Easy elevator fix was avoided as kids died

It was lunchtime when 2 1/2-year-old Fletcher Hartz opened the door to the elevator at his grandparents' home in Little Rock, Arkansas.

His mother, Nicole Hartz, stood a few feet away in the kitchen making peanut butter and jelly sandwiches. She didn't see him walk into the hallway and pull open the elevator door, which looked like an ordinary closet door. But she heard him cry.

She thought Fletcher, a curious little boy with thick brown hair, was upset because he couldn't reach a light switch. She went to check on him and found Fletcher trapped behind the door to the elevator, which her in-laws had installed a few years earlier to accommodate their own elderly parents at the two-story home.

Nicole yanked on the door. It was locked, automatically secured by a safety device after being closed. But she could pull it open a crack. She could see Fletcher was caught in the narrow gap behind the outer door and just in front of an accordion door that closed off the elevator car, a no man's land where the floor ended and the edge of the elevator car began. The space was only a few inches wide, just enough for his tiny body.

She didn't panic. He wasn't hurt. It's going to be OK, she recalled telling him that day in February 2017.

But she didn't know what many in the elevator industry had known for more than 70 years: that children caught between the doors had been killed and injured before, crushed by moving elevators when their tiny bodies collided with the door frame above or fell into the elevator shaft below - a danger allowed to exist all these years by companies and regulators despite a simple solution, according to interviews with 28 officials, parents and regulators, plus a review of hundreds of documents from courts, companies and government agencies.

Corporate memos going back to at least 1943 highlighted the hazard. Lawsuits filed on behalf of dead and injured children since 2001 further spelled out the risk. In 2005, several elevator experts tried to change the nation's elevator safety code to shrink the door gap - and were rejected. After more accidents, the elevator code finally changed in 2017, but it applied only to new installations. Nothing was done to fix hundreds of thousands of existing residential elevators, despite a problem that could be solved with a $100 space guard, according to elevator experts.

“It's a hazard with an urgency that's second to none,” said Bob Shepherd, executive director of the National Association of Elevator Safety Authorities, which certifies elevator safety inspectors.

But the Consumer Product Safety Commission - the federal agency responsible for regulating safety in 15,000 consumer products, including residential elevators - has done little to address the problem, despite knowing about child fatalities since 1981 and having studied the issue closely since 2013. The agency's inaction highlights how a lack of urgency by regulators and resistance from companies can combine to stop the CPSC from warning the public or demanding a recall, even when a hazard poses a particular threat to children.

“What is the safety agency there for if not this?” said a frustrated senior agency official who spoke on the condition of anonymity to discuss internal deliberations.

CPSC spokesman Joe Martyak said the agency is working “to come up with a solution to the complex issues involved.”

Industry officials have argued to the CPSC that the problem is complicated and, in some cases, overblown in scale and not their responsibility, according to interviews. It was an argument they made during two recent private meetings with the CPSC as the agency faces renewed pressure from victims' families to take action.

The elevator industry's plan for dealing with regulators was laid out in an email accidentally sent to The Washington Post. Alesa McArthur, executive director of the National Association of Elevator Contractors, wrote that industry representatives had agreed that during a meeting with the CPSC last month they would argue “they did not think a recall would be a good idea or even all that useful” because of the “difficulty in reaching” elevator owners and because the industry believes the size of the door gap was “appropriate.” McArthur did not respond to additional requests for comment.

Another industry official who attended the private talks with the CPSC cautioned that the agency needed to appropriately evaluate the risks.

“There are many risks in the home,” Mark Townsend, a director of the residential-elevator trade group Accessibility Equipment Manufacturers, said in an interview. “You don't stick your knife into your toaster to get the toast out, and you don't play around with an elevator as a little kid.”

So far, the industry's arguments against a recall have prevailed, over the objections of some in the agency's leadership.

“No parent should have to experience this,” said Elliot Kaye, a CPSC commissioner who wants the agency to require the elevator industry to fix the problem. “There are just some things we should be beyond as a society.”

