SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK ————————————————————————— X
Index No.: 150207/11 as consolidated with Idex No.: 651472/14
CF 620 OWNER, LLC, CF 620 OWNER ONE, LLC, CF 620 OWNER TWO, LLC, CF 620 OWNER THREE, LLC, BONJOUR 620 I, LLC, BONJOUR 620 II, LLC, YL 620 SIXTH, LLC, HENEGAN CONSTRUCTION CO., INC., ROBINSON ELEVATOR LLC, ROBINSON ELEVATOR GROUP, MJR ELEVATOR CONSULTING GROUP, LLC, SCHINDLER ELEVATOR CORPORATION, BUILDING SERVICE 32BJ HEALTH FUND, SERVICE EMPLOYEESI INTERNATIONAL UNION 32BJ, PRINCIPAL FACILITY MANAGEMENT, LLC, NEWMARK KNIGHT FRANK GLOBAL MANAGEMENT SERVICES, NEWMARK & COMPANY REAL ESTATE, INC.
PETER J. CREEDON an attorney duly admitted to practice in the State of New York hereby affirms pursuant to 2106 CPLR, that I am a member of Creedon & Gill P.C., attorneys for Plaintiff in the within action, that I am familiar with the captioned matter based upon my review of the file of the matter maintained in our offices and upon conversations with various parties and their representatives. I draw this affirmation on information and belief and in Opposition to the Defendants’ Motions for Summary Judgment.
Plaintiff Fransceco Bellucia, a union carpenter, was injured and permanently disabled on May 18th, 2011 when an elevator he was riding in at 620 Sixth Avenue, New York, New York pulled through its brakes and slid fifty feet into its pit.
Plaintiff Bellucia, along with the twenty-one other construction workers and elevator operator Jose Molina, were ascending in “Freight Elevator Six”, as part of a large crew engaged in the renovation of several floors of 620 Sixth Avenue, a one hundred and twenty year old building occupying half a city block on 6thAvenue between 18th and 19th Streets.
620 6th Avenue
Plaintiff Bellucia, along with his co-plaintiffs, was injured when the brakes of the elevator failed to hold the elevator car in place after it reached the Fourth Floor. The elevator car accelerated in a plunging slide, retarded only by a connection to its counterweights. The car “over sped” for 50 feet, crashing into the elevator pit at a speed of between 21 and 23 feet per second, a speed equivalent to an unprotected fall from the top of an eight foot ladder. The New York City Fire Department swarmed the scene transporting nine seriously injured workers, including Mr. Belluccia, to a nearby hospital.
Within hours the New York City Department of Buildings attributed the accident to brake failure after an inspector found that the elevator’s brake shoes were not making full contact with the elevator motor’s “Drum”, a condition Building Inspector Alphonso Marshall documented in a photograph showing that he could slide a dollar bill between the brake shoes and the drum they were supposed to seize.
As set forth in detail in the accompanying Affidavit of engineer and Certified Elevator Inspector Robert Caporale, (Caporale Affidiavt, Exhibit “1”,) the accident was both totally foreseeable and completely preventable. Freight Elevator Six was over a hundred years old, completely dilapidated, beyond repair and plagued by recurring problems that foreshadowed this accident.
Building Owner CF 620 OWNER, LLC (“CF 620”) and it managing agent NEWMARK KNIGHT FRANK GLOBAL MANAGEMENT SERVICES(“Newmark”) were aware of the failing condition of the elevator, yet still barred construction workers from using stair wells to reach their work assignments. The CF620 and Newmark insisted that the construction workers be illegally transported as passengers in the failing freight elevator, and recklessly ordered elevator “consultants”, ROBINSON ELEVATOR GROUP (“Robison”) and MJR ELEVATOR CONSULTING GROUP (“MJR”) to try and boost the elevator’s carrying capacity to 125% of its rated load.
Robinson botched this reckless assignment shortly before the accident, setting the stage for the fall. Sealing the fate of the workers in the car, when the main “drum brakes” failed, a backup mechanical “governor” failed to activate to trigger the elevator’s safety brake.
The building had been warned of precisely such a failure scenario by it elevator maintenance company, SCHINDLER ELEVATOR CORPORATION (“Shindler”), who specifically warned that sheet rock, metal dust and saw dust pouring into the elevator shaft during construction were mixing with the elevator’s oils and greases and creating a “mud” that gummed up, mucked and jammed up its components. The warnings were ignored.
