Liability questions raised about county elevator

Supervisors vote to sign contract with elevator company despite remaining questions over possible liability related to sheriff's building elevator
Supervisor Botelho said the issue wasn't a big deal and should move forward immediately.
Supervisor Muenzer thought county staff was, "over thinking" issue.

What goes up must come down, that is, unless it’s an elevator at the San Benito County Sheriff’s building. The topic of the elevator resulted in an unusual amount of discussion at the March 22 county Board of Supervisors' meeting, and even caused one supervisor to ask in frustration, “why has this risen to our level?”

When Brent Barnes, director of the Resource Management Agency, stepped up to the podium to give his report on the status of the elevator at the Sheriff’s and Public Works Planning building on Technology Drive, he set the mood of the discussion by prefacing his comments with the apology, “I’m just the messenger.”

He told the supervisors that the problem with the elevator had been going for at least a year, longer than he had been with the department. The problem, he said, was a disagreement over the contract on maintenance and repair that resulted in the elevator being red tagged by the state, essentially rendering it inoperable.

“It has not been maintained because we cannot agree on a contract with Otis (United Technologies), which is the proprietary maintainer of that particular elevator,” Barnes said, and then he told the supervisors he didn’t have any more to say about the topic, adding, “I suggest that you direct any questions to the (county) counsel’s office, where this seems to have resided for the last year.”

Chairman Robert Rivas told the rest of the board that there were four options. He said the staff was looking for direction on which of the four or possible combinations of options on which to act.

Supervisor Anthony Botelho said the issue has gone on way too long.

“How can we be that far off on terms of maintenance with somebody (Otis) that’s been in the business forever?” he asked, dismayed. “This is real frustrating that we’re even talking about it here. I would suggest whoever is doing this, get it done. It’s not that big of a deal. Otis is the company that fixes elevators. We need this elevator fixed for the public and we shouldn’t even be talking about this.”

Supervisor Jerry Muenzer compared the situation to when he was testifying concerning a bill sponsored by Congressman Sam Farr and a congresswoman asked, “Why has this risen to our level?”

“I have the same question here. Why has this risen to our level?” he said and agreed with Botelho that the dispute had gone on too long. “It needs to get done and it needs to get done now. Just like we need to get these bridges built and they keep getting bogged down in issues.”

The board was told that the main issue is liability, and that the board needed to assume the liability. They were told that there have been at least three rounds of reviews of the contract between Otis and the county, which had been approved by various company officials, only to come back with requests for more changes on the county’s part. As recently as the morning of the board meeting, another email from Otis stated that the contract had been passed to its legal department and more revisions would be coming. The supervisors were told that various versions of the contract included liability amounts that Otis was willing to pay in case of incidents that began at $15,000 and had been reduced to $4,000.

Muenzer wondered about one stipulation in the contract about a $2 million self-insurance policy that Otis had been willing to include the county. He was told that figure was in an earlier draft, before Otis insisted on lower liability limitations, basically rendering the $2 million meaningless.

Asking if the board was expected to approve the current version of the contract that was before it, Muenzer was told that since Otis had not yet given its final approval of that version of the contract, the board should move forward anyway and delegate Ray Espinosa, the county's chief administrative officer, to continue to negotiate with Otis, and authorize Espinosa, acting as the purchasing agent, to execute it. If the board was not willing to assume the risks, other options would have to be considered, including a one-year contract.

Botelho exclaimed, “How the hell do you get hurt in an elevator?”

He was advised that liability also includes damage to the building. He responded that he thought the county staff was, “thinking too much into it.”

In response, Botelho was told, “That’s our job, to let you know the risks.”

Barnes chimed in, “We are professional paranoids.”

“I could trip on the curb walking into the building,” Botelho tossed back.

Then Matthew Granger, county counsel, tried to mollify the conversation: “This is an unfortunate situation. It’s somewhat rare. I can’t explain Otis’s actions. Nonetheless, the repairs need to be made. The contract is not for a large amount. I do believe that while it’s very annoying, that Otis will not stand behind its work, and it’s a serious legal issue that they won’t indemnify the county for any damages caused by their work, I do believe the county’s insurance would cover any incidents that occur there. I think it’s probably remote that something would happen.”

Granger said that if the board felt comfortable assuming the risk, it should instruct staff to move forward and sign the contract and get the repairs done.

Botelho said whatever option or combination of options were voted on he did not want to see the issue come back in a year to be debated yet again. He was told the county was ready to move forward by signing the contract, but Otis still must approve it.

Even though there were still issues to be ironed out and Otis has yet to sign the contract, the board voted unanimously to have Espinosa, acting as the purchasing agent, sign the contract.

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About:
John Chadwell (John Chadwell)

John Chadwell is an investigative reporter for BenitoLink. He has many years experience as a freelance photojournalist, copywriter, ghostwriter, scriptwriter and novelist. He is a former U.S. Navy Combat Photojournalist and is an award-winning writer who has worked for magazine, newspapers, radio and television. He has a BA in Journalism and Mass Communications from Chapman University and underwent graduate studies at USC Cinema School. John has worked as a script doctor and his own script, God's Club, was released as a motion picture in 2016. He has also written eight novels, ranging from science fiction to true crime that are sold on Amazon. To contact John Chadwell, send an email to: johnchadwell@benitolink.com.

Comments

It's unfortunate but juries often make multimillion dollar awards against elevator companies including for non-physical injuries such as fear that the riders claim give them a lifetime of problems.  America's tort system is a crap-shoot, and it's always open season on large corporations and government agencies. [added] An elevator in a public building is a conveyance with a "Sue Me" sign attached.  

If you are a small service consumer, such as the San Benito County government, the elevator maintenance company simply can't charge you enough to pay for the insurance or to self-insure the risk; this is nuisance business. If we were big customer that's a different situation entirely.

Everyone wants their day in court, but it costs our society a fortune, the alternative is to have the world's largest pool of unemployed lawyers.

============

"If the United States Army and the American Bar Association put every man and woman they have in the field, the lawyers would outnumber the soldiers by nearly ten percent. The American Medical Association would fare even worse in such a contest, as would most other professional groups, including those representing the nation’s police and firefighters.

There are 1.2 million lawyers in this country. By comparison, there are 1.1 million soldiers (and that includes the Active, Reserve, National Guard and cadet components of the U.S. Army). It is not only those who defend the nation that are outnumbered by those who ply the law as their trade, but also those who heal, safeguard and protect the public.

America has 945,000 doctors, 800,000 firefighters (according to the U.S. Fire Administration, a division of the Federal Emergency Management Agency, FEMA) and 800,000 police. That last number includes the 120,000 officers in all federal law enforcement agencies as well as the 680,000 or so full-time personnel of all state, city, county, local, university and college police forces combined."

Marty Richman  

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