In Little Rock, as Nicole struggled to free Fletcher, she phoned her mother-in-law for help unlocking the door, according to police reports and interviews. A friend of hers - whose children were playing at the house - dialed 911. Fletcher kept crying. Nicole thought the door would open if she pushed the elevator call button. But in the commotion no one noticed the elevator had automatically moved from the main floor to the second. The elevator was above Fletcher now. He was alone on the other side of the door. And, with the push of the button, the elevator was coming down.

Nicole heard her son scream.

Then his screams stopped.

“It was particularly cruel to be able to hear him - literally hear his screams across the door,” she said recently.

“I still hear it. It's something I will never forget.”

When Nicole later learned about what caused Fletcher's death, it reminded her of her days as a law clerk for an Arkansas appellate judge, back before she had children, when she would hear about cases that seemed unimaginable.

“There was just so much documentation,” she said. The companies - such as ThyssenKrupp Access, which made the elevator at her in-laws' home - “knew this was a problem.”

She discovered that what happened to Fletcher had occurred before - one tragedy after another, every few years, each time a new family discovering a new piece of the problem, shocked by what they uncovered and promising that this time it would never happen again.

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An estimated 300,000 to 500,000 U.S. homes and other buildings have residential elevators, which can cost as little as $15,000, according to industry officials. Homeowners who are disabled or getting older buy them. They also are a popular feature in multistory townhomes and beach houses. Some older apartment complexes still have them.

These elevators - with an outer swing door and an interior accordion or gate door - are different than their popular commercial cousins, which have sliding doors.

But it's the gap between a residential elevator's two doors that alarms elevator experts. It's too small for adults. But most children can fit perfectly.

Elevator entrapments are relatively rare but uniquely harrowing.

At least eight children have been killed and two more seriously injured in elevator entrapments since 1981, according to a CPSC database and a Post search of news reports and lawsuits. But the true number of accidents is unknown. Elevator accident records are spotty. A different analysis by the CPSC using the agency's injury surveillance system found 131 cases of residential-elevator door accidents, many involving children with hand injuries.

Some elevator experts suspect the toll is significantly higher. For example, the Farmington, Connecticut-based Otis Elevator Co., the world's largest elevator company, discovered that its swing-door elevators, mostly installed in apartment buildings, had killed or injured 34 children - almost all in entrapments - just in New Jersey and southern New York from 1983 to 1993, according to court records and interviews. Experts say those elevators' design posed the same risks as at-home elevators.

The decades-old trail of paperwork warning about elevator entrapments first came to light in 2001 with a boy's death in an Otis elevator in Bethel, Maine.

The Smiths of Bel Air, Maryland, were on the last day of their summer vacation and headed down to breakfast at an inn when they realized they'd forgotten the room key.

Jeff Smith, the father, headed back up to their room to get it.

Tucker Smith, 8, decided to take the elevator. Tucker pushed the call button and opened the swinging door. It closed behind him. But in the instant before Tucker could open the elevator gate, a maid on the second floor pushed the call button. The doors locked. Tucker was trapped - his body partially on and off the elevator. The elevator shuddered to the second floor, forcing Tucker into a space with too-little room, where he suffered severe head trauma, according to news reports and interviews.

“When Jeff opened the door, he let out a scream that witnesses described as the howl of a wild animal,” Terry Garmey, an attorney in Portland, Maine, who was hired by the Smiths, recalled during a speech years later.

Jeff, an engineer and commercial pilot, still struggles to talk about he saw.

“My wife and I are both engineers, and so we know you've got to ask 'why' five times,” he said in an interview. “And when we found out the why, we were shocked. And we were like, well, this is not going to happen again.”

The Otis elevator installed at the inn - like in-home elevators - had an exterior door that swung open to reveal the elevator car's door, usually an accordion partition or an expandable scissor gate.

And Otis had known about the danger for decades, according to court records and documents.

In September 1943, Otis sent out an internal memo warning about the hazards posed by “the space between the (swing) door and the car gate when the car was at the landing,” according to a copy that was part of the Smiths' lawsuit against Otis. The memo - which also referred to an even earlier 1933 memo warning of the same danger - reminded Otis workers about the solution: “Space shields” that could be installed between the two elevator doors “to prevent persons from standing in the space.” The bulky devices attach to the inside of an elevator's swing door and fill the additional space, like a foam insert in a box.