The other Defendants in this case, Shindler, general contractor HENEGAN CONSTRUCTION CO., INC.,, (“Henegan”) build-out tenant BUILDING SERVICE 32BJ HEALTH FUND; SERVICE EMPLOYEES INTERNATIONAL UNION 32BJ;(“32 BJ”) and elevator-operator employer PRINCIPAL FACILITY MANAGEMENT, LLC(“Principal”) where less willfully dismissive of worker safety, but they could have all have easily prevented the accident by simply alerting the New York City Department of Buildings to the fact that Freight Elevator Six was both unsafe and being used as a passenger elevator, a danger they were aware of and had a duty to act on.
The arrogance of the CF620, Newmark and Robinson were not dampened by the accident. Instead they were spurred further into a fumbling and transparent cover up.
Brazenly on May 23rd, 2011 Robinson principal Christopher Robinson produced a sworn and notarized letter averring that after the accident had occurred, and with no repairs at all having been done to it, Freight Elevator Six “passed” a “125% load test”; meaning that it could safely stop and control descending load of 6,500 pounds -. 125% of its rated load carrying capacity of 5,000 pounds. Such an assurance had been demanded by general contractor Henegan as a condition of permitting the workers to return to their jobs.
In conjunction with a deceitful incident report created by Newmark Portfolio Manager Al Voci that sought to cast all of the blame on elevator operator Jose Molina, the letter and was intended to demonstrate that nothing mechanically associated with the elevator had caused the accident, or indeed that there had been any “accident” at all.
But in the most dramatic moment of the many depositions held in this case, Jon Halpin, an engineer brought onto the job site as a Defendant’s consultant testified unequivocally and under oath that the letter was a lie. He testified that he had observed the test, and that a test of 6,500 pounds was never even attempted, because the elevator could not even brake 6,000 pounds, and had started to fail at 5,500 pounds.
Deposition Testimony of Engineer Jon Halpern. Page 94, Line 23
Q. Additional weights added thereafter?
Q. What load was in the car at that point?
Q. What happened? With what result?
Q. It failed?
Q. When you say it — now, we have 6,000 pounds in the car, correct?
Q. Basically the car — an attempt was madeto stop the car?
A. Same test, went up one floor, came down, slid down onto the buffers.
Q. With 6,000 pounds?
Q. When you say go up and go down, your understanding was the car was brought to the first floor, correct?
Q. And then it was driven down by the operator, whoever the operator was, the brake applied to see if it would stop the car?
A. Actually, on the last one it didn’t go up to the first floor because we already saw that at 5,500 it started to slide but it did control, so we didn’t go up to the first floor. We said just go up a few feet
The cover-up of the CF620, Newmark and Robinson included:
1) Agreeing to stonewall the bald faced lie that the elevator had not oversped at all, but that the entire incident was attributable to the elevator operator allowing the elevator to descend into the pit at its normal speed of 1.81 miles per hour, a speed which is attained by a free fall from a height of 1.3 inches, after which every Plaintiff in the elevator lay down and faked an injury.
2) Repairing the elevator’s brakes after the accident without the City or any one else’s knowledge and in violation of the City’s lock out order.
3) Denying that any repairs were done after the accident or that any repairs were needed.
4) Falsifying a Newmark Knight accident report attributing statements of culpability to Elevator Operator Molina which he never made.
5) Falsifying a sworn letter requested by general contractor Henegan to aver that the Elevator could safely handle a load of 6500 pounds when it could, at best, handle 5500.
6) Calling a second, different City Inspector to the building after repairs had been made to rubber stamp, complicity or not, the cover-up story that the elevator had not over sped, and to overrule the first inspector’s findings of brake failure.
CONCLUSIONS AS TO THE CAUSE OF THE ACCIDENT
1. A large scale build out of an entire floor was underway and the Building insisted on trying to use two ancient freight cars, one of them the 100 year old Otis freight elevator at issue here, freight car “6” , to ferry to the fourth floor the scores of men and tons of material and equipment involved in the construction on a daily basis.
2. The Building refused to let the workers use the stairs and instead they crowded them like cattle into the freight cars. They refused to spend money for an exterior construction elevator. They had already been told the elevator needed to be replaced but apparently wanted to flip the building which they soon did for a profit of many millions.
3. The Building was aware of constant problems with the elevator breaking down, failing to lift its load, sliding and bouncing, repeatedly out of service and driving construction further and further behind schedule. Purportedly the Building hired “consulting companies” Robison Elevator and its sister MJR Consulting, to make alterations to the elevator to try and force it to operate at “125%” of its rated capacity of 5,000 pounds, in part because it was being illegally used as a passenger elevator, which has to manage 125% of its rated load, and because of the unrealistic hope that this would enable the freight car to stay in service more often.
