assessment and decision on Otis's

Demurrer. See authorities cited infra. The Amended Complaint alleges, inter alia, that Markert

was a business invitee on the premises of the Richmond International Raceway, Inc. ("RIR") on

September 11, 2004, and was seriously injured when an elevator on the premises suddenly

dropped, then suddenly stopped, causing her to be thrown violently about inside the elevator and

to sustain serious and permanent injuries. See, e.g., Amended Complaint ffi| 8-13. Markert has

brought this action asserting negligence claims against both RIR and Otis. Markert has sued RIR

on premises liability theories and has sued Otis for negligence in connection with the elevator

services it provided, the work it performed on the elevator, and its activities with respect to the

elevator.

Although RIR owned the elevator, Otis provided and performed the elevator maintenance

and repair services for the elevator. See Amended Complaint H 26. Markert's claim against Otis

specifically alleges:

27. In the course of any maintenance and repair work and

responsibilities relating to the Subject Elevator, Otis owed the duty to

-Markert-and others-lawfully-using the Subject Elevator on"the["Raceway

Premises to use reasonable care in connection with and in the performance

of any such work and responsibilities.

Amended Complaint T| 27. The Amended Complaint also expressly alleges thai "[i]t was

reasonably foreseeable to Otis, and its officers, directors, agents and/or employees that injury,

serious injury and/or death could and would be caused to invitees and other persons lawfully

using the Subject Elevator on the Raceway Premises if Otis and its officers, directors, agents

and/or employees failed to fulfill and breached the foregoing duties and responsibilities."

Amended Complaint 1) 28.

Otis had not only agreed to provide elevator services (a fact which Otis emphasizes),

it actually did perform and provide elevator services (maintenance, monitoring, testing and

repairs) on the elevator in question (a fact which Otis largely ignores). In fact, on the day

before Markert's injury, Otis had serviced, inspected, monitored, tested and provided services on

the very same elevator which caused Markert's injury on September 11, 2004. The day before,

on September 10, 2004, the same elevator (while under Otis's actual on-site care, monitoring,

and supervision) had suddenly malfunctioned, stopped and become entrapped with numerous

passengers on board. Otis employees were already on-site monitoring all three RIR elevators.

Otis employees responded to the entrapped elevator, negligently examined and tested the

elevator, negligently performed certain work, and then negligently put the elevator back into

operation.

Plaintiff contends that Otis negligently placed the elevator back into service without

adequately determining the cause of and solution to the problem that existed at the time of that

entrapment on the day immediately prior to Markert's injuries. In fact, the Otis employees knew

that-the-problem that had occurredwith the elevator was a problem thaT tbTey had fiever seen

before and for which they had not determined a cause. Despite knowing that they bad no idea

what caused the malfunction, the Otis employees shockingly decided to place the elevator back in

service. Despite Otis's enthusiasm for arguing that RIR alone is responsible for the injuries to

Markert, it. is undisputed that the Otis employees were the ones who chose to and did put the

elevator back into service. It is also undisputed that the Otis employees were the only ones at the

site who had the knowledge and equipment to free the elevator from its entrapment and place it

back into service. It was the Otis employees who by their negligent actions placed the dangerous

elevator back into service.

Otis employees put the elevator back into service even though they did not know what

was wrong with it and thus had no idea when it might malfunction again. Moreover, Otis

employees put the elevator back into service even though they never even tested it with a full

load prior to returning it to public service. And the Otis employees did nothing to warn or

caution the public of the fact that the elevator had recently malfunctioned.1 They simply put the

The discovery responses of Otis indicate that Otis intends to equivocate regarding whether theelevator "malfunctioned." Otis apparently hopes to argue to the jury that an elevator whichbegins to operate, then suddenly drops some distance, and then suddenly stops, has not"malfunctioned" but instead has merely "gone on safety." The jurors will need to decide whetherthis argument has any merit or consequence. The fact is that the elevator operated, suddenlydropped some distance, and then suddenly stopped thereby throwing the occupants around andinjuring some of them. Otis says tin's occurred because the safeties suddenly applied and stoppedthe elevator. Otis's employees admit that the very same problem occurred less than 24 hours

dangerous elevator back into service even though they knew that the problem had not been fixed

or even diagnosed, and they had no reason to believe that it would not occur again.2

Thus, although RJR is ultimately responsible since the duty of the premises

owner/operator is nondelegable, Otis is also liable for its own negligent artinnc The

Plaintiff, has specifically alleged thai-Otis and its employees were guilty of neglipnfactJbhs and

omissions in "allowing, permitting, and causine the Subject Elevator to be operated and used

even though it had failed to function properly the previous day[.]" Amended Complaint fl 29Q)

(emphasis added).

The Plaintiff has also alleged that the Defendant Otis breached negligence duties owed to

the Plaintiff in "negligently and wrongfully allowing [and] causing . . . persons (including

Markert and other business invitees) to use the Subject Elevator, even though it was in an

unreasonably dangerous condition and/or even though Otis Elevator knew or should have known

that this created an unreasonable danger and hazard[.]" Amended Complaint fl 29(e).

On demurrer, Otis cannot dispute the allegations of the Amended Complaint that its

before, they had no idea why it bad occurred, but they put the elevator back in service anyway.This is a jury-submissible case of negligence regardless of the seemingly innocent words Otishopes to use to describe the events. See also footnote 2.

These and many other facts supporting Otis's negligence are established in the discoverydepositions of Otis's employees. These detailed facts do not, of course, need to be alleged in theComplaint, since negligence may be averred generally. "An allegation ofnegligence orcontributory negligence is sufficient without specifying the particulars of the negligence." Rule3:18(b), Rules ofthe Supreme Court of Virginia. "Every pleading shall state the facts on whichthe party relies in numbered paragraphs, and it shall be sufficient if it clearly informs the oppositeparty of the true nature of the claim or defense. Rule 1:4(d), Rules ofthe Supreme Court ofVirginia. Otis never filed a motion for bill ofparticulars seeking any more detailed statement ofits wrongdoing.

negligent work and services affirmatively caused the elevator to be operated in a condition which

Otis knew or should have known was dangerous and which consequently caused harm to

Markert. Rather. Otis's Demurrer oddly contends that Otis's contractual relationship with

RIR somehow insulates and immunizes it from any and all liability in tort for its negligent

work, services, and activities-with-respect to the eievatn^^^

elevator services under a contract with RIR it cannot be held liable for negligence to members of

the public, such as Markert, who came onto the RIR premises and used the elevator which Otis

had returned to service in a condition it knew or should have known was dangerous. In support

of its Demurrer, Otis states that "[a]ny alleged breach of contractual duties by this Defendant did

not constitute a breach of any common law duty to the Plaintiff," (Demurrer and Answer at H 1

(j)), and that, "[a]s a matter of law, Plaintiff may not assert a cause of action in tort against this

Defendant for its alleged failure to do that which it was only required to do, if at all, by virtue of

a contract or private agreement to which the Plaintiff was not a party." (Id. at "fl 1 (k)).

As will be discussed at length below, Otis's Demurrer is without merit. Indeed, the

Virginia Supreme Court has expressly approved a negligence liability theory against an

elevator company in a very similar case, where the elevator company allegedly negligently

performed its elevator inspection and maintenance contract and allowed an elevator with

problems of an undetermined nature to remain in service thereby causing injury to

elevator passengers with whom the elevator company had no contractual relationship.

Parker v. Elco Elevator Corp., 250 Va. 278, 281, 462 S.E.2d 98, 100 (1995) ("Parker also

alleged that Elco was aware of two previous incidents in which the multispeed governor was

activated by an overspeed condition. . . . Parker asserts that, under these conditions. Elco

was negligent in not removing the elevator from service until the cause of (he excessive

speed was identified and corrected. This theory of the case was not dependant on knowledge

of the specific elevator defect causing the incident which allegedly resulted in injuries to Parker.

Therefore, Parker was entitled to present evidence to support his alternative negligence

and to offerMeeseasan expert on this stan^

POINTS AND AUTHORITIES

1. The standard for a decision on demurrer demonstrates that Otis's Demurrerin this case must be overruled.

In considering the Defendant's Demurrer, the Court must accept as true the facts as stated

in the Plaintiffs Amended Complaint and draws all reasonable inferences therefrom in favor of

the Plaintiff. See Adkins v. Dixon, 253 Va. 275, 276, 482 S.E.2d 797 (1997). Moreover, a

demurrer "tests the legal sufficiency of facts presented in the Plaintiffs pleading. A trial court

must consider the pleading in the light most favorable to the Plaintiff and should sustain the

demurrer only if the pleading fails to state a valid cause of action." Boland v. Rivanna Partners,

69 Va. Cir. 308, 308-09, 2005 Va. Cir. LEXIS 320 (Charlottesville City Cir. Ct. 2005); see also

Sanchez v. Medicorp Health System, 270 Va. 299, 618 S.E.2d 331 (2005); W.S. Carnes, Inc. v.

Board ofSupervisors, 252 Va. 377,478 S.E.2d 295 (1996).

