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Kelly v. New West Federal Savings9/20/1996
HASTING, J.
This case demonstrates misuse and abuse of motions in limine which resulted in denial of due process for plaintiffs in a personal injury action. We reverse and remand to the trial court.
FACTS
A. Background :
On January 6, 1989, plaintiffs Deborah Kelly and Beverly Caradine were riding on an elevator located at the Hillcrest Medical Center in Inglewood, California. The elevator allegedly "misleveled," that is, in this case, it stopped some distance above the level of the floor upon which plaintiffs wished to exit. Plaintiffs fell and injured themselves upon leaving the elevator.
Plaintiffs filed suit against New West Federal Savings and American Savings and Loan (collectively New West), successors in ownership of the Hillcrest Medical Center; Auerbach Leasing and Management (Auerbach), the management company responsible for managing the building; and Amtech Reliable Elevator (Amtech), the company that maintained the elevators on the premises of the building (collectively referred to as respondents).
Discovery was undertaken by all parties and quickly the focus became which of the two elevators in the building plaintiffs had been using on the date of the accident. The elevators were located next to each other. One elevator was designed for handicapped access and was larger than the other elevator; as a result the parties and witnesses distinguished between the two by using the terms "large" and "small" elevator.
Plaintiff Kelly had worked for five years in the building and gave testimony on two separate occasions relative to the incident. At her first deposition she testified as follows: "Q. Now, for the incident where you fell, was that also for the smaller elevator, or was that the handicapped elevator. A. The smaller elevator." At the second session of her deposition she testified as follows: "Q. Okay. And we're talking about prior incidences with the elevator, and I just wanted to clarify that your incident occurred in the small elevator; isn't that true? A. Yes. I was trying to just to visualize the larger one on the right, which I believe-- Q. As you're facing it? A. Yes, as I'm facing both elevator doors, and it was on our right. The larger one is on the left. Q. Okay. . . . Q. Is it your testimony, then, that your prior experiences with the elevator misleveling occurred in the same elevator that you had your falling incident in? A. To my recollection, it appears that they both always had problems, doors sticking, the slight little maybe one inch going a little bit past the floors for instances, which I just described, but they both had problems, and I just have no idea and no way of remembering which one did which at any given time." Later, she stated: "Q. And your incident involved the small elevator; is that correct? A. Correct."
Plaintiff Caradine testified at her deposition that she was unable to recall which elevator was involved in the incident.
The case was ordered to arbitration on May 19, 1992. Arbitration was originally scheduled for late in September but was continued to October 21, 1992.
On June 12, 1992, the deposition of David Crumley, an employee of Amtech, was taken. At that deposition plaintiffs' counsel learned that Amtech had gone to the building on the date of the accident to work on the large elevator, which was misleveling. Amtech also returned to the building seven days later to do major repairs on the large elevator. At this deposition plaintiffs' counsel became concerned that the accident may have occurred on the large elevator and he so advised counsel for respondents.
On September 25, 1992, plaintiffs' counsel wrote a
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