4. When Robison/MJR did brake work on the car towards the 125% of capacity goal they did not have the specifications or experience needed do so properly, at least in part due to the age of the elevator, and failed to do the brake job properly
5. The actual rated capacity of the Car was unknown, again because of its age, but was already out of balance with its counterweights because it had previously been retrofitted with large amounts of diamond plating.
6. The Building had been warned by their elevator maintenance company, Schinlder, that large amounts of dirt, dust and debris from the build out were pouring into the elevator shaft, mixing with the oil and grease of the machinery and creating a hard “mud” that interfered with the Elevator’s operations, but the Building and their agents did nothing to prevent the condition from continuing to accumulate.
7. On the day of the accident when the elevator arrived at the fourth floor, the operator leveled the car and opened the gate cutting power to the motor and dropping the brake shoes on the drum. But because: (1) The brakes had “glassed” or “glazed” when the brake shoes did not fully “pick” off the drum, and/or because (2) The brakes weren’t properly seated on the drum, the car began to slide and “pull through the brakes”. Within moments the main Elevator cable was being pulled up the shaft faster than it could be fed back onto the drum. A “Slack Rope” condition occurred tripping a Slack Rope safety switch in the bottom of the shaft – permanently cutting all power to the motor and disabling any chance of using the motor to slow the car.
8. Because of the distance to the pit the car over-sped dangerously in accordance with an ordinary gravitational “Atwood’s” calculation. Because the car was retrofitted with diamond plate it over sped even more.
9. Construction, sheet rock and saw wood “dust” was pouring regularly into the shaft mixing with grease and oil associated with the elevator components creating “mud”. It has been well known for over a hundred years that this condition commonly renders centrifugal governors inoperable, and the Building had been warned of this condition. Because the governor was fouled in this way it did not trip. The result was a crash landing in the basement at approximately 21 feet per second, equivalent to a unprotected fall of eight feet off of a ladder, a crash landing that smashed one of the original hard rubber bumpers in the pit to pieces.
AFFIDAVIT OF PLAINTIFF’S EXPERT ENGINEER AND
FACTS SUPPORTIVE OF THESE CONCLUSIONS
1. Deposition Testimony of Plaintiff: Francesco Belluccia’ s.
Plaintiff Belluccia is an experienced contractor. He is also a certified site-safety professional. According to Mr. Belluccia when the car reached the fourth floor, the operator opened the gate, he heard a brief “whipping” noise and the car began to slide and drop, accelerating four floors into pit. Like all of the Plaintiffs he described the crash as very hard. By the time the car hit he felt a strong wind whipping around them in the car. The car’s front gate was fence-like, so he was able to see the floor numbers rushing by him as they accelerated. He has not worked since the day of the accident. He describes complaints that he and fellow workers had made concerning ongoing problems with Freight Car 6.
2. Deposition Testimony of Elevator Operator: Jose Molina
Elevator Operator Jose Molina has been operating this and other freight elevators for decades. On the day of the accident he had taken the full car load of contractors up to the fourth floor. He leveled the car and opened the gate. At that moment the car began to drop and slide and accelerated into the pit. He described the crash as very hard.
3. Deposition Testimony of General Contractor: Henegan Construction Foreman Keith Pozzanghera
Henegan Construction Foreman Keith Pozzanghera describes speaking to two of his employees after the accident, one on a stretcher and in obvious distress. He describes the practice by which contractors were forced to use freight elevator 6 as a passenger elevator and were prohibited from using stairs to ascend to their work place, the build-out of the fourth floor. He describes his own experiences with Freight Car 6 which bounced excessively before the accident, but after repairs were made after the accident did not bounce.
4. Deposition Testimony of Schindler Elevator Maintenance Thomas Arpa
Schindler Mechanic Thomas Arpa testified he was responsible for the oil and grease contract for freight car 6. He testified that the elevator was too worn out and should have been previously replaced. He testified that the building was not giving Schindler the cooperation necessary to keep the elevator safe. He testified that when Molina lifted the gate cutting power to the motor and dropping the brakes on the drum, that if the brakes were misaligned as Building Inspector Alphonso Marshall found them to be after the accident, and the car was overloaded, the car could begin to slide and then accelerate into the pit.
He describes large amounts of dirt and dust from construction in the building pouring into the shaft and mixing with the oil and grease in the machinery to create a hard “mud” interfering with machinery. He testified that this was a condition that he complained of to the building but which they never addressed.