The Plaintiff states that Otis's Demurrer and the Otis's Memorandum in Support of

Demurrer do not accurately and completely review and state the allegations and nature of the

Amended Complaint. The Plaintiff has herein set forth some, but not necessarily all, of Otis's

mistaken and incomplete assertions regarding Plaintiffs Amended Complaint. Plaintiff states

that the Court should refer to and rely upon the actual allegations of the Plaintiffs Amended

Complaint and not Otis's characterizations of the Amended Complaint.

In the instant case, contrary to Otis's contentions, Plaintiff has alleged that Otis

committed acts of clear and affirmative negligence and did owe common law negligence duties

to Ihe Plaintiff in-this-easer and Otis breachedthose-duties. Therefore; OtisVDemurTer should be

overruled.

Otis's position is contrary to reason and justice. Under Otis's approach, if the elevator

fell three stories and Otis inspected it, failed to determine the cause of the problem, but then put

it back in service even though it had no idea why it fell, Otis would face no liability in tort to

persons injured when the elevator fell again the next day. This cannot be the law and indeed it is

not the law. Not surprisingly, the authorities establish that sustaining the Demurrer of Otis under

the circumstances of this case would constitute reversible error.

2. Otis, having actually undertaken to inspect, test, maintain, and operate thiselevator, is liable in tort to those foreseeably injured by Otis's negligence.

Contrary to the suggestion by Otis, the Plaintiffs negligence action is not based purely

and solely on Otis's contract with RJR. The contract between Otis and RIR certainly required

Otis lo perform certain inspection and repair duties with regard to the defective and dangerous

elevator, but the facts of this case as well as established case law also demonstrate that Otis

owed and breached common law duties to Plaintiff that are actionable in tort.

The crux of Otis's argument in support of its Demurrer seems to be its erroneous

contention that Plaintiffs theory is that Otis merely failed to act at all (mere nonfeasance) and

thereby failed to prevent the malfunction. In fact, however, the entire premise of Olis's

Demurrer is wrong, since the actual allegations of the Amended Complaint establish that Otis

affirmatively engaged in negligent actions and activities (malfeasance) in connection with the

elevator that caused Markert's injuries. Otis further argues that merely because the work and

services it performed with respect to the elevator arose out of its contractual relationship with

RJR the Court must hold-that Gtisowed no common~lawduty at all to persons usinglhe "el evaloT.

Otis is wrong, both as to its characterization of the basis of the Plaintiffs claim of negligence

against Otis and also as to the law that controls in the instant case.

First, it is true that the contract between Otis and RIR certainly forms the general

background for Otis's duties to inspect, repair and warn in the present case. Obviously, if RJR

had contracted with some other elevator company and Otis had undertaken no work, services, or

activities with respect to the elevator, Otis would have no liability in tort. If that other elevator

company had performed services and acted negligently in connection with the elevator, as Otis

did in the present case, then that other elevator company would naturally be the party defendant

here. In this case, however, it was Otis that undertook to inspect, test, maintain and repair the

subject elevator.

Moreover, Otis did not merely agree to inspect, test, maintain, and repair the elevator and

keep it in a safe and proper condition, Otis actually extensively engaged in the provision of these

services. This is not a case of mere nonfeasance, such as where a contractor simply never shows

up to provide services. Rather, this is a case of misfeasance in which Otis affirmatively engaged

in providing services with respect to the elevator and did so negligently, thereby causing and

allowing the elevator to be put back into and remain in service in a dangerous condition which

foreseeably caused injury to Plaintiff.

h\ fact, employees of Otis knew that the elevator had suddenly slopped and entrapped a

carload of passengers just the day before this incident. Otis's employees were on site and they

inspected and tested the very elevator which caused Plaintiffs injury the day before the present

accident. Yet, even though they failed to determine why the elevator was malranctioning, Otis's

employees negligently, carelesslyrand recklessly placed theelevatorback in service: Moreover,

Otis failed to wam RIR invitees and others about the hazards, even though Otis knew that

business invitees, such as Markert, would be using the elevator which Otis was aware had just

become entrapped due to a problem ofundetermined origin which Otis affirmatively chose to put

back into service. Less then 24 hours later, the elevator suddenly stopped and became entrapped

again in the same manner.

Thus, the fiindamental premise of Otis's Demurrer is a false premise and the Demurrer

fails for that reason. The premise of Otis's Demurrer clearly is that this is a case of mere

nonfeasance. Otis asserts: "The Amended Complaint does not allege that Otis affirmatively

acted in a manner that caused the occurrence." Defendant Otis Elevator Company's

Memorandum in Support of Demurrer ("Otis Memorandum") at 4. Again later Otis contends:

"A failure to act - such as Otis Elevator Company's alleged failure to maintain, repair, test or

provide information about another party's elevator - does not give rise to a cause of action apart

from such a duty." Otis Memorandum at 4. Yet again Otis argues: "In particular, when the tort

alleged does not involve an act causing injury, but rather involves an alleged failure to act so as

to prevent an injury (non-feasance), the source of the supposed duty to act must not arise from

the contract alone." Otis Memorandum at 5.

In fact, however, the Amended Complaint alleges more, more much, than mere

nonfeasance. The Amended Complaint alleges, inter alia, that "[i]n the course of any

maintenance and repair work and responsibilities relating to the Subject Elevator, Otis owed the

duty to Markert and others lawfully using the Subject Elevator on the Raceway Premises to use

reasonable care in connection with and in the performance of any such work and

responsibilities^- -Amended Complaint-T| 27 (ttiiph^iS"aad^~TnV7^'cnawTCoinp]amt

alleges that it was reasonably foreseeable to Otis that a breach of this duty would cause injury to

persons using the elevator. Amended Complaint 1 28. The Amended Complaint alleges that

Otis and its employees breached their duties and proximately caused injury to Markert by their

"wanton . . . negligent and wrongful actions and omissions[.]" Amended Complaint U 29

(emphasis added). The Amended Complaint alleges that Otis and its employees caused

Markert's injuries by "wantonly, . . . negligently, and wrongfully allowing, permitting, and

causing the Subject Elevator to be kept, operated and used on the Raceway Premises even

though Otis knew and/or should have known thai" it was in an unreasonably dangerous condition

and its condition, operation, and use violated federal, state and local laws and standards.

Amended Complaint ffl| 29(a), 28(b) (emphasis added). The Amended Complaint further alleges

that Otis and its employees caused Markert's injuries by:

willfully negligently, wantonly, carelessly, recklessly and/or negligently and

wrongfully allowing, permitting, and causing the Subject Elevator to be

operated and used even though it had failed to function properly the

previous day and/or at one or more other times in close proximity to and

prior to the events alleged herein, and willfully negligently, wantonly,carelessly, recklessly and/or negligently and wrongfully allowing,

directing, inviting, and causing Markert and other invitees to board the

Subject Elevator thereby causing injury to the Plaintiff[.]

Amended Complaint H 29(j) (emphasis added).

10

All of the foregoing allegations show that the Amended Complaint charges Otis with

more than mere nonfeasance but instead has alleged that Otis affirmatively committed actions

which caused the elevator to be operated and used even though Otis knew it was in a dangerous

condition. These allegations are fully sufficient to state a common law negligence claim against

Otis: ^Moreover, although the Plaintiff need not adduce evidence" in" oppositiontothe Demurrer

and the Plaintiff would object to any attempt to convert the Demurrer into a motion for summary

judgment involving matters outside the pleadings, the Court may wish to know that there is

extensive evidence which shows that Otis and its employees did indeed by their negligent actions

knowingly place this dangerous elevator back in service for use by Markert and others.

For example, Otis service foreman Clyde Wayne Jackson has testified in his deposition

that Otis employees had "locked and tagged" the malfunctioning elevator on Friday and had then

put it back into service. Only Otis employees had the key necessary to put the elevator back into

service. It was the Otis employees who negligently unlocked the elevator and put it back into

service even tliougb they knew that they had not determined what caused it to become entrapped

on Friday, the day before the same thing happened on Saturday and injured Markert. Jackson

testified as follows in his deposition:

53

4 Q So at that point, then, did you make (he

5 call to put — did you make the judgment (o put the

6 elevator back in service?

7 A Yes, I did.

8 Q And it's fair to say at that point

9 that — as we talked about before, neither at that

10 time nor even now do you know what caused the

11 elevator to stop?

12 A No.

13 Q Now, do you recall approximately what

14 time Friday you put the elevator back in service?

11

15 A No, 1 didn't pay attention.

16 Q But the raceway was still open for

J 7 business?

18 A Yes, sir, the race was going on.

19 Q Earlier you used the word locked and

20 tagged or something like that?

21 A Yes, sir.

22 Q What do you mean by that when you say an

23 elevat6r-was-)ocked:andtagged?— — -

24 A To disconnect the power to the elevator.

25 It has a switch called a disconnect. We pull the

54

1 handle, which takes the power away. We put a lock

2 and a tag on it so no one can pul) the switch on it.

3 Q Now, is this switch in the control room?

4 A Yes.

5 Q And there's actually like a physical lock

6 on it that you have to have a key to unlock?

7 A We use what's called a group lock, which

8 means any mechanic can take that off. If you're

9 working on it individually, then you put a personal

10 lock on it.

11 Q But when you got there, it was locked and

12 tagged already?

13 A Yes.

14 Q And the lock it had on it was a group

15 lock?