But thousands of Otis elevators were left unprotected, according to court records and interviews.

The Smiths settled a lawsuit against Otis in 2003 for $3 million and secured a promise from the company that it would fix its elevators and warn others.

Otis sent safety brochures and warning letters across the industry. Otis's director of code and standards, Lou Bialy, published an article in Elevator World - the industry's trade publication - detailing how the problem was not unique to Otis.

“The fact that a child can still die as a result of a hazard that has been known within the industry for at least 70 years is cause for the entire elevator industry to address this issue collectively with a heightened sense of urgency,” Bialy wrote in May 2003.

He followed up with a similar article in 2006.

Otis also paid to install space guards on all of its elevators that posed an entrapment risk.

“It is our sincere hope that the industry will continue to address this very serious issue on equipment as needed, in order to help prevent future tragedies,” Otis said in a statement to The Post.

Jeff Smith said he thought the danger ended with Otis's efforts. He had no idea that children were still getting killed and injured, until he was contacted by a Post reporter.

“That hurts,” he said. “I can't believe the other companies in the industry didn't take it upon themselves to fix this thing. They have no excuse.”

- - -

Four is the critical number.

Building codes often limit the space between railings for balconies, pool fences and stairways to four inches. That's because the heads and chests of most children are too big to squeeze through a four-inch space.

But when Tucker Smith died in 2001, the nation's residential elevator safety code allowed for up to five inches between the two doors. That created the risk of children fitting between the elevators' doors.

The five-inch gap was codified by the American Society of Mechanical Engineers (ASME), an industry group that sets voluntary safety standards for cranes, elevators and escalators, among other products.

The ASME's five-inch rule for residential elevators actually resulted in an even bigger gap with the introduction of accordion-style elevator doors in the early 1990s. Accordion doors have peaks and valleys, which the five-inch rule did not take into account. So the true gap could be even larger, according to elevator experts.

Pressure to change the code grew after an 11-year-old boy died in a 2003 elevator entrapment in Mass City, Michigan.

A five-inch standard “is not sufficient to prevent a small child from being entrapped in between,” George Kappenhagen, an elevator engineer in Pennsylvania, wrote to an ASME committee, according to court records. He was one of several elevator engineers who pushed the ASME in 2005 to shrink the door gap.

But the ASME committee rejected the suggestions. The attitude was that it had always been done this way, recalled Richard Gregory, an elevator consultant hired as an expert for plaintiffs and an ASME committee member.

The ASME declined to comment for this story.

Gregory later urged the group to reconsider, according to an email filed in court documents.

“It's easy, it would save lives,” Gregory wrote, “so it should be done.”

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Then, as the industry fended off fixes, it happened again.

On Christmas Eve 2010, Jacob Helvey, 3, was playing with his toy cars on the main level of his family's home outside Atlanta as his mother did laundry upstairs.

Brandi and Mike Helvey had built the house themselves - and baby-proofed it with outlet covers and stair gates to protect their only child.

“We were the most overprotective parents,” Brandi said.

Mike, a homebuilder, wanted the elevator for his mother, who lived with them, and to allow him and his wife to stay in the house as they got older. He selected the Destiny residential elevator, made by National Wheel-O-Vator, a company acquired in 2008 by ThyssenKrupp Access, a division of the German conglomerate.

While putting clothes in the dryer, Brandi heard Jacob say he wanted to come be with her. Wait just a minute, she recalled telling him. Then she heard a noise. She didn't know what it was. Investigators believe it was Jacob pushing the elevator call button, opening the swing door and closing it behind him but failing to open the elevator car's accordion door, according to court records. Jacob had never ridden the elevator alone.

Brandi pushed the elevator button on the second floor. She heard the elevator rising toward her. At the same time, she heard Jacob crying.

“Then everything went silent,” Brandi recalled.

No crying. The elevator stopped.