5. Deposition Excerpts of Building Elevator Consultant: MJR Consulting principal Michael Robinson
MJR Consulting principal Michael Robinson testified that the Building wanted Freight Car 6 to be able to hold 125% of its “rated” capacity because of the use it was being put to in the build out.
He testified that MJR and its sister corporation Robinson Elevator replaced the brakes shoes and adjusted the brakes shortly before the accident but admits that they did not have the specs for making such an adjustment. As evidenced by the accident that occurred soon after these repairs were not made properly.
This information is important not just of itself, but also because it demonstrates the kind of cover up that was going on after the accident, in which the Building sought to blame the entire accident on “operator error” and claim that the “impact speed” of the car in the pit could not have been more than the rated 160 feet per minute, which is 1.8 miles per hour, a velocity achieved in free fall from a height of 1.2 inches.
6. Deposition Excerpts of Robinson Elevator Investigating Engineer Jon Halperin
Investigating Engineer Jon Halperin was brought to the scene by Robison elevator’s lawyer the day of the accident. Describes the load testing of the 6 freight car post accident, testifies in contradiction to the Robinson’s account, testifies that the 6 car – rated at 5,000 pounds – barely passed at 5,500 pounds and failed at 6,000 pounds and that, accordingly, there was never a 125% test, which would have required a test at 6,250 pounds. His photos show much of the dilapidated and obsolete condition of the Elevator and related equipment.
7. Deposition Excerpts of Building Inspector Alphonso Marshall
Building Inspector Alphonso Marshall responded to the accident scene and documented the brake shoes not making full contact with the drum along with a large amount of slack rope and the “slack rope” emergency cut off switch activated.
It appears that the Building did not like his findings and the next day brought down another Inspector with a relationship to them who went along with the cover-up and sought to blame the accident on the operator and parroted Al Voci’s story that the operator drove the car into the pit at about 1 or 2 miles per hour.
While Inspector Alphonso testified that he did not believe that the car over-speed he acknowledged that the sole reason for concluding this was that the governor did not trip. No one did anything more to test or inspect the governor other than to look at it to see if it had tripped. The Governor was never tested contemporaneously with the accident since the process is highly invovled and requires removing the several hundred foot long iron cable from the Governor and putting the Elevator out of Service for at least a day.
He acknowledged that if the governor had failed, as all machines are capable of doing, that retrofitting the freight car with diamond plating put it out of balance with its counter weights and that when further overloaded with construction workers in a situation where the brakes either glassed, or were out of alignment to begin with, could cause the car to slide, accelerate and then over-speed into the pit.
8. Building Inspectors Marshall’s Photos and Accident Report
Shows the brake shoes out of alignment with the drum. May also show that another layer of brake shoes were added between when he took his picture and when Investigation Engineer Halperin took his.
9. Testimony and Photos of Investigating Engineer Halperin
Testified directly that the May 23rd, 2011 letter from Robinson Elevator representing that Freight Car Six passed a 125% load test after the accident was falsified. Testified that the Car did not even pass a 120% load test and that 125% load test was not even attempted. His photogarphs, besides showing the general dilapidation of the machine room and obsolescence of Freight Car Six, shows also the filthy condition the Freight Car Six pit and a smashed bumper where the crash occurred.
10. Building Emails and Work Orders.
Demonstrates the large and varied numbers of difficulties the Building was having with freight Car “6” prior to the date of the accident, slipping, smoking, bouncing, failing to lift its load, descending “uncontrolled” into its pit and the pressure exerted to keep the elevator in service.
11. A short video shot from inside the freight elevator.
Demonstrates the slow rated speed and visibility to workers inside of it which would provide them with a ready frame of reference to gauge the speed of any fall.
12 . The false notarized “125%” load test letter of Christopher Robinson
“FACTS” NECESSARILY EXCLUDED FROM CONSIDERATION
It should be noted at this point that the record demonstrates the Robinson/MJR filed with the Building at the request of Henegan Construction a notarized letter averring that after the accident Freight Car 6 had been tested and found to pass a 125% load test, meaning able to stop and safely hold a descending load of at least 6,250 pounds.
Consulting engineer Jon Halprin, however, testified under oath that this was not true, and that the elevator failed to even hold a static load of 6,000 pounds, merely 120 % and that 125 % test was never even attempted. This fact means that nothing that MRJ or Robinson say about the condition of the elevator before or after the accident can be trusted.
Their claim that nothing was done to repair the elevator after the accident occurred but before inspections were done cannot be trusted. The claim that the elevator passed load tests in the weeks leading up to the accident and after the accident also cannot be trusted.
