Marrs, Michael D.

English

Chicago-Kent College of Law

Chicago-Kent Law Review Volume 45 Issue 1 Article 11 April 1968 Carriers - Personal Injuries - Escalators and Elevators - Escaltors are Not Common Carriers in Illinois Michael D. Marrs Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview  Part of the Law Commons Recommended Citation Michael D. Marrs, Carriers - Personal Injuries - Escalators and Elevators - Escaltors are Not Common Carriers in Illinois, 45 Chi.-Kent L. Rev. 111 (1968). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol45/iss1/11 This Notes is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact jwenger@kentlaw.iit.edu, ebarney@kentlaw.iit.edu. DISCUSSION OF RECENT DECISIONSCARRIERS-PERSONAL INJURIES-ESCALATORS AND ELEVATORS-ESCALA-TORS ARE NOT COMMON CARRIERS IN ILLINOIS.-In the recent case of Tol-man v. Wieboldt Stores Inc., 38 Ill. 2d 510, 233 N.E.2d 33 (1968), the IllinoisSupreme Court was called upon to decide whether or not the operator of anescalator was a common carrier.' The Supreme Court, by Justice Solfisburg,held that the operator of an escalator was not a common carrier and a pas-senger upon an escalator was no different from an ordinary business invitee.On November 29, 1960, Mrs. Ida Tolman went shopping in Wieboldt'sDepartment Store. As she was traveling from the basement to the first floorby means of an escalator, the heel of her shoe became wedged between theslats on the step. The spaces between the wooden slats were from threequarters of an inch to one inch wide and about an inch deep. Upon nearingthe top of the escalator, Mrs. Tolman, realizing her shoe was stuck, gave herfoot a violent jerk to loosen it. Unfortunately, she lost her balance and fellbackward, sustaining severe injuries.Mrs. Tolman brought suit in the Circuit Court of Cook County andrecovered a $10,000 judgment, after a jury verdict in her favor. The defen-dant made several post trial motions, among which was a motion for a newtrial on the basis of the admission of certain interrogations. The court de-nied all motions. The defendant then appealed to the Appellate Court forthe First District, contending there was no evidence that the escalator wasunsafe or that the defendant knew or should have known that it was unsafe.The Appellate Court reversed, holding that there was no notice to the storeowner of a dangerous condition and thus the verdict should have beendirected for the defendant.2Mrs. Tolman appealed to the Supreme Court contending that thedefendant was a common carrier and therefore must bear the burden ofshowing non-negligence once an injury has occurred. The Supreme Courtreversed in part the Appellate Court, and remanded the case with instruc-tions to grant the defendant's motion for a new trial. The Supreme Courtalthough not agreeing that the plaintiff was on a common carrier held thatshe was owed a duty as a business invitee and further held that there wassufficient evidence to send the case to the jury and that the Appellate Courterred in entering judgment for the defendant. The court ordered a newtrial, however, because the trial court allowed improper evidence in theform of interrogatories concerning other accidents which occurred on theescalator before Wieboldt's became owners of the building.I In Heffernan v. Mandel Bros. Inc., 297 Il1. App. 272 17 N.E.2d 523 (lst Dist. 1938),and Mader v. Mandel Bros. Inc., 314 Il. App. 263, 41 N.E.2d 327 (lst Dist. 1942), theAppellate Court of the First District had held escalators to be common carriers.2 Tolman v. Wieboldt Stores Inc., 73 Ill. App. 2d 320, 219 N.E.2d 560 (lst Dist. 1966).CHICAGO-KENT LAW REVIEWA common carrier is one who as a regular business transports personsor property from place to place and holds himself out as engaged in suchbusiness.3 Presumably because the common carrier has undertaken thegreat responsibility of transporting persons as a business, the courts requirehim to exercise the utmost caution, although he does not become the insurerof his passenger's safety.4 As a practical matter the courts charge a commoncarrier with the highest degree of care because he alone is in control of theinstrumentality and the passengers are completely dependent on him.5 Theprocedural effect of being a common carrier is to shift the burden of proofto the common carrier once an injury occurs. The common carrier mustbear the burden of proving non-negligence or else become liable for theinjury.Traditionally, common carriers have been thought to be operators ofbuses, trains, planes and the like. However, in Illinois an elevator has beenheld to be a common carrier for the reason that a passenger is in a con-veyance over which he has no control, and the operator has undertaken thegreat responsibility to transport customers from floor to floor. The operatorsof such elevators, upon grounds of public policy, are required to exercisethe highest degree of care and diligence. 6The main Illinois decision illustrative of the principle that escalatorsare like elevators and thus common carriers is Heffernan v. Mandel Bros.Inc.,7 wherein the court reasoned that in both an escalator and elevator apassenger is powerless to control the mechanism and unable to exercise anycare for his own protection. The rule that the operator of an elevator is acommon carrier has been held to apply to an escalator for three mainreasons: the similarity of an elevator and escalator in function;8 the factthat in both conveyances the passenger is powerless to control his own fate;9and, on a purely public policy basis, looking to the fact that all personsregardless of age, experience, or infirmity were invited to use an escalator. 