16 A Yes.

17 Q And this is a lock that is applied to the

18 power switch in the control room that was in the off

19 position?

20 A Yes.

21 Q And only Otis personnel would have the

22 key to that lock?

23 A Yes.

Deposition of Clyde Wayne Jackson at 53-54 (emphasis added). The assertion in Otis's

Demurrer that this is a case of mere nonfeasance and Otis did not actually engage in any

negligent actions or activities is quite simply false.

12

None of the cases cited and relied on by Otis are controlling or determinative of the

particular factual situation at issue here. For instance, Otis cites cases such as Augusta Mutual

Insurance Co. v. Mason, 274 Va. 199, 645 S.E.2d 290 (2007); Holies v. Sunrise Terrace, 257 Va.

131, 509 S.E.2d 494 (1999); Foreign Mission Board v. Wade, 242 Va. 234, 409 S.E.2d 144

(1999); Grayv. TNOVA Health Care Services;251 Va. 597, 514 S:E.2d-3S511999), and Kamlar

Corp. v. Haley, 224 Va. 699, 299 S.E.2d 514 (1983), as standing for the proposition that, to

establish negligence, "the duty alleged to have been tortiously breached must be a common law

duty, not a duty arising between the parties solely by virtue of a contract." Otis Memorandum at

5 (quoting Kamlar Corp., 224 Va. at 705,299 S.E.2d at 517) (emphasis added).

In the present case, however, contrary to the Defendant's suggestion, Markert is not

basing her claim solely on the breach of a contractual duty owed by Otis. Here, Otis breached

both contractual duties and well-established common low duties when it undertook to provide

and actually did provide and perform inspection, testing, maintenance, and operation

services with respect to the elevator and performed such services in a negligent manner that

caused and allowed an unfit and dangerous elevator to remain in service posing a foreseeable

danger to the public. In such a situation, a person or entity providing services under a contract

clearly may be held liable for its negligent actions under Virginia law. See Boland v. Rivanna

Partners, 69 Va. Cir. 308, 311-12 (2005) (opinion by Circuit Judge Edward L. Hogshire) (copy

attached hereto as Exhibit A). The existence of the contract simply does not insulate the

tortfeasor from liability for its negligence. Indeed, the fact that Otis was providing services under

a contract with RIR could not possibly insulate Otis from liability to third parties for its negligent

actions since the third parties (including Markert) were strangers to the contract and thus their

13

rights under the common law cannot be diminished by ils provisions.

In the Botand case, the defendant was a contractor who had been hired by a premises

owner to remove ice and snow from its parking lot. It is unclear from the facts of the case

whether the contractor simply failed to clear ice and snow, or if it did so carelessly so as to leave

patches of dangerousblackice—bvany event, the invitee plaintiff fell and wasinjured on "a patch"

of black ice and sued the owners of the parking lot and the contractor who had been hired to

remove snow and ice. The independent contractor made exactly ihe same type of argument that

is made by Otis in this case. Judge 1-logshire soundly rejected the argument. The contractor

demurred to the negligence allegations and argued that it owed no duty to the plaintiffbecause its

contract was with the owner, and it did not owe an independent tort duty to the plaintiff. In

overruling the demurrer by the contractor (the Johnsons), and allowing the case to go forward,

Judge Hogshire reasoned in part as follows:

[T]he Johnsons retained an independent duty to use reasonable care

because the act of clearing the parking lot was not just for the benefit of

Rivanna, but also for the benefit of Plaintiff and others like her. It was

clearly foreseeable that people other than Rivanna would be affecled by

the Johnsons' actions. As Justice Cardozo staled, "It is ancient learning

that one who assumes to act, even though gratuitously, may thereby become

subject to the duty of acting carefully, if he acts at all." Glanzer v. Shepard,

233 N.Y. 236, 135 N.E. 275, 276 (N.Y. 1922). See also Nolde Bros., Inc. v.

Wray, 221 Va. 25,28,266 S.E.2d 882 (1980) (quoting Glanzner). This duty

is separate from any contractual duties due to the owner of the

property. The independent contractor who acts to provide a service

which clearly impacts the safety of other persons retains an

independent duty of care to any person who could be affected by a

careless performance of that service. The Restatement (Second) of Torts

states, "In general, when a person undertakes to render services to another,

which he should recognize as necessary for the protection of a third person,

he is subject to liability to the third person for physical harm resulting from

his failure to exercise reasonable care to protect his undertaking^"]

Restatement (Second) of Torts § 234(A) [the quoted language is now

contained in Section 324A.] See also Schlosser v. Rock Industries, Inc., 804

H

N.E.2d 1140 (Ind. 2004) (holding thai negligence claims against a

contractor are evaluated under traditional negligence rules); Koslidis v.

General Cinema Corp., 754 RE.2d 563 (Ind. App. 2001) (discussing snow

removal contractor's duty to third persons to remove snow in lot with

reasonable care); Genen v. Metro-North Commuter RR., 261 A.D.2d 211,

690 N.Y.S.2d 213 (N.Y. App. Div. 1999); Lawson v. Industrial

Development, 1999 Conn. Super. LEXIS 149, No. CV97-0139538S, 1999WL 49824 (Conn. Super. Jan. 22,1999).

The removal of snow and ice from a parking lot used by many members

of the public requires the exercise of reasonable care. It was foreseeable to

the Johnsons that a person entering the lot could be injured if they

performed their durv negligently. Therefore, they owed a legal duly of

care to the plaintiff, and the demurrer should be overruled.

69 Va. Cir. at 311-12 (emphasis added).

The Restatement language quoted and applied by the court in Boland is a fundamental

principle of Virginia tort law, and has been specifically approved and applied by the Virginia

Supreme Court. In a 2001 decision, for example, defendant healthcare providers argued that they

could not be held liable in tort for failing to communicate the results of genetic testing relating to

a newborn child of the plaintiffs. The Virginia Supreme Court rejected this argument and relied

upon the same fundamental common law principles relied upon by Judge Hogshire in the Boland

opinion. The Virginia Supreme Court held:

As the plaintiffs correctly point out, and the defendants do not dispute, we

have cited with approval the legal principle that "it is ancient learning that

one who assumes to act, even though gratuitously, may thereby become

subject to the duty of acting carefully, if he acts at all." Nolde Bros. v.

Wray, 221 Va. 25, 28, 266 S.E.2d 882, 884 (1980) (quoting Glanzer v.

Shepard, 233 N.Y. 236, 135 N.E. 275, 276 (N.Y. 1922)); accord Ring v.

Poelman, 240 Va. 323, 326, 397 S.E.2d 824, 826 (1990); Cqfleld v.

Nuckles, 239 Va. 186, 192, 387 S.E.2d 493, 496 (1990). We also observe

that this common law principle is embodied in the Restatement (Second) of

Torts § 323:

"One who undertakes, gratuitously or for consideration, to render

services to another which he should recognize as necessary for the

15

protection of the other's person or things, is subject to liability to

the other for physical harm resulting from his failure to exercise

reasonable care to perform his undertaking, if

"(a) his failure to exercise such care increases the risk of such

harm, or

"(b) the harm is suffered because of the other's reliance upon the

undertaking:" ""

Even if the plaintiffs are unable to establish with evidence at trial that the

standard of care required that a reasonably prudent pediatrician

communicate certain information to them, the plaintiffs pled sufficient facts

which, if proven at trial, would permit the finder of fact to conclude that the

defendants assumed the duty to convey to the plaintiffs the correct results of

their daughter's test, which indicated that she carried the sickle cell trait.

The defendants' contention that they could not assume a duty to a non-

patient to comply with the standard of care in Code 5 8.01-581.20 is

without merit. We find no language in Code § 8.01-581.20 which vitiates

the common law rule that one who assumes a duty must discharge that duty

with reasonable care.

Didato v. Strehler, 262 Va. 617, 629, 554 S.E.2d 42, 48 (2001) (emphasis added). Thus, under

Virginia law, even if Otis had gratuitously undertaken to perform services and work in

connection with this elevator it would owe a common law duty of reasonable care and could be

held liable to anyone foreseeably injured by a breach of that duty. Otis is not insulated,

immunized, or otherwise protected from its common law duties and liability for negligence

merely because it had a contract with RIR.

Judge Hogshire's opinion in Boland also makes clear that the fact that the owner of

the premises and invitor (here RIR) itself also owed nondelegable duties of reasonable care

regarding the premises does not mean that an independent contractor that RIR liired to

perform a portion of those duties (here Otis who was hired to perform the duties relating to

16

RlR's elevators) is insulated from tort liability for negligent performance of the duties

undertaken by the independent contractor. As Judge Hogshire held: "However, the

determination that the Johnsons were hired to perform Rivanna's [the property owner's] non-

delegable duty of maintaining a safe premises does not mean that the Johnsons therefore had no

duty to Plaintiff or any_other_member-of.the public who entered the parking lot." 69 Va. Cir. at

311. Judge Hogshire went on to hold that the independent contractors also owed a common law

duty of reasonable care and could be held liable for negligence performance of the services

provided.3

It is, of course, true that the owner and invitor of premises, in this case RIR, is also liable in tortbecause its elevators were in a dangerous condition. The premises-liability duties of care owedby RBI were nondelegable. It is clear under Virginia law that when "a duty to maintain apremises in a safe condition is imposed by contract or by law, it cannot be delegated to anindependent contractor. See Bowers v. Martinsville, 156 Va. 497, 515, 159 S.E. 196 202 (1931)(prime contractor's contractual duty to maintain adjacent property support in excavation workcould not be delegated to subcontractor); Richmond & M.R. Co. v. Moore, 94 Va. 493, 506 27S.E. 70, 71 (1897) (landowner's common-law duty to provide reasonably safe premises'forentertainment of invitees could not be delegated to independent contractor); Restatement(Second) ofProperty, Landlord and Tenant § 19.1 (1977)." Love v. Schmidt 239 Va 357 360-361,389 S.E.2d 707, 709 (1990) (emphasis added).

