Trial Magazine

In 2010, our law firm started working on a case for the Helvey family whose son, Jacob, had been crushed by a home elevator. At first, our clients didn’t understand how their son became trapped. All they knew was that what happened to their son never should have happened, and they needed help. We soon discovered that this was not an isolated incident but rather the most recent tragedy resulting from an industrywide defect that had caused injuries and deaths for decades. Over the next 12 years, our firm represented other clients in similar cases and would fight to change industry design standards and force recalls to prevent future tragedies.

Litigation can be a powerful tool for change by providing a means to address risks to the public. In particular, it can provide a stopgap when regulations and safety codes fall short. But sometimes litigation can be a taking-off point for a larger effort to bring about change in an industry—pushing companies to recall unsafe products and regulators to strengthen safety codes. The home elevator cases we handled imparted useful takeaways for how to approach this type of industrywide change.

Initial Case Investigation and Discovery

When confronted with a case that appears to involve a product defect, begin with an in-depth investigation to find out what went wrong. Through discovery, you can learn of dangerous risks to the public that have not been disclosed or properly addressed by a defendant product manufacturer or the industry as a whole.

Experts. Hire experts in the relevant regulatory field and engineers, safety consultants, and architects who can address the product defect or failure that occurred, as well as applicable safety standards and where they fell short. In the Helvey case, our engineering and elevator experts inspected the subject elevator and found that the gaps between the elevator doors were as much as 7.5 inches in places, enough space to entrap a small child. Yet, industry standards mandated that the gap must be 5 inches or less.¹

These types of experts also can be very effective in presenting credible opinions and evidence to regulatory agencies and safety organizations. Our firm’s philosophy is to retain experts who are the leaders in their field—these experts will scrutinize the product at issue to ensure that your client’s case is a strong one, and we gain significant credibility with jurors and regulatory agencies by retaining experts whose qualifications and reputations are first-rate.

Review the documents. Research and thoroughly review applicable safety codes, regulations, and standards. In these cases, look at building codes, OSHA regulations, environmental regulations, fire safety regulations, ADA regulations, and engineering standards.

Documents to request include industry standards, meeting minutes and studies, applicable codes, design specifications, maintenance records, inspection records, internal memos, safety assessments, video footage, incident reports, and adverse event reports. Ask your experts to help identify key documents and data to seek from the defendant manufacturer.

In our clients’ case, we found that the first residential elevator code, created in 1955, prohibited any gaps between home elevator doors greater than 4 inches.² This was the standard until the American Society for Mechanical Engineers (ASME) changed the elevator code in 1980, allowing a 5-inch gap.³ Then, in the early 1980s, the home elevator industry began using accordion doors for home elevator cars, which created peaks and valleys of space. So, while there may have been no more than 5 inches of space to the peak, the valleys had gaps that were often 7 to 8 inches deep—more than enough for children to enter.

After searching through dozens of home elevator designs from major manufacturers, it was clear that this was not a single, defectively designed home elevator but instead was an industrywide defect.⁴ Extensive document review also showed that the elevator industry had known for decades that children can be entrapped and killed between the doors of home elevators.⁵ A 1943 internal memo from Otis Elevator Company specifically identified the space gap in home elevators as a potential hazard.⁶

Notably, Otis had developed a design solution to ensure that children could not get stuck in the dangerous gap: a space guard or baffle.⁷ This is a simple device that fits on the inside of the hoistway door, closing the dangerous gap while allowing the elevator to operate normally.

Armed with the knowledge of how Jacob Helvey became entrapped and with the exact reason why the design was flawed, we were able to resolve the Helveys’ claims so they could continue to provide the care that Jacob will require for the rest of his life.

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An estimated 300,000 to 500,000 U.S. homes and buildings contain residential elevators with the outer swing door and interior accordion gate design.

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Push for Broader Change

An estimated 300,000 to 500,000 U.S. homes and buildings contain residential elevators with the outer swing door and interior accordion gate design.⁸ After resolving the Helvey case, our firm developed a multipronged approach to change the home elevator industry, which involved a media campaign, direct communications to the industry, petitioning of the U.S. Consumer Product Safety Commission (CPSC) and other regulatory agencies, and outreach to the industry code committees at ASME. Given the overwhelming evidence of this defect, we expected changes to happen quickly and without resistance—we were wrong.