Figure 1. Falsely Certified Safety Letter
Given MJR/Robinson’s demonstrated willingness to falsify safety documentation to cover up exposure to their clients, it must be assumed that any repairs needed to return the elevator to operation were, in fact, done without being recorded or reported, and that the elevator did not pass load tests leading up to or after the accident.
This is not the only clear instance of the truth being abused in the record. Building manager Al Voci testified after the accident he personally looked under Freight Car Six and saw no damage at all. Pictures taken by consulting engineer Jon Halprin, however, clearly show that one of the rubber bumpers has been smashed. This fact means that nothing that the building says about the condition of the elevator before or after the accident can be trusted.
Figure 2. Smashed Bumper in Freight Car Six’s Pit
Elevator Inspector Doug Smith appears to have been called to the building specifically to contradict the “unsafe brakes” conclusion of Inspector Marshall, and to simply parrot the preposterous story of Al Voci that the elevator descended into its pit at its rated speed of 1.7 miles per hour because the operator stood by and did nothing for upwards of thirty seconds. This fact means that nothing that Doug Smith says about the condition of the elevator after the accident can be trusted.
DILAPIDATED CONDITION OF FREIGHT CAR SIX
Freight Car Six was well past its useful life span, and should have operating as nothing more than a museum piece. Its age presented a problem encountered frequently in the record., the fact that no accurate specifications or component parts were available for the constant repairs it was subjected to. Besides the direct testimony that specifications on how the Brakes on Freight Car Six should have been replaced and adjusted were not available, little demonstrates the point better than the hand letter cardboard placard already in place in the Freight Car’s pit on the day of the accident.
Figure 3. “Beware” placard in Freight Car Six Motor Room
The ‘Beware!” and “Caution” “Freight Car Six Only” warnings pertain to a procedure for “boosting” the Car off its “finals” A car only goes onto its “finals” when it has descended into the pit unexpectedly. Besides demonstrating that this was a common occurrence with Freight Car Six, the placard is evidently intended to keep an Elevator Mechanic or technician from being crushed, or electrocuted, or from shorting out the system in a fiery blaze.
FAILURE OF THE FREIGHT CAR SIX BRAKING MECHANISM
The apparatus that “brakes” a machine like Freight Car 6 centers around a “Drum” that is connected to the drive shaft of the motor that lifts and lowers the car. “Brake Shoes” consisting of carbon composite friction material (asbestos in the old days) are attached to the inside of metal arms known as “Calipers” located on either side of the Drum.
Figure 4. Elevator Braking Mechanism
When there is no electricity being supplied to the Motor, the Brake Shoes are pressed hard in against the drum by Spring Coils located at the top of the Drum. When power is applied to the Motor to lift the Car, the power also energizes an Electro-Magnet that forces the Calipers and Brake Shoes out and away from the Drum allowing the motor to feely turn. After that, when power is cut, as when the Car stops at an upper floor, the Springs should quickly come back into play and press the Brake Shoes against the Drum, braking the car.
If, however, and as happened in this case, the Brake Shoe replacement and adjustment job is not done right two things can go wrong because 1) Clearances of the Brake Shoe to the Drum are not managed correctly or are “out of round” and/or 2) the Spring Coils are adjusted too tightly.
As demonstrated by the picture taken by Inspector Marshall immediately after the accident the Brake Shoes were not fully in contact with the Drum at rest, a condition he demonstrated by taking a picture of a dollar bill slipped between the right side Brake Shoe and the Drum.
Figure 5 Inspector Marshalls Photo. Shoes Not in Contact with Drum
Under this situations when power is applied to the Motor to lift the Car, the Brake Shoes may not “Pick”, meaning that the Brake Shoes may stay in contact and pressed against the Drum as the Motor turns the Drum overpowering the Bake Shoes Friction thus created causes the Brake Shoes to heat up to the point where they are “glassed”, ”glazed” or “crystalized”, as can happen when a truck rides its brakes going down a hill to long or too hard.
The material of the Brake Shoe becomes hard and, like glass, smooth. preventing the Brake Shoes from being able to grasp the Drum as they should when power is cut. Once power is cut, as happened when Operator Molina stopped at the fourth floor and opened the gate, the Car begins to “slide” and “pull through the brakes” and accelerate due to the force of gravity.
Similarly, if the brakes are out of adjustment to the point where they did not make adequate contact with the drum, as Inspector Marshall testified to, the Car will similarly begin to slide when power was cut.