Moreover, as the Virginia Supreme Court held in Love, where nondelegable dutiesare involved, actual and constructive notice of a dangerous condition to the independentcontractor engaged to perform those duties is deemed as a matter of law to be notice of the

dangerous condition to the owner/operator of the premises. In Love, the premises owner hadhired an independent contractor to provide maintenance services on its property. An inviteeusing a rest room on the property fell and was injured when she sat on a toilet seat which was inan unreasonably dangerous condition. The Virginia Supreme Court held:

[T]his case involves an attempt to delegate the landlord's common-law duty to maintain his premises in a reasonably safe condition. Becausesuch a duty cannot be delegated, we are of opinion that notice to Slater [thecontractor the owner had hired] of the unsafe condition of the toilet seat was

notice to Schmidt [the property owner], based on agency principles and thedoctrine of respondeat superior. Revell, 192 Va. at 433, 65 S.E.2d at 546[Revel! v. Deegan, 192 Va. 428, 433, 65 S.E.2d 543, 546 (1951)]; seeJefferson Standard Life Ins. Co. v. Hedrick, 181 Va. 824, 834, 27 S E.2d

17

The rationale and result of Judge Hogshire's well-reasoned opinion in Bohnd and the

fiindamental principles of Virginia law reviewed above are fully applicable to the present case,

where it certainly cannot be doubted that Otis had undertaken to provide services and it was

reasonably foreseeable to Otis that a person using the elevator could be injured if Otis performed

its duties negltpntly: ™OtiS~negltgenlly breached its ^

steps and actions which put the entrapped elevator back into service even though it knew it had

not determined what had caused the elevator to suddenly stop and become entrapped and thus

had no reasonable basis to assume that the elevator was safe for use.

None of the cases relied upon by Defendant are contrary to Plaintiffs position in this

matter. Holies v. Sunrise Terrace, Inc., 257 Va. 131, 509 S.E.2d 494, 497 (1999), for example,

involved the question of whether a contractor who was under contract with Fairfax County to

operate a elder care facility could be held liable for an attack on one of the residents by a third

person who forced his way into her apartment. This case involved the very specialized and

unique issue of whether (and under what circumstances) one person will be held liable for

harm caused bv the intentional criminal acts of a third party. The pertinent Virginia

authorities hold that a defendant will not be held liable for a criminal attack by a third person

unless a "special relationship" exists between the defendant and the attacker or the person

attacked. The Holies case, and the highly specialized body of law on which it is based, is not

applicable to this case. In this case, Markert is not seeking to hold Otis liable for harm

caused by the intentional criminal acts of any third person. To the contrary, Markert is

198, 202 (1943); Rew v. Bloxom, 181 Va. 136, 140, 23 S.E.2d 771, 773

(1943).

Love v. Schmidt, 239 Va. 357,361, 389 S.E.2d 707,710 (1990).18

seeking to hold Otis liable for the imminently foreseeable harm caused to Markert by

Otis's own negligence.

In Augusta Mutual Insurance Co. v. Mason, 21A Va. 199, 645 S.E.2d 290 (2007), which

is also erroneously relied upon by Otis, an insurance company asserted claims against an agent

who allegedljTbreacrJea his apncy"agree7n^nt7~Becauselfie'only Buties involvedlb~aTtrie~agent

could possibly have owed and breached were duties imposed by the agency agreement and no

common law duties were involved, the Virginia Supreme Court held the trial court properly

dismissed-claims for fraud and breach of fiduciary duty. The Court's opinion was yet another

implementation of the Court's "commitment 'to safeguard against turning every breach of

contract into an actionable claim for fraud.'" 274 Va. at 208, 645 S.E.2d at 295 (quoting

Richmond Metropolitan Authority v. McDevitt Street Bovis, Inc., 256 Va. 553, 507 S.E.2d 344

(1998). This case obviously does not involve any attempt to violate the McDevitt rule against

fuming every breach of contract into a claim for fraud. Moreover, in its Augusta Mutual opinion

the Virginia Supreme Court explicitly reaffirmed the corollary principle that the law of torts does

indeed provide redress "'for the violation of certain common law and statutory duties

involving the safety of persons and property, which are imposed to protect the broad interests of

society.'" 274 Va. at 208, 645 S.E.2d at 295 (quoting Filak v. George, 267 Va. 612, 618, 594

S.E.2d 610, 613 (2004)). Otis owed common law duties of reasonable care and those duties are

imposed under the common law to protect the safety of persons (like Markert) using elevators.

The other cases cited by Otis are also inapposite. In Kamlar Corp. v. Haley, 224 Va. 699,

299 S.E.2d 514 (1983), the Virginia Supreme Court held that punitive damages could not be

awarded for breach of contract. In Oyelar v. Kerr, 217 Va. 88, 225 S.E.2d 398 (1976), the

19

Virginia Supreme Court held that an action by a client against an attorney for failure to properly

perform under a contract for professional services was subject to a three-year statute of

limitations. In Glisson v. Loxley, 235 Va. 62, 366 S.E.2d 68 (1988), the Virginia Supreme Court

held that a doctor who entered into an oral contract with a patient to only perform diagnostic

surgery was HaMe for breach .of conta^

one upon which the parties had agreed. These cases are obviously factually and legally dissimilar

to the situation involved in this case.

Likewise, the Michigan case ofFultz v. Union-Commerce Associates, 470 Mich. 460, 683

N.W.2d 587 (2004), does not control here, not only because it is non-Virginia authority, but

because it is distinguishable and unpersuasive. In Fuliz, the court concluded that the snow

removal service contractor in that case did not owe a duty to the plaintiff (who slipped and fell on

ice) because the contractor had an oral contract with the premises owner to remove snow and ice.

There, the facts demonstrated that the contractor simply had not acted at all under the contract,

and had not attempted to remove the snow and ice from the premises. Thus, the only connection

between the contractor and the premises was that the contractor had failed to perform under its

contract with the premises owner. The court concluded that where there had been such non-

performance of the contract, or mere non-feasance, no independent duty extended to the plaintiff

who fell in the lot, the court stating:

[IJf defendantfails or refuses toperform a promise, the action is in contract.

If defendant negligently performs a contractual duty or breaches a duty

arising by implication from the relation of the parties created by the

contract, the action may be either in contract or in tort. In such cases,

however, no tort liability arisesforfailing tofulfill a promise in the absence

of a duty to act that is separate and distinct from the promise made.

20

Fultz v. Union-Commerce Assocs.. 470 Mich. 460, 469-470, 683 N.W.2d 587, 593 (2004)

(emphasis added).

Clearly, that is not the situation in the present case. In this case, Otis and its employees

were not guilty of mere nonfeasance as would be the case if they had simply failed to undertake

to'pfovrde"sefvices with respect to the elevator. Instead, the Otis employees ca"me to the~RIR

premises. They were on-site at all times that the elevator was in operation. They agreed and in

fact actually undertook to provide all services necessary for the safe and proper operation of the

elevators. In performing these services, they acted negligently, leaving the elevator in a condition

that made it unreasonably dangerous for reasonably foreseeable users of the device, including

invitees such as Markert, who would be visiting the premises the next day. Their liability, and

the liability of RIR, is all the more clear since under Virginia law those persons operating and

maintaining a passenger elevator owe the passengers using the elevator the highest degree of

care. As the Virginia Supreme Court has stated:

The prevailing doctrine with respect to the duty of one maintaining a

passenger elevator in a hotel or other public building is, that he is a common

carrier and governed by the same rules applicable to other common carriers.

That is to say, (although not an insurer of the safety of his passengers) "he

is required to exercise the highest degree of care and diligence in the

maintenance and operation of the elevator to prevent injury to passengers."

This principle is maintained by the great weight of authority, including the

courts of last resort of all the States of the Union (except perhaps three) and

of the Supreme Court of the United States. Id. at 216, 97 S.E. at 797.

