Man sues elevator company over mishap in condo; says he hurt leg in fall

A retiree who says he hurt his leg after tumbling from a malfunctioning elevator in his downtown condominium is suing one of the world's largest elevator companies for negligence.

In his unproven statement of claim before Ontario Superior Court, Kenneth Smookler seeks $25,000 in compensation from Schindler Elevator and his Toronto condo corporation for what he alleges was their failure to maintain the device properly.

Schindler, Smookler's claim asserts, failed to recognize that a mishap was all but inevitable given the deteriorating condition of the elevators, and was grossly negligent in allegedly abandoning proper maintenance in favour of increasing profits and "deliberately bidding lower and lower for elevator repair contracts" to undercut its competitors.

"As a result of these practices, Schindler was required either to reduce the number of its staff available for servicing its existing clients or, alternatively, requiring such staff to service an increasing number of its clients each month."

The alleged incident occurred in July last year when Smookler, 87, was on his way down to the condo's swimming pool carrying items including a towel and flotation device when he says the elevator stopped about 25 centimetres above the floor. Smookler says he didn't notice the elevator wasn't level with the floor and "pitched forward" as he stepped out, landing with his entire weight on his surgically replaced knee.

He developed severe pain in his leg and foot due to infection in the joint, and ongoing complications caused by the alleged incident might mean more surgery, he says.

Smookler accuses Schindler of "callous and outrageous behaviour in putting its pursuit of profits ahead of its duty to prevent the endangerment of the people" who use elevators the company services.

In its statement of defence, Schindler denies any wrongdoing. Instead, it blames Smookler for any injuries he sustained, or the condo corporation for not alerting the company if indeed the elevator was faulty.

The Toronto-based company — part of a Swiss multinational — says it fulfilled its servicing-contract obligations by having qualified technicians do regularly scheduled maintenance and inspections. The elevator met safety standards and was in proper working condition at the time, the company says.

If Smookler was hurt as he maintains, Schindler says he was the "author of his own misfortune" in that he "failed to take care for his own safety," was "inattentive" or was carrying items that obscured his vision.

"He moved from a position of safety to a position of danger when he knew, or ought to have known, that it was not safe to do so," the company says in its filings. "(He) knew or ought to have known that his ability to maintain a proper lookout or balance was impaired by reason of illness, fatigue, poor health, medication and/or intoxication."

For its part, Metropolitan Condominium Corporation 590 denies anything happened to Smookler, but says if something did happen and he was hurt, it was either his or Schindler's fault. Among other things, the condo argues the company failed to properly monitor, inspect and maintain the elevator or use "competent" maintenance personnel.

Ontario's elevator-safety regulator, the Technical Standards and Safety Authority, said the property manager only reported the incident last month because she mistakenly believed Schindler had already done so.

In January, an Ontario judge fined Schindler $80,000 for safety violations related to an elevator incident at a hotel in Toronto in 2013. Among other things, investigators found the supporting cables had snapped and the company had done no regular maintenance as required. Schindler blamed a clerical error for its various failures.

A Canadian Press investigation last year revealed widespread problems across the country with elevator reliability. An Ontario politician is trying to shepherd a bill into law that would set standards for getting out-of-service elevators running. The bill passed second reading in the provincial legislature Thursday.

In addition, serious injuries related to elevators have been increasing by eight per cent annually, the provincial regulator has reported.