To a reasonable degree of Engineering and Qualified Elevator Inspector certainty one or both of these situations existed here The brakes were unable to hold the Freight Car in place, and the Car pulled through the brakes and slid with accelerating speed until it crashed in the pit. This was due to the negligent workmanship of Robinson/MJR and due to the Buildings reckless insistence that an attempt be made to enable the Car to carry “125 percent” of its “rated load”, to handle loads and duties beyond its capabilities.
THE “SAFETY” GOVERNOR
On the date of the accident Freight Car Six was equipped with an iron, mechanically obsolete “Centrifugal Safety Governor” located in the top of the elevator shaft. (Figure 2.)
Figure 6. Inspector Marshall’s Photo of Freight Car Six Centrifugal Governor.
The Governor is similar to a Governor patented for Otis Elevator in 1916.
Figure 7. A 1916 Centrifugal Governor Design.
In this design a Governor Cable is looped around a wheel-shaped “Centrifugal Governor” in the top of the Elevator Shaft, the Governor Cable also runs around a pulley at the bottom of the Elevator Shaft. Besides running in a loop the Governor Cable is also connected to a Safety Brake on the Elevator Car. This means that as the Elevator Car moves the Governor Cable also moves, spinning the Governor. As the Car speeds up, so does the Governor.
If the Car falls fast enough it is expected that centrifugal force will be strong enough to cause Flyweight Arms mounted inside of the Governor to overcome Springs holding them back and fly outwards to the point where they “Actuate” or physically trip mechanical Jaws that will grab the Governor Cable. If this happen, the Car will still be sliding or falling, but the Governor Cable will be stopped. The idea is that as the Car falls away from the stationary Governor Cable, the Governor Cable should jerk the Safety Brake it is attached to into action.
There are a number different Safety Brake designs. On Freight Car Six it was expected that the Governor Cable, when stopped, would tear away from a spring loaded connection that attached it to the car. In doing so it would activate a kind of “bear trap” device attached beneath the car and bring the car to a stop by a “gripping of the guide rails by the clamping jaws”.
Unfortunately, it has been known as long as these types of Governors have been in use that they are prone to fail when they are subjected to conditions ” cause them to “gum up”. In these conditions the fly weight arms do not swing on their pivots freely, the springs tension holding them in place stiffens and the actuator mechanism can freeze.
As early as 1892 Frank Sprague, Edison protégé, “Father of Electrical Traction”’and founder of the Sprague Pratt elevator company wrote
Another difficulty with the centrifugal governor, whether on the car or on the overhead sheave beams, is that on account of its apparent inaccessibility it is often neglected, becomes gummed up, and when needed is found to be inoperative.” (The Electrical Engineer. Volume 14, No. 235, November 2nd, 1892)
Sprague later sold his company to Otis, and although throughout the record the Elevator at issue here is repeatedly referred to as an “Otis” elevator, in fact the Motor and Brake Assembly bear a “Sprague Electric Elevator Company” emblem.
Figure 8. Sprague Electric Elevator Co. emblem.
In 1919 David L. Linquist, for more than thirty-three years chief engineer of the Otis Elevator Company, wrote the following in Patent Application 1,298,066
(T)he means for actuating the safety device, which is universally some form of centrifugal governor, is ‘often found in actual practice to be uncertain in action and cannot always be depended upon to act “at a predetermined speed of the elevator car. The reasons for this may be pointed out as follows: It is customary to locate the governor of an elevator safety device at the top of the hatchway where it is troublesome to get at ‘and sometimes quite inaccessible and hence in all likelihood it seldom if ever receives the care and attention it should have in order to keep it in proper working condition. Then again dust and dirt are bound to collect on the working parts of the governor, and, mixing with the lubricating oil, will form a gummy substance which in time hardens to such an extent that the governor may refuse to act when it should. Further more it often happens that the elevator is out of use for one reason or another, often for a considerable period of time, and the governor being at rest at such time, the governor parts may rust together or develop friction therein.
Schindler Technician Thomas Arpa testified specifically that this condition was occurring at the building, testifying that sheet rock and construction dust being generated during the build out were pouring into the shaft and creating a hard “mud” condition in the elevator machinery. He testified that he advised the Building about this problem but they ignored him.
Plaintiff Belluccia testified that when the elevator car he was in crashed to the ground a shower of dust and debris cascaded onto him and the other workers through the grating top of the car and a picture taken by Engineer Halperin, (Figure 5) shows a filthy Freight Car Six pit with heavy coatings of grey dust and sheet rock pieces.
Figure 9. Freight Car 6 Pit.