Bregel v. Bvsch Entertainment Corp., 248 Va. 175, 178, 444 S.E.2d 718, 720 (1994) (quoting

Murphy's Hotel, Inc. v. Cuddy's Adm'r, 124 Va. 207, 216, 97 S.E. 794, 797 (1919)). Thus,

Plaintiff contends that not only did both RIR and Otis owe her a duty of reasonable care, they

owed her the duty to use the highest degree of care and diligence in the maintenance and

21

operation of the elevator to prevent injury to passengers.4

The instant case should be governed by the reasoning and result of cases such as Boland

and numerous Virginia Supreme Court cases, as well as numerous on-point cases from various

jurisdictions which further support the existence of a common law negligence duty extending to

the Plaintiff in the instant case based Qn Qtis's. negligent-performance., of -its services in

connection with the operation, inspection, repair, and maintenance of the malfunctioning

elevator. The fact that Otis undertook the inspection and repair pursuant to its contract with RIR

simply does not do anything to immunize Otis from its duty and liability, but rather further

establishes its duty and liability under such circumstances. See Milburn v. J.C. Penney

Properties, Inc., No. CL-2006-7868, 2007 Va. Cir. LEXIS 42 (Fairfax County Cir. Ct. 2007)

(management company contractor hired to maintain premises at mall was not entitled to demurrer

in action by patron who fell on defect in parking lot; contractor argued that it owed no direct tort

duty to patron because it was merely an agent of the premises owner under the management

contract, and that it owed no duty to plaintiff to maintain the premises in a safe condition; trial

court ruled that management company did owe negligence duties to the patron, citing, among

other things, Restatement (Second) of Torts § 387, pertaining to the liability of a contractor who

takes over the operation of a premises).

4 See also White v. Sears, Roebuck & Co., 242 F.2d 821, 823 (4th Cir. 1957) (citing and quotingthe Murphy's Hotel case, and noting that it "establishes that in Virginia owners of elevators are

common carriers and held to the highest degree of care known to human prudence. The same law

is elsewhere generally applied to owners of both escalators and elevators. 18 AmJur., Elevators

and Escalators, Sec. 84, p. 567; Petrie v. Kaufmann & Baer Co., 291 Pa. 211,139 A. 878"). See

generally Johns Hopldns v. Correia, 174 Md. App. 359, 921 A.2d 837, 843 (Md. App. 2007)

(citing and summarizing law in some 21 states, including Virginia, holding that owner or

operator of an elevator owes the highest degree of care to passengers, like the duty owed by a

common carrier).

22

In the Milburn case, the Fairfax County Circuit Court reasoned as follows:

This court finds the duty articulated in the Restatement to be entirely

consistent with Virginia tort law. To allow parties, like Taubman, to

receive significant compensation for maintaining premises like malls,

pursuant to contracts with owners of such properties, while avoiding

any potential liability to the members of the general public whom they

are contractually obligated to make reasonable efforts to protect, would

be inconsistent-with-appropriate public policy considerations:—

Moreover, to so hold could create a situation where a member of the

general public, who was extended an invitation and then injured as a

result of negligent maintenance of commercial property, could be left

without a remedy. Hypothetically, an absent landowner could legitimately

contest a negligence claim by pointing out that it had taken reasonable

measures to protect invitees by hiring an experienced property manager as

an independent contractor to maintain the property. At the same time, the

property manager could, if Taubman's position herein were adopted,

successfully assert that it owed no duty in tort to any such invitee and

therefore could not be liable for any injuries incurred. Absent binding

precedent from the Supreme Court of Virginia requiring this court to give

life to such a scenario, this court rejects Taubman's position and adopts Ihe

duty set out in Restatement (Second) ofTorts § 387.

Here, Millburn has alleged that she was a business invitee of J.C. Penney

at Fair Oaks Mall. She has further alleged that Taubman, as property

manager of Fair Oaks Mall was responsible for the repair, maintenance, and

upkeep of the common areas of the mall including the sidewalks and the

parking lots. Milbum further claims that Taubman negligently allowed an

unsafe condition to exist on the transitional strip between the parking lot

and sidewalk adjacent to J.C. Penney where she fell and was injured.

Accepting these allegations as true, as the court must at this stage of the

proceedings, see Cox Cable at 397, 410 S.E.2d at 653 [Cox Cable Hampton

Roads, Inc. v. City ofNorfolk, 242 Va. 394, 397, 410 S.E.2d 652, 653, 8 Va.

Law Rep. 1330 (1991)], the allegations of the Complaint fall squarely

within the duty set out in the Restatement. Accordingly, Taubman's

demurrer is overruled.

Milburn, 2007 Va. LEXIS at *8-9 (emphasis added). See also St. Paul Fire & Marine Insurance

Co. v. Wittman Mechanical Contractors, Inc., 444 F. Supp.2d 670, 677 (E.D. Va. 2006) (U.S.

District Court Judge Walter D. Kelley Jr., stating: "Wittman Mechanical's defense on the issue of

23

duty ignores established Virginia law. Virginia recognizes the 'ancient learning that one who

assumes to act, even though gratuitously, may thereby become subject to the duty of acting

carefully, if he acts al all.1 Didato, 262 Va. 617, 628, 585 S.E.2d at 48 (2001) (quoting Nolde

Bros. v. Wray, 221 Va. 25, 28, 266 S.E.2d 882, 884 (1980)). Because Wittman Mechanical

care in performing thai task").

Furthermore, liability on the part of the elevator company, in this instance Otis, is also

supported by on-point cases from Virginia and other jurisdictions, where causes of action have

been determined to have been properly stated against elevator companies for the very type of

breach of duty to properly inspect and repair under a contract arrangement such as the one at

stake in the present case. See Parker v. Elco Elevator Corp., 250 Va. 278, 462 S.E.2d 98, 99

(1995) (action against elevator repair contractor, represented in the appeal by attorney Michael J.

Gamier, where the plaintiff, Parker, was riding in an elevator when it began to descend at an

excessive rate of speed, actuating a multispeed governor which stopped the elevator abruptly; as

a result of the incident, Parker claimed that his back and knees were injured; Virginia Supreme

Court ruled that plaintiffs elevator expert in the case should have been allowed to testify, even

though the expert said he did not know what caused the elevator's sudden speedy descent).

In Parker, the supreme court ruled that the plaintiffs expert in that case should have been

allowed to testify in the action against the elevator repair contractor, the court stating in part as

follows:

[T]he trial court erred in excluding the testimony of Meese [plaintiffs

expert] based on its finding that he "lacks scientific, technical, or other specialized

knowledge pertinent to the issues of this case." The record reflects that the trial

court reached this decision based on Meese's testimony that he did not know what

24

caused the elevator's excessive speed of descent. The trial court observed that this

lack of knowledge made Meese's testimony speculative and therefore precluded

Meese from appearing as an expert witness. However, lack of this knowledge is

fatal only if Parker's sole theory of negligence was Elco's failure to correct the

condition of the elevator which allowed it to fall at an excessive rate of speed.

Parker's theory of Elco's negligence was not so limited.

Parker also alleged that Elco was aware of two previous incidents in which

the multispeed governor was actrvated_by an overspeed condition. Reiving on Otis

Elevator Company v. Tuerr, 616 A.2d 1254 (D.C. 1992), and O/w Elevator

Company v. Robinson, 287 F.2d 62 (5th Cir. 1961), Parker asserts that, under

these conditions, Elco was negligent in not removing the elevator from service

until the cause ofthe excessive speed was identified and corrected. This theory of

the case was not dependent on knowledge of the specific elevator defect causing

the incident which allegedly resulted in injuries to Parlcer. Therefore, Parker was

entitled to present evidence to support his alternative negligence theory and to

offer Meese as an expert on this standard of care.

Furthermore, because Meese's competence was considered based solely on

excerpts from his discovery deposition, Parker had no opportunity to establish

Meese's qualifications through voir dire. Under these circumstances, we conclude

that the trial court erred in excluding Meese from testifying as Parker's expert on

elevator maintenance and safety.

462 S.E.2d at 99 (footnote omitted; emphasis added).

A substantially similar theory of liability against the elevator company is at issue in the

instant case and based on the result and ruling by the court in the Parker case it is apparent that

the Plaintiffs action against Otis based on, among other things, the theory that Otis was

negligent in putting the malfunctioning elevator back into service, should be allowed to go

forward, and certainly is not subject to a demurrer by the elevator repair and service contractor,

Otis.

Moreover, numerous on-point or close-to-on-point cases from various jurisdictions lend

further support to Plaintiffs position here: that the elevator repair contractor did owe negligence

duties to the injured business invitee in this case, even though the contractor's duties spring from

25

its contractual arrangement with the owner, and that the action is not properly subject to

demurrer. See Burgess v. Otis Elevator Co., 114 A.D.2d 784, 495 N.Y.S.2d 376, 379 (1st Dept.,

1985) (in case where elevator failed to level properly at floor level, action1 had been properly

staled against Otis, which had contracted to inspect, maintain, and repair elevators in owner's

building; and jury determined that defendant Otis"was"ne"glipnt7and th"at"its; negligence was the

proximate cause of the accident; court cited and applied prior case of Smith v. Jay Apartments, 33

A.D.2d 624, 304 M.Y.S.2d 737 (3d Dept, 1969), which held that evidence of one elevator

malfunction prior to the accident was sufficient to sustain the elevator company's liability); and

see also Kleinberg v. New York City Transit Authority, 2007 NY Slip Op 33207(U) (N.Y. Sup.

