Otis Elevator Company, APRIL 2008
Otis Elevator Company, APRIL 2008
In a case involving a woman injured when an elevator stopped abruptly when the elevator emergency-stop “safeties” suddenly applied, Otis Elevator Company contended that they could not possibly be held liable under Virginia law.
A memorandum in opposition to a demurrer was filed by the independent contractor (Otis Elevator Company, an elevator service and maintenance company). The Otis demurrer argued that an independent contractor cannot be held liable in tort for personal injuries to third persons because its duties arose out of a contractual relationship with the property owner (Richmond International Raceway).
Plaintiff’s counsel argued in their memorandum written and filed by Roger T. Creager that an independent contractor can be held liable in tort to third persons when it affirmatively undertakes to perform and provides services and then does so negligently. They argued that Virginia caselaw draws a distinction between mere nonfeasance (where there may not be liability in tort) and misfeasance (where there is liability in tort).
In an order entered on February 8, 2008, the Henrico Circuit Court agreed with the position advocated by Creager at the Court hearing on February 8, 2008 and in the memorandum, and overruled the Otis demurrer. The Otis memorandum in support of demurrer, the Plaintiff’s memorandum in opposition, and the Court’s Order are all posted.