10Therefore, for safety reasons, the owners and operators were held to becommon carriers.Other courts-Colorado," Michigan, 12 and Massachusetts' 3-have dis-3 13 C.J.S. Carriers § 530 (1939).4 Prosser, Torts § 34 (3d ed. 1964).5 The obligations, restrictions, and liabilities with which a common carrier of pas-sengers is charged are based primarily upon considerations of public policy and arise byimplication of law. 14 Am. Jur. 2d Carriers § 736 (1964).6 Springer v. Ford, 189 Ill. 430, 59 N.E. 953 (1901).7 297 I1. App. 272, 17 N.E.2d 523 (1st Dist. 1938).8 McBride v. May Department Stores Co., 124 Ohio St. 264, 178 N.E. 12 (1938), aff'g,38 Ohio App. 420, 177 N.E. 733 (1937).9 Heffernan v. Mandel Bros. Inc., 297 Ill. App. 272, 17 N.E.2d 523 (1st Dist. 1938);Petrie v. Kaufman & Baer Co., 29 Pa. 211, 139 Ad. 878 (1927).10 Vandagriff v. J.C. Penney Co., 228 Cal. App. 2d 579, 39 Cal. Rpt. 671 (1964).11 Nettrour v. J.C. Penney, 146 Colo. 150, 360 P.2d 964 (1961).12 Fuller v. Wurzburg Dry Good Co., 192 Mich. 477, 158 N.W. 94 (1926).13 Conway v. Boston Elevated Ry. Co., 255 Mass. 571, 152 N.E. 94 (1926).DISCUSSION OF RECENT DECISIONSagreed that an escalator is like an elevator. These courts feel that the desig-nation of escalators as common carriers is not warranted in light of the con-trol which an escalator passenger can exert over himself while beingtransported. The standard of care charged to escalator owners in these casesis reasonable and ordinary care commensurate with the particular circum-stances or that required toward any ordinary business invitee.Obviously, escalators and elevators do not fit the generally given defin-ition of a common carrier. They do not, as a regular business, undertake forhire to carry all persons, who may apply for passage, or hold themselves outas engaged in such business. 14 Also, a contract express or implied is necessaryto the creation of the relationship of a carrier and passenger.15 The escalatorlike an elevator is merely furnished to enable persons to shop more easily.They may aid in profit, but are hardly common carriers in any sense of thedefinition. Those courts that hold them to be common carriers are not con-cerned with how well they fit the definition. They are mainly concernedwith a conveyance which transports human beings in large quantities andthe voluntary assumption of great responsibilites. Only then, for publicpolicy reasons, have escalators and elevators been charged with the commoncarrier standard of care notwithstanding their lack of conformity with thecommon carrier definition.The court in the Tolman case was directly opposed to the rule that anescalator is like an elevator, thus agreeing with the cases from other juris-dictions. The court examined the traditional common carriers and therelationship of passengers to the conveyance. They reasoned that a passengeron an escalator is not powerless to control himself while being transported,as he would be while a passenger on a train, bus, elevator, or airplane. Itwas felt since escalators differed in this essential factor from common car-riers they should not be charged with the common carrier standard of care.Thus, in substitution for the common carrier standard the court adoptedthe rule that a passenger on an escalator is no different than any othercustomer in a store and entitled to only that care which any other businessinvitee would be entitled.'8The Tolman case implies that the results would be the same undereither the business invitee or the common carrier standard since the businessinvitee standard requires that the owner must exercise reasonable careunder the circumstances. Herein the owner is in charge of a potentiallydangerous piece of equipment. Thus reasonable care would have to be ahigh degree of care to protect customers from being injured. This implica-tion may lead one to believe that the chances of holding the owner liablehave not lessened due to the application of the business invitee standard,14 13 C.J.S. Carriers § 530 (1939).15 14 Am. Jur. 2d Carriers § 736 (1964).16 At this point the court cited Geraghty v. Burr Oak Lanes, 5 Ill. 2d 153, 125 N.E2d47 (1955), which sets out the standard of care for business invitees as being reasonablecare under all the circumstances.CHICAGO-KENT LAW REVIEWsince in both situations the owner is required to exercise a high degree ofcare toward his customers. However, this conclusion is not valid. The sameresult may be reached in a case such as Tolman. The court felt that theevidence was sufficient to show that Wieboldt's, in allowing the old out-moded escalator with its wide-spaced wooden slats to be used by its cus-tomers, was negligent. But what will be the result when a passenger on anescalator is injured by some unexplainable, undiscoverable malfunction?The main difference between the business invitee standard and thecommon carrier standard lies in the burden of proof. Under the commoncarrier theory, the mere occurrence of an injury to one being transported byan escalator was sufficient to raise a prima facie case of negligence. 17 Theestablishing of the prima facie case causes the burden of proof to shift tothe common carrier, and requires him to prove non-negligence. If the injuryis caused by some unexplainable malfunction which the carrier himselfcannot explain then he has not carried the burden and remains liable tothe passenger. Under the business invitee standard the results are the op-posite. The burden of proof always remains with the passenger and noprima facie case is raised with the mere occurrence of the accident. If thepassenger cannot prove negligence he cannot recover. If the injury wascaused by some unexplainable malfunction, it is unlikely that the defen-dant will be liable unless the plaintiff is successful under the doctrine of resipsa loquitur. Res ipsa loquitur, however, does not cause the burden ofproof to shift. It merely provides an inference of negligence from the factthat an injury occurred due to an instrumentality under the exclusive con-trol of the defendant.' 