Industry standards. Most industries have governing standards or guidelines that define minimum requirements and safe practices.⁹ In the case of home elevators, the ASME A17.1 Committee provides the applicable standards in its elevator code.¹⁰

During the litigation, we discovered that the ASME’s residential elevator code itself, and the industry’s interpretation of those standards, was unsafe. Our review of the relevant ASME committee’s quarterly meeting minutes showed that experts had been pointing out a fundamental flaw for years and the warnings were dire: “Children will die if we do not fix the standard by reducing the maximum permissible gap to 4 inches and measuring to the deepest part (valley) of the accordion door.”¹¹

In fact, years before Jacob Helvey was injured, an ASME task group was assigned to study this entrapment issue and determine what the safe standard should be.¹² Despite repeated requests for a hazard analysis from subcommittee members, the industry-led task group refused, leaving the standards and their interpretation unchanged.¹³

After the Helvey case resolved, our elevator experts appealed to the relevant ASME A17.1 committees.¹⁴ Based on testimony from these experts, ASME halted implementation of a newly proposed standard that was inadequate at eliminating the entrapment risk.¹⁵ Yet, it took another three years before a new, safer standard would be enacted, when the residential elevator code for new home installations finally limited the elevator gap to 4 inches maximum, measured to the deepest part of the elevator door.¹⁶

Jacob Helvey’s case sent ripples throughout the home elevator industry. Shortly after the Helvey case settled, home elevator manufacturers in the U.S. began designing their elevators with these new safety standards, and many equipped their home elevators with additional safety features, such as light curtains, to prevent child entrapment.¹⁷

As a result, nearly every new home elevator installed in the United States since 2014 has eliminated this deadly gap. However, these new standards applied to new elevator construction only and not to the estimated 300,000 to 500,000 U.S. homes and buildings already containing residential elevators with the outer swing door and interior accordion gate design.¹⁸

State codes. Industry codes set minimum requirements for design and safety standards, but they vary by state. Experts from our elevator cases reached out to the agency responsible for adopting and implementing elevator codes in our home state of Georgia. As a result of the expert’s efforts, the Georgia insurance commissioner issued a letter of warning to every home in Georgia with a home elevator.¹⁹ Georgia subsequently adopted a new regulation to limit the door gap in newly installed elevators to 3 inches.²⁰ This was helpful in alerting the public to the danger but still insufficient to eliminate these hazards across the country.

Communicate with the industry. Attorneys can further advocate for change by reaching out to the industry involved to press for safety modifications and warn it of the potential liability exposure if it fails to do so. Our law firm sent correspondence to every home elevator manufacturer in the United States that we could identify about the defective entrapment hazard in residential elevators. Included in that correspondence were videos of testing a mechanical engineering expert performed, using live human subjects, to demonstrate that even when a home elevator was built according to exact manufacturer specifications, an 8-year-old child could still become entrapped in the space. This testing was accomplished by building out an exemplar elevator entrance. The letters to elevator manufacturers urged them to recall and fix existing elevators and put them on notice that children would be injured or killed if they did not act quickly.

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Consumer advocacy groups can help to effectively disseminate information about safety hazards. Reach out to them and share the information you’ve gathered.

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Consumer advocacy groups and the media. Consumer advocacy groups can help to effectively disseminate information about safety hazards. Reach out to groups particular to the facts of your client’s case and share the information you’ve gathered.

Media campaigns can also put pressure on an industry to make safety changes. Together, you can work with the media to inform the public about the hazards of a particular product design, which serves not only to educate the public about the existence of the hazard but also adds pressure to public officers to take action.

In our home elevator cases, we worked with consumer advocacy groups, including The Safety Institute,²¹ which published a series about the hazards of home elevators and worked with us on a formal petition to the CPSC.²² This work brought some national attention to the issue, increasing awareness and triggering interest from other media organizations.²³

Work with regulators. Consider approaching an agency, such as the CPSC or another regulator, that oversees the product at issue. Report the incident itself, as well as expert findings about the defect, and request that corrective action be taken.

Why is it important to work with regulators? Regulatory agencies have the power to effect change. Many states are slow to incorporate updated versions of codes—so in this case, it was extremely unlikely that there would be immediate or universal adoption of the new elevator code. More important, the revised door spacing requirements in the elevator code applied to new installations only and did not address or correct the thousands of defective elevators already in homes across the country.

Two attorneys from our law firm traveled to Washington D.C., shortly after the Helvey case resolved to meet with staff at the CPSC. We presented our findings and asked the CPSC to recall home elevators and to revise the home elevator code. We warned the CPSC that action was still needed pending the ASME’s revision of the elevator code, and that if action was not taken, more children would be injured or killed.²⁴ Sadly, our prediction was correct.