Consistent with this testimony the accumulation of dust, dirt and sawdust can be seen being delivered to the Governor by the Governor Cable can be can be seen on the pictures taken of it by Inspector Marshal.
Figure 10. Dirt and Construction Dust being delivered to the Governor by its Cable.
It is obvious from the testimony of the Plaintiff’s in this case, as well as the damage done in the elevator’s pit that Freight Car Six over sped and that its safety governor did not trip. To a reasonable degree of Engineering and Certified Elevator Inspector certainty, the reasons that the Governor did not trip because the Flyweight and Actuator assemblies had become gummed up with mud caused by the failure of the Building to act on the knowledge it had that this condition was accumulating in the elevator shaft and on the elevator components, including the Governor.
SPEED AT IMPACT AND ADDITIONAL LOAD OF DIAMOND PLATING
When an Elevator falls and is retarded by nothing but the Counter Weights which are connected to the Car by a cable running over a Sheave in the top of the Elevator Shaft, the Speed that the Car reaches upon impact in the pit can be derived from an “Atwoods” calculation. An Atwoods calculation is a classical physics formula which describes the behavior associated with weights connected over the top of a pulley.
Obviously a Car connected to Counterweights will not fall as rapidly as a Car simply free falling. A free falling Car will be Accelerating at Earth’s Gravitational Constant rate of 32 feet per second squared. An Atwoods calculation, however, will give the Acceleration Rate of a Car attached to Counterweights if the weights are known. Once the Acceleration Rate is known, the speed a Car attains over a certain distance, in this case the roughly 50 feet the car descended through into the pit, is simply calculated. .
The Atwoods formula is Acceration (in feet per second) = (Loaded Car Weight minus Counter Weight) x 32) (the gravitational constant) divided by (Car Weight plus Counter Weight), or
Figure 11. Atwoods Calculations
Before making a Calculation in this case, however, it should be noted that there is testimony in the record that this car had chronic difficulties handling its “rated load”, either that it would not lift the load or that it had slid in previous events.
This would appear, in part, to be due to a retrofitting of the car with “Diamond Plating” without regard to the effect that the additional weight would have on the car. Pictures taken of the interior of the Car by Inspector Marshal show Aluminum Diamond Plating on the walls of the Car at least a quarter inch in thickness.
Figure 12. Close up of Diamond Plating
Photos taken by Engineer John Halperin the day of the fraudulent 125 percent load test show the extent of diamond plating on two 10’ by 10’ walls and the entire 10’ by 10’ floor.
Figure 13. Diamond Plating of Frieght Car Six.
¼ Aluminum Diamond Plating weighs 3.67 per square feet. Multiplied by the 300 square feet of coverage shown an additional 1,101 pounds to the Car. This means that even at its “rated” capacity of 5,000 pounds the car was already overloaded to 6,000,likely one of the reasons that the car could never pass a test load of 6,000 pounds since, in fact, it was then actually carrying 7,000 pounds.
More significantly there is nothing in the record which demonstrates that anything was done with the Car’s counterweights to account for this additional weight being added to the Car
The impact this unaccounted for retrofitting had on the accident figured most significantly into the speed the elevator car was traveling at impact.
Although the original weight specification of the empty car is unknown, a rule of thumb is that it should never exceed 1.5 times it rated carrying capacity, meaning that Freight Car Six, with its 5000 pound rated carrying capacity, should not weight more than 7,500 pounds, giving a loaded total of 12,500 pounds. Counterweights are typically installed at 40 pct of the rated carrying capacity (so in this case 2,000 pounds) plus the weight of the Empty Car, for a total counterweight amount of 9,500 pounds.
However, as pointed out, Freight Car Six had an additional thousand pounds of Diamond Plating added on, making it fully loaded weight some 13,500 pounds.
The Atwood calculation indicates that the Acceleration of the Elevator Car with this distribution of fully loaded Car weight and Counterweights would be 5.5 feet per second.
The formula for calculation terminal speed over distance is √ (2 * Acceleration * Height) which in this case is 21.1 fps. This, in turn, translates into the equivalent of a free fall from a height of seven feet.
NEGLIGENCE, MALFEASANCE AND FAULT.