Ct. 10/9/2007), 2007 NY Slip Op 33207 (N.Y. Sup. Ct., 2007) (in action by injured person

against contractor who had been hired to inspect, service and repair elevators, court stated:

"Regarding the 'duty' element, the Court of Appeals has long held that: An elevator company

which agrees to maintain an elevator in safe operating condition may be liable to a passenger for

failure to correct conditions of which it has knowledge or failure to use reasonable care to

discover and correct a condition which it ought to have found. Rogers v Dorchester Associates,

32 N.Y.2d 553, 559 (1973)"); Wyatt v. Otis Elevator Co., 921 F.2d 1224 (11th Cir. 1991) (arising

out of Alabama) (liability of Otis, as contractor hired to maintain and repair elevators in owner's

office building, upheld on appeal where business invitee was injured when elevator door

suddenly closed on him, the court stating: "A company under contract to maintain an elevator in

good repair may be liable to persons injured by a condition in the elevator that needs repair when

the company has notice or knowledge that should have alerted it to the need for repair. Jones v.

Otis Elevator Co., 861 F.2d 655 (1 lth Cir.1988)"); Otis Elevator Co. v. Faulkner, 288 Ark. 344,

26

705 S.W.2d 428, 430 (1986) (upholding verdict against Otis, the elevator repair contractor, in a

case where an invitee on the premises of the 3M Company was injured when the elevator

suddenly dropped from one floor to the next, then suddenly and violently stopped; even though

Otis had inspected and attempted to repair the elevator several times during the preceding

months^ Otis argued that it could not be held liable because 3M had not approved certain

recommended repairs; court responded, however, that there was ample circumstantial evidence

to prove that 3M routinely approved all of Otis's recommendations and that the repair had not

been made by the time of the accident).

The above authorities, both from Virginia courts and from federal and state courts sitting

in other states, demonstrate quite clearly that in this case, Otis, is not entitled to have this action

dismissed based on its argument that no separate common law duty is owed by the contractor to

the injured business invitee. The Plaintiff in this case is not basing her negligence claims against

Otis on the breach of Otis's contract with RIR, but on the separate, independent common law

duty of reasonable care that arose when Otis affirmatively undertook to inspect, lest, maintain,

repair, and operate the malfunctioning elevator, and did so negligently (and negligently placed it

back in service), knowing or having reason to know that the elevator would foreseeably pose a

hazard to RDl's business invitees because it was not repaired properly. Clearly, the authorities

establish that Otis owed the Plaintiff a tort duty of reasonable care under such circumstances.

Therefore, in the instant case, Otis, the elevator company that was hired to fulfill and

actually undertook to fulfill and to perform the duties of RJR to inspect, test, maintain, repair,

and safely operate the subject elevator so it would not pose an unreasonable hazard to RIR's

business invitees, not only owed a common law duty to use reasonable care toward the Plaintiff

27

in this instance, but, in fact, and as a matter of Virginia law and public policy, owed the Plaintiff

"the highest degree of care known to human prudence." Clearly, under the authorities discussed

and outlined above, Otis is not entitled to have the action against it dismissed under the

allegations actually made in this case, and the Demurrer should be overruled.

3. The Court should reject Olis's arguments regarding negligence per se.

Otis argues that the Amended Complaint's allegations of negligence per se should be

dismissed because "the Amended Complaint fails to plead negligence per se with specificity."

Otis's Memorandum in Support at 7. Otis's argument must fail, however, since (as previously

noted) under Virginia law negligence may be averred generally. "An allegation of negligence or

contributory negligence is sufficient without specifying the particulars of the negligence." Rule

3:18(b), Rules ofthe Supreme Court of Virginia. "Every pleading shall state the facts on which

the party relies in numbered paragraphs, and it shall be sufficient if it clearly informs the opposite

party of the true nature of the claim or defense. Rule 1:4(d), Rules of the Supreme Court of

Virginia. Otis never filed a motion for bill of particulars (as it was free to do under Rule 3:7)

seeking any more detailed statement of the particulars of its wrongdoing or any more detailed

citation to the laws, codes, and standards it violated.

The Amended Complaint's allegations regarding Otis's negligence are entirely sufficient.

Moreover, Otis cannot be heard to complain about an alleged lack of specificity which is not

required under Virginia law, particularly when Otis could have, but failed to, seek a bill of

particulars. Moreover, there is no requirement under Virginia law that negligence per se be

pleaded with specificity or indeed even that it be pleaded at all. Negligence per se is not an

28

entirely separate and unique cause of action but rather is a type of cause of action for negligence.

Negligence per se is simply a kind of negligence in which a legislative enactment or other

provision supplies the standard of what constitutes reasonable care. A failure to comply with

applicable laws and standards fails to comport with the duty of reasonable care. The fiindamenta]

nature of the claim, however; is still a claim for negligence. Plaintiff-tbereibre-does not-agree -

with Otis's premise that "negligence per se" constitutes a claim which must be pleaded separately

and with specificity. The time when the negligence per se issue necessarily arises in a case is at

the time the jury is instructed on the law. Virginia Electric & Power Co. v. Savoy Constr. Co.,

224 Va. 36, 45, 294 S.E.2d 811, 817 (1982) ("Vepco was entitled to an instruction properly

drafted which would have left to the jury the question whether the negligence per se of Savoy

was a proximate cause of the explosion and fire"). Here, the Plaintiff has done much more than

was required in her pleading; Otis's Demurrer should be denied.

4. The Court should deny Otis's Demurrer as to punitive damages.

Otis argues that allegations that an elevator company, by its own negligent actions and

work, knowingly placed a dangerous elevator back in service for use by the public are

insufficient to state a claim for punitive damages. Otis's position is erroneous on its face. Few

things could be more willfully and wantonly dangerous than the negligent actions alleged against

Otis.

It deserves to be remembered that Otis's employees were presumably not novices who

knew nothing about elevators. To the contrary, Otis and its employees are in the business of

providing services with respect to elevators and they had provided services with respect to the

particular elevator in question. These facts (alleged in the Amended Complaint) are important,

29

since they provide powerful factual allegations in support of the punitive damages claim. See

Alfonso v. Robinson, 257 Va. 540, 514 S.E.2d 615 (1999). Although Alfonso did not involve a

punitive damages claim, it involved the issue of whether there was sufficient evidence of willful

and wanton negligence to submit to the jury (apparently for purposes of overriding a contributory

negligence -defense). Thelegal-standard-involved (willful- and~wanton uegligence^-however, is

the same legal standard involved in this case.

In Alfonso, a truck driver had left his disabled truck on a traveled roadway and after some

time passed a collision occurred as a result of the presence of the disabled vehicle in the roadway.

The plaintiff argued that under all the evidence the jury could find that the truck driver knew of

the danger to the public but despite such knowledge failed to take appropriate action to address

that hazard. That is the same argument involved in this case. The Virginia Supreme Court held

that the trial court properly submitted the issue of willful and wanton negligence to the jury.

The plaintiff, Robinson, argued "that the evidence concerning Alfonso's [the defendant

truck driver's] conduct presented a factual question of willful and wanton negligence that was

properly submitted to the jury. Robinson contends that the evidence supported a conclusion that

Alfonso acted with conscious disregard for the rights of other drivers on the highway, or with

reckless indifference to the knowledge that his conduct probably would cause injury to another

driver." 257 Va. at 544-545, 514 S.E.2d at 618 (emphasis added). The Virginia Supreme Court

held: "We agree with Robinson's argument." Id.

The Virginia Supreme Court explained: "Willful and wanton negligence is action taken

in conscious disregard of another's rights, or with reckless indifference to consequences that the

defendant is aware, from his knowledge of existing circumstances and conditions, would

30

probably result from his conduct and cause injury to another." Id. The Court further held:

"Each case raising an issue of willful and wanton negligence must be evaluated on its own

facts, and a defendant's entire conduct must be considered in determining whether his

actions or omissions present such a question for a jury's determination." Id. (emphasis

added):" ' ~ ~" ~

In holding that the evidence of willful and wanton negligence was sufficient to be

submitted to the jury, the Virginia Supreme Court emphasized the crucial importance of evidence

showing that the defendant had actual advance Icnowledge of the hazard involved and presented

by his conduct. The Court held that "[s]uch evidence that a defendant had prior knowledge or

notice that his actions or omissions would likely cause injury to others is a significant factor in

considering issues of willful and wanton negligence. ... In the present case, Alfonso's prior

Icnowledge was a conceded fact that related directly to the specific circumstances with which he

was confronted on the night of the accident." 257 Va. at 546,514 S.E.2d at 619.

Otis certainly is entitled to try to persuade the jury that its employees lacked sufficient

expertise with elevators to have prior knowledge or notice that placing a malfunctioning elevator

back into service was dangerous. Plaintiff is confident that the jurors will readily reject that

argument and conclude that Otis is guilty of willful and wanton wrongdoing that fully supports

an award of punitive damages. Either way, however, the Plaintiff is entitled to her day in Court.

Otis is not entitled to have the Plaintiffs demand for punitive damages stricken or dismissed.

"Proof of actual malice is not required to support a recovery of punitive damages in tort

cases." Avocet Dev. Corp. v. McLean Bank, 234 Va. 658, 666, 364 S.E.2d 757, 762 (1988)

(holding that the trial judge properly submitted the issue of punitive damages to the jury). Even

31

where actual malice is not shown, punitive damages may be based on "such recklessness or

negligence as to evince a conscious disregard of the rights of others." Hamilton Dev. Co. v.

