Plaintiffs appeal from a dismissal by summary judgment of their suit, arising out of a February 9, 1974 accident in which the plaintiff-wife was injured when exiting from an elevator, installed and maintained by the Otis Elevator Company, and located in Touro Infirmary.
Rachel Laufer, a 78-year old woman, and her sister were passengers in an ascending elevator at Touro. Because of a malfunction, the elevator jerked while ascending and stopped between the second and fourth floors. After calls for assistance had been made by the occupants, the elevator, in a jerking motion, continued to ascend, stopping at the fourth floor.
Plaintiffs allege that while Mrs. Laufer attempted to exit the elevator, she "fell from the elevator when it failed to stop level with the floor and jerked". Plaintiffs' petition further alleges that Touro Infirmary "retained control and supervision"
According to plaintiff's deposition, the doors opened wide and "very nicely", and the elevator stopped level with the fourth floor exit. An unknown gentleman was the first to exit the elevator and was followed by plaintiff. Plaintiff stated that she then stepped from the elevator to the fourth floor and "slipped", causing her to fall and sustain injuries. Mrs. Laufer did not remember whether she began sliding before or after she had exited the elevator and was unable to explain the cause of her fall. Based on plaintiff's deposition, motions for summary judgment were filed by defendants and granted by the trial judge.
It is plaintiffs' position on appeal that a countervailing affidavit of Mrs. Laufer's sister, also a passenger in the elevator, supports the allegation in plaintiffs' petition that the elevator failed to stop level with the floor and the malfunctioning elevator was the cause of plaintiff's fall and injury. Plaintiffs point out that the countervailing affidavit states that when plaintiff stepped from the elevator, "the elevator was up slightly and she started to fall from the elevator". Plaintiffs further point out that the affidavit states that when the affiant exited the elevator, she noticed "that the elevator was not level with the floor, but was above the floor somewhat". Plaintiffs claim, therefore, that based on the affidavit, a genuine issue of material fact exists, i. e., whether the elevator stopped level with the floor or above the floor, and summary judgment was not properly granted. We agree.
It is well settled in our jurisprudence that a motion for summary judgment is not a substitute for trial. Further, all doubt concerning a dispute as to a material issue of fact must be resolved against granting the motion for summary judgment and in favor of trial on the merits. Odom v. Hooper, 273 So.2d 510 (La.1973). A mere belief that a litigant is unlikely to prevail upon the merits is not a sufficient basis to warrant the rendition of a summary judgment and thus deprive the litigant of a trial. Banes v. Prinz, 185 So.2d 50 (La.App. 4th Cir. 1966).
Based on the countervailing affidavit, we conclude that a genuine issue of material fact exists
ANNULLED, SET ASIDE AND REMANDED.