In so far as was at fault for the happening of the accident, to a Reasonable Degree of Engineering and Elevator Quality Inspector certainty it is my opinion that:
1. The Building Owners and their Agents and Contractors Newark Knight et al, Robinson Elevator and MJR Consulting. Schindler Elevator, Principal Building Services and the General Contractor Henegan Construction were (1) aware that freight elevator “6” was inadequate and not suited for the purpose it was being put to at the “Build Out” and that (2) Freight Car 6 should have been replaced or modernized prior to its use in the “Build Out” or that (3) the “Build Out” be done using an exterior elevator or the workers permitted to use the stairs and/or (4) the loading of the elevators better controlled.
the Building Owners and their Agents Newark Knight et al, Robinson Elevator and MJR Consulting. Schindler Elevator and Principal Building Services the General Contractor Henegan Construction, and that the Building Owners and their Agents Newark Knight et al, Robinson Elevator and MJR Consulting. Schindler Elevator and Principal Building Services the General Contractor Henegan Construction were in a position to put a halt to the dangerous and improper use Freight Car 6 described above and their failure to do so was a proximate cause of the accident and injuries suffered by Mr. Bellucia.
2. That freight elevator “6” was regularly being improperly and illegally used as a passenger elevator and overloaded with the knowledge of the Building Owners and their Agents Newark Knight et al, Robinson Elevator and MJR Consulting and by Schindler Elevator and Principal Building Services and the General Contractor Henegan Construction
The Building Owners and their Agents Newark Knight et al, Robinson Elevator and MJR Consulting. Schindler Elevator and Principal Building Services the General Contractor Henegan Construction were in a position to put a halt to the dangerous and improper use of Freight Car 6 as a passenger elevator and their failure to do so was proximate cause of the accident.
3. The constant problems with freight elevator “6” preceding the accident including but not limited to sliding, bouncing, falling into the pit and failing to lift its load was a red flag that should have caused the Building Owners and their Agents Newark Knight et al, Robinson Elevator and MJR Consulting. Schindler Elevator and Principal Building Services and the General Contractor Henegan Construction to put a stop to its use in the build out; the accident like the one suffered by Mr. Bellucia was foreseeable given the constant mechanical problems which plagued Freight Car “6” in the eight weeks preceding the accident.
The Building Owners and their Agents Newark Knight et al, Robinson Elevator and MJR Consulting. Schindler Elevator and Principal Building Services the General Contractor Henegan Construction were in a position to put a stop to the use of Freight Elevator 6 in the build out do so and that their failure to do so was a proximate cause of the accident.
4. The Building Owners and their Agents Newark Knight et al, and Robinson Elevator and MJR Consulting. instead attempted to upgrade Freight Elevator “6” to suit their production needs, an upgrade that was not possible to achieve given the inherent age and limitations of Freight Car “6” and which should not have been undertaken or attempted in part because specifications for even attempting such and upgrade were unavailable. The decision to attempt to upgrade Frieght Car “6” was in itself negligent and a proximate cause of the accident.
5. That shortly before the accident at the direction of Building Owners and their Agents Newark Knight et al, the brakes of Freight Elevator “6” were misadjusted, mis-repaired and/or mis-serviced by Robinson Elevator and MJR Consulting by being over tightened or set of round or contact in relation to their drum, or by the use of improper brake shoes or other materials as part of the attempt to upgrade Freight Car “6” to the point where it could handle 125% of its rated capacity of 5000 pounds. On the day of the accident the brakes either did not “pick” fully from the drum and “glassed from contact with the drum during operation, or the brake shoes weren’t in proper contact with the drum to begin with. As a result when the elevator operator opened the gate and dropped the brakes on the drum the car pulled through the brakes and started to slide. This negligent servicing of the brakes was a proximate cause of the accident.
6. The car over sped once it began to slide, and that rate of over speeding was further accelerated because the counterweights were inadequate because the car was retrofitted with diamond plating. a condition of which Building Owners and their Agents Newark Knight et al, Robinson Elevator and MJR Consulting. Schindler Elevator and Principal Building Services had knowledge of and were in a condition to correct but negligently failed to do so. This negligence was a proximate cause of the accident.
7. The Freight Elevator “6” governor did not trip before the car bottomed out in the pit because it was fouled and gummed from the construction dirt, dust and debris fouling the shaft and the mechanical equipment of Freight Elevator”6″, a condition of which Building Owners and their Agents Newark Knight et al, Robinson Elevator and MJR Consulting along with Schindler Elevator and Principal Building Services had knowledge of but failed to correct. Failure to prevent that fouling of the Governor was negligent and a proximate cause of the accident.
8 Due to the foregoing acts of negligence, the Freight Elevator Six Car slid through the 13 feet of each of the Third, Second and First floors, through the 8’ foot basement and fell 2 more fit into the bottom of the pit. The Car struck the bottom of the at between 21 to 23 feet per second, equivalent to a free fall from at least a height of 8 feet.