Broad Rock Club, Inc., 248 Va. 40,45,445 S.E.2d 140,143 (1994). Willful and wanton conduct

will support an award of punitive damages. Wallen v. Allen, 231 Va. 289, 343 S.E.2d 73 (1986).

^t-Virginia-ModeMuty-Instritctions-mske-GYeM-fa awarded--

on the basis of a finding of either a) actual malice or b) willful and wanton conduct. The

standard Virginia instruction provides: "If you find that the plaintiff is entitled to be

compensated for his damages, and if you further believe by the greater weight of the evidence

that the defendant acted with actual malice toward the plaintiff or acted under circumstances

amounting to a willful and wanton disregard of the plaintiffs rights, then you may also

award punitive damages to the plaintiff to punish the defendant for his actions and to serve as an

example to prevent others from acting in a similar way." Virginia ModelJury Instructions-Civil,

Instruction No. 9.080 (emphasis added). "The purpose of punitive damages 'is not so much to

compensate the plaintiff but to punish the wrongdoer and to warn others,' and such damages

lmay be recovered only where there is misconduct or actual malice, or such recklessness or

negligence as to evince a conscious disregard of the rights of others."1 Banks v. Mario Indus, of

Va., 274 Va. 438, 460, 650 S.E.2d 687 (2007) (quoting Hamilton Dev. Co. v. Broad Rock Club,

248 Va. 40,45,445 S.E.2d 140,143 (1994) (quotation omitted)).

"[Willful and wanton conduct is defined as] acting consciously in disregard of another

person's rights or acting with reckless indifference to the consequences, with the defendant

aware, from his knowledge of existing circumstances and conditions, that his conduct probably

would cause injury to another." Griffin v. Shively, 227 Va. 317, 321, 315 S.E.2d 210, 213

32

(1984), quoted in Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 144, 413 S.E.2d 630,

640 (1992). See also Infant C. v. Boy Scouts of America, Inc., 239 Va. 572, 391 S.E.2d 322

(1990); Baker v. Marcus, 201 Va. 905,114 S.E.2d 617 (1960).

Otis's attempt by the Defendant to have the Court prejudge and exclude Plaintiffs

exemplary damages claim from the jury!s consideration isj in effeetrah-attempted violation-of-the—

fundamental right to jury trial. In O'Brien v. Snow, 215 Va. 403, 210 S.E.2d 165 (1974), the

defendant moved the trial court to hold before trial that the plaintiff was not entitled to punitive

damages. The plaintiff demanded a jury trial of the punitive damages claim, hut the trial court

entered judgment dismissing the punitive damages claim. The trial court entered an order that

"the issue of punitive damages as claimed by the plaintiffs shall not be submitted to the jury."

215 Va. at404,210S.E.2dat 167.

On appeal in O'Brien, the Virginia Supreme Court held that the trial court had committed

reversible error. "The crux of the defendant's position on appeal is [was] that the facts disclosed

in the plaintiffs' discovery depositions, their answers to interrogatories and their bill of particulars

fail to support a recovery for punitive damages." Id. The trial court had agreed with this

argument and ruled in favor of the defendant before trial on the punitive damages claim. The

Virginia Supreme Court reversed, and held that "it is elementary that the plaintiffs were entitled

to a trial by jury of their punitive damage claim. Va. Const, art. 1, § 11[.]" 215 Va. at 405, 210

S.E.2datl67.

Ultimately, Otis is seeking to have the Court strike the punitive damages allegations not

on the basis of the actual allegations of the Amended Complaint but on the basis of Otis's

mischaracterizations of the Amended Complaint. Otis repeatedly insists that the Amended

33

Complaint merely alleges that Otis was guilty of negligent omissions and merely allowed the

elevator to be used in a dangerous condition. To the contrary, as previously noted, the Amended

Complaint repeatedly and expressly alleges that Otis's employees are liable for their "actions and

omissions" by which they were guilty of "willfully negligently, wantonly, carelessly, recklessly

and/or negligently and wrongfully allowing,-permitting, and causingthe-Subject Elevator- to be

kept, operated and used on the Raceway Premises" even though they knew it was in a

dangerous condition. See- Amended Complaint ffl| 29(a-)) (emphasis added). Otis's assertions

regarding the nature of the allegations of the Amended Complaint are thus plainly incorrect.

Likewise, Otis attempts to create the misimpression at page 10 of its brief that Plaintiffs only

allegation is that Otis knew the elevator had malfunctioned the day before but then "failed to

warn Plaintiffof its condition or to repair the elevator." Otis's Memorandum in Support at 10.

Once again, however, the actual allegations of the Amended Complaint disprove Otis's

assertions. Count Four seeking punitive damages realleges and incorporates all of the allegations

of Paragraphs 1 through 13 and 24 through 29 of the Amended Complaint. Otis has simply

overlooked and failed to discuss those extensive allegations at all in connection with its challenge

to the punitive damages claim. Moreover, even the additional allegations set forth in Count Four

have been ignored and mischaracterized by Otis. Paragraphs 32 and 33 of the Amended

Complaint allege, for example:

31. Otis and its officers, directors, agents and/or employees acting in

the course and scope of their employment and agency specifically knew that

the Subject Elevator had malfunctioned on the day before, and/or at one

or more other times in close proximity to and prior to, the events alleged

herein which caused injury to Markert.

32. Despite such actual knowledge, Otis and its officers, directors,

agents and/or employees acting in the course and scope of their employment

34

and agency failed to wam Markert and other business invitees of the danger

posed by the Subject Elevator and its unreasonably dangerous condition and

instead failed to sufficiently maintain and repair the Subject Elevator and

continued to make the Subject Elevator available for the use of business

invitees, including Markert, and allowed and caused them to use the

Subject Elevator, even though ft was unreasonably dangerous, had not

been sufficiently repaired and had not been placed in a fit and safe

condition.

Amended Complaint, Paragraphs 32-33 (emphasis added). The actual allegations of the

Amended Complaint and the applicable Virginia law establish lhat Otis's Demurrer should be

denied in all respects.

CONCLUSION

Based on the foregoing points and authorities, the Plaintiff, Elizabeth A. Markert, by

counsel, respectfully requests that Otis Elevator Company's Demurrer to the Plaintiffs Amended

Complaint be overruled and denied in all respects.

John C. Shea

Roger T. Creager

Marks & Harrison, P. C.

1500 Forest Avenue, Suite 100

Post Office Box 72020

Richmond, Virginia 23255-2020

(804) 282-0999 telephone

(804) 288-1853 facsimile

Counsel for Plaintiff

Respectfully submitted,

ELIZABETH A. MARKERT

By:

35

Certificate

1 hereby certify that on this 1st day ofFebruary, 2008, the foregoing document was faxed, e-

mailed, and mailed first-class postage prepaid to:

Barrett E. Pope, Esquire

DuretteBradshaw PLC

600-E:-Main-Street-20^Floor— --: ■

Richmond, Virginia 23219

Michael J. Gamier, Esquire

Gamier & Gamier, P.C.

109 Rowell Court

Falls Church, Virginia 22046

36

EXHIBIT A

Page!

Peggy M. Boland v. Rivanna Porlncrs c( al.

Case No. (Law) 05-32

CIRCUIT COURT OF THE CITY OF CHARLOTTESVJLLE, VIRGINIA

69 Va. Cir. 308; 2005 Va. Cir. LEXIS 320

November 21,2005, Decided

HEADNOTES

To constitute actionable negligence, there must be a

legal duty, a breach thereof, and a consequent injury.

An owner or occupier of land cannot delegate its

common law duty to maintain its premises in a reasona

bly safe condition.

The independent contractor who acts lo provide a

service lo an occupier of land which clearly impacts the

safety of other persons retains an independent duly of

care lo any person who could be affected by a careless

performance of that service.

JUDGES:

SHIRE.

[♦*!] BY JUDGE EDWARD L. HOG-

OPINION BY: EDWARD L. HOGSHJRE

OPINION

[♦308] BY JUDGE EDWARD L. HOGSHJRE

Defendants Michael Johnson and Johnson's Backhoe

Service, Inc. (collectively, "the Johnsons") have de

murred to Plaintiff Peggy M. Boland's Amended Motion

for Judgment ("AMJ"), arguing that they cannot be held

liable for her injuries as a matter of law. Plaintiff and

Defendant Rivanna Partners, L.L.C. ("Rivanna") oppose

the demurrer. The parties have filed memoranda in sup

port of their respective positions and the matter has been

argued by counsel. For the reasons slated below, this

Court overrules the demurrer.

Statement ofFacts

As this is a demurrer, the Court accepts the facts as

stated in the Plaintiffs Motion for Judgment and draws

all reasonable inferences therefrom. Adkins v. Dixon, 253

Va. 275, 276,482 S.E.2d 797 (1997).