She ran down the stairs. She grabbed the elevator door. It was locked. She ripped the door open. She saw Jacob. He was pinned by the elevator at his chest, his head resting on the floor and the rest of his body hidden below, according to a police report.

Incoherent with panic, she called 911. A police officer arrived first, saw Jacob struggling to breathe and laid on the floor next to the boy, giving him rescue breaths, according to a police report. A neighbor used a wood plank to try prying the elevator up. Firefighters used the pneumatic “Jaws of Life” to free him.

Jacob is 11 now.

“He's still not able to walk or talk,” Mike said recently. “He's conscious. He understands. But he's basically locked in.”

“He's making small strides,” Brandi said. “We're proud of him.”

The Helveys settled their lawsuit against ThyssenKrupp Access for an undisclosed amount in early 2013.

But like the Smith family, the Helveys wanted to prevent other families from going through what they did. So their attorneys called and sent letters to the CPSC asking the agency to warn the public about elevator entrapments and to require companies to retrofit older elevators.

The family's attorneys and an engineer that same year visited the agency's headquarters in Bethesda, Maryland, to make their case to the compliance staff.

“We left the room that day in pretty good spirits,” Andy Cash, one of the attorneys, recalled.

But nothing happened, the attorneys said.

At the same time, the CPSC was in talks with ThyssenKrupp over how to fix the problem that caused Jacob Helvey's injury, according to letters contained in court records.

ThyssenKrupp - which shut down its U.S. residential elevator operations shortly after Jacob Helvey was injured - did not respond to multiple requests for comment.

The company acknowledged to the CPSC that the door gap presented a hazard to children but said it wasn't the company's fault, according to a confidential report later made public in litigation.

“Manufacturers, such as ThyssenKrupp Access, do not have control over the installation of their products once sold to distributors,” the company wrote to the agency in May 2013.

ThyssenKrupp Access later agreed to send letters to its dealers to tell them about the danger and to offer to pay 25% of the estimated $75 cost for a space guard, according to a July 2013 letter. Dealers would also be given letters to send to elevator customers.

The company told the CPSC that “an essential element of our plan is that all communications emphasize that it is the failure to properly install the elevators, not any type of product defect that creates the risk.”

The CPSC agreed. But ThyssenKrupp's letter to dealers didn't contain the stark wording that Otis used years earlier.

“If small children are present in the home, help the home owner take steps to reduce or eliminate the spacing between the two doors,” the ThyssenKrupp letter to dealers said in part.

The letter also placed responsibility for fixing the elevators on customers, assuming dealers actually told them about the problem.

“It was watered down to the point that no one would pay attention to it,” said Dave Krugler, an attorney for the Helveys.

It later emerged in litigation that ThyssenKrupp mailed notices to hundreds of dealers, asking them to respond with how many customers were notified.

The response rate was zero, according to court records. ThyssenKrupp received no reports of customers being warned about the entrapment hazard.

Among the owners of a ThyssenKrupp Access elevator who said they never received a warning letter were Fletcher Hartz's grandparents.

- - -

The Helveys didn't give up.

Mike Helvey said he was motivated by the thought that almost every residential elevator was at risk.

“This event has already started in thousands of houses. The timing of the conclusion only depends on the conditions,” he said. “It was going to happen again.”

The CPSC can be petitioned to look at safety hazards. So the Helveys' attorneys filed a petition in November 2014 asking the agency to do what the ASME hadn't: pass the four-inch door rule. It also asked for a recall of elevators that did not meet this standard.

Then, a month later, a 5-year-old girl had her pelvis crushed in an elevator entrapment at a vacation home in Hermosa Beach, California, according to CPSC records.

The ASME voted in 2016 to change its elevator code to limit the door gap to four inches. But the new standard, which would take effect in May 2017, was not retroactive. It did not affect the hundreds of thousands of existing home elevators, including the one that killed Fletcher Hartz.

In March 2017, just six weeks after Fletcher died, the CPSC's commissioners prepared to vote on the Helveys' long-delayed 2014 petition. Agency staff members recommended they reject the petition, despite acknowledging that “a potential entrapment hazard exists for children.” But, staff wrote in a briefing paper, the problem had been addressed by the ASME with its adoption of the four-inch standard for new elevators.