In February 2017, tragedy struck yet again when a three-year-old was entrapped in his grandparents’ home elevator in Little Rock, Ark., crushing him to death. We promptly notified the CPSC of this entrapment death. The CPSC denied our petition to recall, finding that the issue was moot since the code had been changed.²⁵

But as public pressure began to build on this issue as a result of news coverage, things started to change. In December 2020, Otis Elevator Company recalled approximately 5,000 home elevators because of the entrapment hazard.²⁶ Otis instructed consumers to immediately stop using the elevators until they were inspected and repaired—all at Otis’s own cost.²⁷

Then, in July 2021, the CPSC filed an administrative complaint against a company to force them to recall their defective home elevators and repair them free of charge.²⁸ The following year, the company agreed to recall its elevators and “provide the same fix that other elevator companies have agreed to provide to their customers.”²⁹

In January 2022, three home elevator manufacturers recalled their home elevators and repaired them.³⁰ One home elevator manufacturer has not recalled or repaired its home elevators, contending it does not have the financial resources to do so.³¹ In January 2022, the CPSC warned consumers to immediately stop using those elevators going back to 1979.³²

By coupling litigation with advocacy, it is possible for trial lawyers to bring national and industrywide attention to fatal defects and risks to the public. While it takes persistence and tenacity in the face of industries traditionally resistant to change, and the inherent inefficiencies of government, such efforts can ultimately save lives. Today, every new home elevator installation in the United States should be designed and manufactured to prevent child entrapments, and most of the defective home elevators have been recalled.

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David Krugler and Laura L. Voght are partners at Cash, Krugler & Fredericks in Atlanta. They can be reached at dkrugler@ckandf.com and lvoght@ckandf.com, respectively.