Defendant Rivanna is a limited liability corporation

and is the owner and operator of the Republic Plaza lo

cated on Main Street in the City of Charlottesville, Vir

ginia. (AMJ, & 1.) Defendant Michael Johnson is the

owner [*309] and operator of Defendant Johnson's

Backhoe Service, Inc. (AMJ, & 3.) Rivanna retained the

Johnsons to plow snow and ice from the parking area

[♦♦2] at Republic Plaza and to sand and/or salt the park

ing area. (AMJ, & 4.) On or about January 10, 2004,

Plaintiff parked in the parking area designated for cus

tomers at the Republic Plaza. (AMJ, &. 9.) On exiling her

vehicle, she slipped on black ice that had not been

cleared from the parking area. (AMJ, & 9.) As a result of

this fall, Plaintiff alleges that she fell lo the ground and

sustained serious injury to her hip and leg. Plaintiff al

leges she incurred medical and hospital bills and suffers

physical and mental pain. (AMJ, & 9.)

Standard ofReview

A demurrer tests the legal sufficiency of facts pre

sented in the Plaintiffs pleading. A trial court must con

sider the pleading in the light most favorable to the

Plaintiff and should sustain the demurrer only if die

pleading fails to state a valid cause of action. Sanchez v.

Medicorp Health System. 270 Va. 299, 618 S.E.2d 331

(2005) (citing W. S. Carnes, Inc. v. Board ofSupervisors,

252 Va. 377,384, 478 S.E.2d 295 (1996)).

Questions Presented

Docs an independent contractor hired for the season

to remove snow from a parking lol have an independent

duty of care to a non-contracting person who is banned

by the contractor's [**3] failure lo clear the snow care

fully?

Analysis

The Johnsons contend that Plaintiff, Peggy Boland,

can maintain no cause of action against them for liability

for her fall on January 10, 2004, in the parking lol owned

by Rivanna. The Johnsons assert that they escape liabil

ity because, as independent contractors hired by Rivanna

to clear snow, they were merely hired to perform the

owners' non-delegable duty lo maintain the property in a

reasonably safe condition. (Johnsons' Mem. Supp. Dem.

69 Va. Cir. 308, *; 2005 Va. Cir. LEXIS 320,

Page 2

al 2.) Because they are nol Ibe owners of the property,

the Johnsons argue that they had no duty to Plaintiff, or

to other members of the public, to clear the parking lot in

a careful or reasonable manner.

To constitute actionable negligence, there must be a

legal duty, a breach thereof, and a consequent injury.

Artrip v. E. E. Berry Equipment Co., 240 Va. 351, 397

S.E.2d 821, 7 Va. Law Rep. 764 (1990) (quoting Barttett

v. Recapping. Inc.. 207 Va. 789, 793, 153 S.E.2d 193

(1967)). The Johnsons argue that FlaintiTThas failed to *

slate a claim of negligence because she has failed to al

lege facts that show that the Johnsons had a legal duty to

the [*310] Plaintiff. It is unquestioned in this case thai

the Johnsons were independent [**4] contractors hired

by Rivanna to clear snow from the parking lot of the

premises. "An independent contractor is one who under

takes to produce a given result without being in any way

controlled as to the method by which he attains that re

sult." Southern Floors and Acoustics, Inc. v. Max-

Yeboah. 267 Va. 682, 687, 594 S.E.2d 908 (2004) (quot

ing Craig v. Doyle. 179 Va. 526, 531, 19 S.E.2d 675

(1942)).

It is settled law (hat a landlord cannot delegate ils

common law duty to maintain ils premises in a reasona

bly safe condition. Love v. Smith. 239 Va. 357, 361, 389

S.E.2d 707, 6 Va. Law Rep. 1566 (1990). See also

Southern Floors, 267 Va. at 688. The Johnsons argue

that, in Kesler v. Allen. 233 Va. 130, 353 S.E.2d 777, 3

Va. Law Rep. 1988 (1987), and in Southern Floors, the

Virginia Supreme Court created a distinction between

maintenance of property and "repairs or improvements"

to property. They assert tbal a landlord cannot delegate

the duty to maintain the. property in a reasonably safe

condition and that the independent contractor only as

sumes the legal duly of care when hired for a repair or

improvement. They further assert that they were hired to

perform routine maintenance, not a discrete and isolated

[♦♦5] repair. Therefore, the Johnsons argue that

Rivanna, and only Rivanna, held a duty of care to the

Plaintiff as a matter of law. Rivanna agrees thai snow

removal was part of its nondelegable duty to maintain the

property in a reasonably safe condition and that the John

sons were hired to perform that duty. Rivanna and the

Plaintiff assert, however, that, in acting to remove the

snow from the parking lot, (he Johnsons held an inde

pendent duty ofcare to the Plaintiff.

The distinction between maintenance and "repair or

improvement" is not well defined. In Love, the owner of

the property had contracted out the general maintenance

of the premises and the court found that, despite such a

contract, the legal duty to maintain the premises safely

was retained by the owner. 239 Va. at 361. Therefore,

when the plaintiff slipped off a broken toilet seal, some

thing which should have been repaired in the course of

ordinary maintenance, the owner was liable. Id. The Love

court distinguished Kesler because, in that case, the neg

ligent act arose out of Ihe "independent contractor's neg

ligent installation of a storm door." Id. The court in

Kesler dismissed, will) minimal [**6] discussion, the

plaintiffs argument that the installation of the door fe\l

within the landlord's duly to maintain the property safely.

Similarly, in Southern Floors, the court distinguished

Love as involving "regular and routine maintenance, re-

-pair-arid-jahilorial services." 267-Va.-at-688.-ln-thai-case,—

the sub-contraclor was installing new floor tiles over

which the plaintiff tripped and fell. Id.

In the case at bar, removal of snow and ice during

the winter was part of Rivanna's nondelegable duly to

maintain the property safely. In contracting with the

Johnsons for the removal of snow during the winter,

Rivanna hired them to [*311] perform ils non-delegable

duty. They did not attempt to delegate their legal duty of

proper maintenance lo the Johnsons. See Gazo v. Stam

ford. 255 Conn. 245, 765 A.2d 505, 511 (2001) (staling

that a "party may contract out the performance of a non

delegable duty, but may nol contract out bis ultimate

legal responsibility").

However, the determination that the Johnsons were

hired to perform Rivanna's non-delegable duty of main

taining a safe premises does not mean that the Johnsons

therefore had no duty lo Plaintiff or any [**7] other

member of the public who entered tile parking lot. The

cases discussed above addressed whether the property

owner was liable for acts that could be attributed to an

independent contractor, not the distinct question of

whether (he independent contractor owed a duty of care

to the injured party. ' In Aririp v. E. E. Berry Equipment

Co.. the plaintiff was injured by slipping and falling on a

pile of snow and sued Ihe snow removal company. The

court did not need to decide the issue of whether the de

fendant owed Artrip a duty of care because the parlies

had agreed that it did. The court explicitly stated, "In the

present case, the parties agree that Berry owed Artrip a

duty to use reasonable care in removing the snow from

the parking lot, and we agree." Artrip, 240 Va. at 257.

Although this statement is dictum, it is indicative of the

court's agreement with the fundamental principle stated.

1 In Love, where the court found the landlord li

able to the third party, the court did not address

the issue of whether the contractor was also li

able.

[♦♦8] In fact, the Johnsons retained an independent

duty to use reasonable care because the act of clearing

the parking lot was not just for the benefit of Rivanna,

but also for the benefit of Plaintiff and others like her. It

was clearly foreseeable that people other than Rivanna

would be affected by the Johnsons' actions. As Justice

Page 3

69 Va. Cir. 308, *; 2005 Va. Cir. LEXIS 320, ♦*

Cardozo staled, "It is ancient learning thai one who as

sumes to act, even though gratuitously, may thereby be

come subject to the duty of acting carefully, if he acts al

all." Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275,

276 (N.Y. 1922). See also NoldeBros., Inc. v. Wray. 221

Va. 25, 28, 266 S.E.2d 882 (1980) (quoting Glmner).

This duty is separate from any contractual duties due to

the owner of the property. The independent contractor

who acts to provide a service which clearly impacts the

safety_of_o.lber_persons.retains..an. independent duty of

care to any person who could be affected by a careless

performance of thai service. The Restatement (Second)

of Torts states, "In general, when a person undertakes to

render services to another, which he should recognize as

necessary for the protection of a third person, he is sub

ject lo liability to the (**9] third person for physical

harm resulting from his failure to exercise reasonable

care to protect bis undertaking. Restatement (Second) of

Torts § 234(A). See also Schhsser v. Rock Industries,

Inc., 804 N.E.2d 1140 (Ind. 2004) (holding that negli

gence claims [*312] against a contractor are evaluated

under traditional negligence rules); Kostidis v. General

Cinema Corp.. 754 N.E.2d 563 (Ind. App. 2001) (dis

cussing snow removal contractor's duty to third persons

lo remove snow in lot with reasonable care); Genen v.

Metro-North Commuter RR., 261 A.D.2d 211, 690

N.Y.S.2d 213 (N.Y. App. Div. 1999); Lawson v. Indus

trial Development. 1999 Conn. Super. LEXIS 149, No.

CV97-0139538S, 1999 WL 49824 (Conn. Super. Jan. 22,

1999).

The removal of snow and ice from a parking lot used

by many members of the public requires the exercise of

reasonable care. It was foreseeable lo the Johnsons that a

person entering the lot could be injured if they performed

their duty negligently. Therefore, they owed a legal duty

of care to the plaintiff, and the demurrer should be over

ruled.