8If escalators are not considered common carriers and where activenegligence cannot be shown the results will be typically in favor of the de-fendant. Conway v. Boston Elevated Ry. Co. 19 and Fuller v. Wurzburg DryGood Co. 20 are two cases illustrating this result. Both cases are from juris-dictions in which the business invitee standard is used in regard to es-calators.In the Conway case, there was an unexplainable movement in the es-calator hand rail which caused the plaintiff's hand to be caught. The courtstated;While it is the duty of the defendant to exercise reasonable careunder the circumstances to maintain and operate their escalators,an action based on negligence cannot be maintained unless it isproved affirmatively that the escalator is in defective condition dueto the act or omission of the defendant.2117 Christie v. Griggs, 2 Camp. 79, 170 Eng. Rpt. 1088 (1809); Galena and ChicagoUnion Ry. Co. v. Yarwood, 15 Ill. 468 (1854).i8 Prosser, Torts § 40 (3d ed. 1964).19 255 Mass. 571, 152 N.E. 94 (1926).20 192 Mich. 477, 158 N.W. 1026 (1916).21 Supra note 19, at 571, 152 N.E. 94.DISCUSSION OF RECENT DECISIONSA similar conclusion was reached in the Fuller case where the plaintiffclaimed she was thrown by a peculiar motion of the escalator. The courtruled that the mere showing of an injury was not enough to infer negligence.There must be an affirmative showing of negligence or circumstances fromwhich it may be inferred. It is highly likely, if the language in Tolman is tobe applied, the results of future cases will be much like those reached in theConway and Fuller cases where no affirmative showing of negligence can bemade.MICHAEL D. MARRSCONSTITUTIONAL LAW-PRIVILEGES OR IMMUNITIES AND CLASS LEGISLA-TION-WHETHER SECTION 29 OF THE LIMITATIONS ACT IS CONSTITUTIONAL.-Inthe recent case of Skinner v. Anderson, 38 Ill. 2d 455, 231 N.E.2d 588 (1967),the Supreme Court of Illinois was confronted with the problem of whethera 1963 act' of the legislature, which required that a suit arising out of adefective condition of an improvement to real estate be brought against thearchitect within four years after his performance, was constitutionally valid.The trial court found for the architect and the Illinois Supreme Court re-versed and remanded, holding that the act was unconstitutional 2 as violativeof Section 22 of Article IV3 of the Illinois Constitution. The court stated1 I1. Rev. Stat. ch. 83, § 24F (1967), provides in its pertinent parts that an action torecover damages for an injury to property, real or personal, or for the injury to a person,or for bodily injury or wrongful death arising out of a defective and unsafe conditionof an improvement to real estate,... [s]hall be brought against any person performing or finishing the design,planning, supervision of construction or construction of such improvement toreal property, unless such cause of action shall have accrued within four yearsafter the performance or furnishing of such services and construction ....Three other states have enacted statutes of a similar nature. The statutes are MichiganStat. Ann. 27A.5839 (1967), Nevada Rev. Stat. 11.205 (1957), and Baldwin's Ohio Rev. CodeAnn., Title 2305.131 (1964). So far, the constitutionality of these statutes has not beencontested.2 The plaintiff appealed the trial court's decision on various grounds and the courtsaid that Section 29 of the Limitations Act probably violated Section 13 of Article IV ofthe Illinois Constitution. Section 13 of Article IV states that every act shall have only onesubject and that one subject has to be expressed in the title. If an act should contain anysubject not expressed in the title, the act shall be void only as to that much not expressedin the title. Section 29 of the Limitations Act is entitled "An Act in regards to limitations,"though the Section is not concerned with limitations in the ordinary sense. A statute oflimitations normally governs the time within which a legal proceeding must be institutedafter a cause of action occurs. Section 29 goes further than just limiting the time in whicha suit may be brought; it also bars a cause of action before it occurs. The title of Section29 does not mention that it bars a cause of action and thus under Section 13 of ArticleIV a subject not expressed in the title is void. The plaintiff had not argued this point andaccordingly the court did not rule on it. What in fact is the effect of Section 29 is topossibly preclude an action before all elements of the tort become present. The damagemay not occur until after the four year period.S Ill. Const. Act. IV, § 22, provides a list of subjects upon which there shall be nospecial legislation, none of which are relevant here. It then concludes with a general pro-vision that "in all other cases where a general law may be applicable, no special law shallbe enacted."

Carriers - Personal Injuries - Escalators and Elevators - Escaltors are Not Common Carriers in Illinois

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Carriers - Personal Injuries - Escalators and Elevators - Escaltors are Not Common Carriers in Illinois

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