November 8, 2011

Fourth DCA Reverses and Remands Trial Court’s Directed Verdict Against Plaintiff

Westervelt v. Thyssenkrupp Elevator Corporation and Toscana North Condominium Association, Inc.
Case No. 4D08-3037

Westervelt worked as a concierge at a Toscana condominium building. Westervelt was injured as a result of riding in a condominium elevator, which suddenly stopped while traveling from an upper floor to the lobby. Toscana had hired Thyssenkrupp to maintain and repair the condominium elevators. Following Westervelt’s injuries, she filed a complaint alleging various counts of negligence against Thyssenkrupp and Toscana. During the trial, the trial court entered a directed verdict against Westervelt and she appealed.

The Fourth District Court of Appeal noted that although whether a legal duty exists in a negligence action is a question of law for the court, entry of the directed verdict was improper because Westervelt submitted evidence without objection that Toscana had a duty to maintain its premises. Thus, Toscana’s duty of care was clearly established at trial, and the evidence at trial established that Thyssenkrupp’s duty of care was to maintain and repair the elevators. Therefore, the court concluded that whether or not there was a breach of their respective duties should have been left for the jury to decide.

The court reversed the trial court’s directed verdict and remanded for a new trial “because a proper view of the evidence could sustain a verdict in favor of Westervelt.”