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Notes

1. Am. Soc’y of Mechanical Eng’rs, Safety Code for Elevators and Escalators A17.1 §5.3 (2010).
2. Am. Soc’y of Mechanical Eng’rs, Safety Code for Elevators and Escalators: Private Resident Elevators and Inclined Lifts A17.1 (5th ed. 1955).
3. Am. Soc’y of Mechanical Eng’rs, Safety Code for Elevators and Escalators: Private Resident Elevators and Inclined Lifts A17.1b (9th ed. 1980).
4. See Todd C. Frankel, Home Elevators Have Killed and Injured Kids for Decades, Wash. Post, July 18, 2019, https://tinyurl.com/4mc99hb6; James Filippone & John Koshak, Solutions Needed to Ensure Children’s Safety, Elevator World, Mar. 1, 2014, https://elevatorworld.com/article/solutions-needed-to-ensure-childrens-safety/; Todd C. Frankel, Senator Calls for Inquiry Into CPSC Over Home Elevator Accidents, Wash. Post, July 23, 2019, https://tinyurl.com/yf3uy835.
5. Id.
6. Otis Elevator Inter-Office Correspondence from H.R. Otto, Automatic Elevators Space Conditions Between Hoistway Doors and Threshold (Sept. 30, 1943), https://tinyurl.com/mrysauz7.
7. Id.
8. See Home Elevators Have Killed and Injured Kids for Decades, supra note 4; Fillippoe & Koshak, supra note 4; Senator Calls for Inquiry Into CPSC Over Home Elevator Accidents, supra note 4.
9. Many organizations publish industry standards, but two examples are the American National Standards Institute (ANSI) (https://www.ansi.org/) and the International Organization for Standardization (ISO) (https://www.iso.org/home.html).
10. Am. Soc’y of Mechanical Eng’rs, Safety Code for Elevators and Escalators A17.1 §5.3 (2019), https://www.asme.org/codes-standards.
11. Committee meeting minutes are on file with the authors.
12. A17 Residence Elevator Committee, ASME Codes & Standards, https://cstools.asme.org/csconnect/CommitteePages.cfm?Committee=l01031500.
13. Committee meeting minutes, supra note 11.
14. Safety Research & Strategies, Inc., The Elevator Design Hazard That’s Been Killing Children for Decades, July 11, 2013, https://www.safetyresearch.net/the-elevator-design-hazard-thats-been-killing-children-for-decades/#more-880.
15. Id.
16. Am. Soc’y of Mechanical Eng’rs, Safety Code for Elevators and Escalators A17.1 §5.3.1.8.3 (2013).
17. Based on our observations after the settlement. As the matter was brought to the attention of the various A17 committees, manufacturers began posting warnings to consumers on their websites and talking about additional design and safety changes to their products.
18. Id.
19. Correspondence to Owners of Residential Elevators and Residential Elevator Companies from Ralph T. Hudgens, Commissioner of Insurance, Re: Residential Elevator Hazard (Dec. 20, 2013).
20. Ga. Comp. R. & Reg. §120-3-25-.20(16) (2021).
21. For more, see https://www.safetyresearch.net. Other potential groups to consider contacting include Consumer Action (www.consumeralert.org), the Consumer Federation of America (CFA) (www.consumerfed.org), and Public Citizen (www.citizen.org).
22. Petition Requesting Rulemaking on Residential Elevators, 80 Fed. Reg. 3226 (Jan. 22, 2015).
23. This included a series of stories about the defects and a three-page article on home elevator cases. See Dana Fowle, I-Team: Home Elevator Dangers, Fox 5 Atlanta, Nov. 8, 2013, https://www.youtube.com/watch?v=h7GgnMHIrAg; Dana Fowle, I-Team: Home Elevators Follow Up, Fox 5 Atlanta, Dec. 20, 2013, https://www.youtube.com/watch?v=TeH_LAI65zk; Dana Fowle, I-Team: Home Elevators Letter, Fox 5 Atlanta, Feb. 7, 2014, https://www.youtube.com/watch?v=TWM5X-WDp6Y; Dana Fowle, I-Team: Home Elevators Code Change, Fox 5 Atlanta, July 11, 2014, https://www.youtube.com/watch?v=4awdHFwA4qM; Dana Fowle, I-Team: Home Elevators Vote, Fox 5 Atlanta, July 21, 2014, https://www.youtube.com/watch?v=5SXyYTKCOEg; Dana Fowle, I-Team: Home Elevators Vote, Fox 5 Atlanta, July 25, 2014, https://www.youtube.com/watch?v=97eayq4ektQ. The Washington Post later wrote a series of stories about the issue. See Home Elevators Have Killed and Injured Kids for Decades, supra note 4; Senator Calls for Inquiry Into CPSC Over Home Elevator Accidents, supra note 4; Todd C. Frankel, Attempt to Warn Public About Home Elevator Dangers Sparks CPSC Rift, Wash. Post, Aug. 2, 2019, https://www.washingtonpost.com/business/2019/08/02/attempt-warn-public-about-home-elevator-dangers-sparks-cpsc-rift/; Todd C. Frankel, Another Child Was Crushed By A Home Elevator, Just Months After U.S. Regulators Decided Against Safety Recall, Wash. Post, Feb. 13, 2020, https://tinyurl.com/3ywh4t2b.
24. The Safety Institute et al., Petition for Recall to Repair/Retrofit and Rulemaking, Nov. 11, 2014, https://www.ckandf.com/wp-content/uploads/2014/11/20141110-Elevator-Petition-For-Recall-To-Repair-and-Mandatory-Rulemaking.pdf.
25. Consumer Prod. Safety Comm’n, Denial of Petition, Apr. 26, 2017, https://tinyurl.com/474b7sne.
26. Consumer Prod. Safety Comm’n, Otis Elevator Company Recalls to Inspect Private Residence Elevators Due to Entrapment Hazard; Risk of Serious Injury or Death to Young Children, Dec. 17, 2020, https://tinyurl.com/4da92nt8.
27. Todd C. Frankel, After Years of Devastating Home Elevator Accidents, First Safety Recall Announced, Seattle Times, Dec. 17, 2020, https://tinyurl.com/mryf74t7.
28. Compl., In the Matter of Thyssenkrupp Access Corp., CPSC Docket No. 21-1, (Consumer Prod. Safety Comm’n July 7, 2021); Consumer Prod. Safety Comm’n, CPSC Sues Thyssenkrupp Access Corp. Over Deadly Gap Hazard in Residential Elevators; Action Prompted by Three Incidents: Once Child Died, Another Permanently Disabled, and a Third Hospitalized After Becoming Entrapped, July 7, 2021, https://tinyurl.com/3ahpdh74.
29. Consumer Prod. Safety Comm’n, Statement of Chair Alexander Hoehn-Saric on TK Access Solutions Corp. Settlement, Sept. 14, 2022, https://tinyurl.com/mr2hesvz.
30. Consumer Prod. Safety Comm’n, CPSC and Three Leading Elevator Manufacturers Announce Recalls of Residential Elevators Due to Industry-Wide Issue of Child Entrapment Hazard; Risk of Serious Injury or Death to Young Children, Jan. 11, 2022, https://tinyurl.com/3h75d7ta.
31. Consumer Prod. Safety Comm’n, CPSC Urgent Warning: Stop Using Waupaca Residential Elevators Due to Fatal Entrapment and Serious Fall Hazards, Jan. 11, 2022, https://tinyurl.com/nkmnsnsh.
32. Id.