In a footnote, staff said it didn't consider the part of the petition that asked to fix existing elevators. Agency rules barred using petitions for product recalls.

The failure to consider a recall was a mistake, according to three senior agency officials. Staff members were focused on the voluntary standard - and the commissioners followed their lead.

“We thought the issue was over at that point,” said Kaye, one of the three agency commissioners who considered the 2017 petition and is still serving.

The issue “just drifted away,” said another agency official, who is not authorized to speak with the media.

The commission denied the petition 4 to 1. The lone dissenter, Commissioner Robert Adler, said he wanted to wait for more information about the effect of the ASME's code change.

Earlier this year, the Helveys made their case to the CPSC again.

This time, they were joined by the Hartz family, who had settled their lawsuit against ThyssenKrupp Access in March.

In early April, the two families, along with their legal team, gathered in a hotel lobby down the street from the agency's headquarters. They were about to visit each of the CPSC commissioners - one by one - to tell their story.

They were armed again with engineering numbers and diagrams, along with contact information for the major players in the residential elevator industry.

“We did all of the homework for them and served it up on a platter,” said Dennis Brickman, an engineer who has studied entrapments, consulted on court cases and joined the families on the visit.

They also tried something new.

Nicole and Ben Hartz had a photo album to show the commissioners, so they could see Fletcher.

Brandi and Mike Helvey brought several pairs of the special orthotic shoes that Jacob wears to support his legs. They gave one to each of the four commissioners they met with. Chairwoman Ann Marie Buerkle's office said she was out sick that day. Her staff members met with the families instead.

“We left feeling pretty good,” recalled Andy Cash, one of the attorneys. “But we also left feeling pretty good six years ago.”

- - -

Reactions from the commissioners varied.

Elliot Kaye, a Democrat, issued a statement calling for the residential-elevator industry to warn elevator owners and to offer free installation of space guards.

Adler, also a Democrat, said in an interview he supported similar action.

“These elevators have got to be fixed,” he said.

Peter Feldman, a Republican, wrote a memo to staff asking for more information about potential action against ThyssenKrupp Access.

And Dana Baiocco, another Republican, said she was still waiting to learn more about what the agency is doing.

All four commissioners were left out of the recent talks with the residential-elevator industry.

The lead in those talks was taken by the agency's staff members and Buerkle, the Republican chairwoman who announced she will step down from the commission in October.

A few weeks ago, the CPSC's compliance office sent an email to the industry inviting the companies to join a conference call to “explore options for notifying the public regarding the hazard associated with spacing in excess of four inches” and potentially retrofitting older elevators, according to a copy provided to The Post.

On May 30, CPSC officials and about two dozen industry representatives joined in the conference call, according to John Koshak, an elevator consultant in Memphis, who is considered an authority on residential elevator safety and was among the invitees.

The call began with a top CPSC compliance official saying that Buerkle wanted the industry to warn the public, said Koshak, whose descriptions matched details of the call provided by an agency official.

“We want the same thing,” industry officials responded, according to Koshak.

“But,” Koshak said, “then we heard the same old thing about how it's too hard.”

The CPSC official suggested the elevator companies send warning notices to elevator owners, Koshak recalled. But the manufacturers said they didn't know who the owners were. The installers and dealers do, they said - and they don't have good records of their customers.

A follow-up meeting was held in late June at CPSC's headquarters. Koshak was not invited this time. Shepherd, of the National Association of Elevator Safety Authorities, said he declined his invitation because the meeting included elevator manufacturers but not the people who provide safety oversight.

“It's never going to work,” Shepherd said.

The CPSC and Buerkle declined to talk about the meetings, saying it was a compliance matter.

Buerkle “is taking this very seriously,” said agency spokesman Joe Martyak.

No one seemed to know what will happen. Or when.

But the families are watching, fearful of what comes next.

“It happened to us. It happened to them,” Mike Helvey said. “And it will happen again.”