Know How You Fell?  Maine Law: Proving What Happened

By Briggs & Wholey LLC | Dec 21, 2016

Your child fell.  Your child really fell.  And she’s very badly hurt.  Sometimes the reason for a fall is obvious: our daughter fell is because the landlord is supposed to keep the steps free of ice, but didn’t, and the ice had been there since last night when you asked the landlord to please get rid of the ice, and your daughter tells everyone afterward that she was half way down the steps, holding onto the railing, but it was just too slippery, and she didn’t have any choice because that’s the only way for her to get to the bus stop.  This is Maine, and the landlord put your child at risk.   Now you face big medical bills and a child whose broken leg may never be the same and the child who is going to miss weeks from school and might even end up having to stay back a grade to catch up.  At least you will be able to make the landlord take responsibility for his carelessness.

But sometimes it’s hard to figure out exactly why or how someone fell.  What happens then?  In a Maine case, Addy v. Jenkins, Maine’s Supreme Court put the lid on a case where a construction worker fell off scaffolding because the construction worker couldn’t provide evidence connecting a specific defect in the staging to the cause of his fall.  Not all of the Supreme Court justices agreed with the decision, however.  Justice Warren Silver disagreed, arguing that the Court was straying from previously settled Maine law.  Justice Silver pointed out that earlier Maine cases held that, as long as there was enough evidence to let a jury infer why someone fell and how someone fell based on where they were before they fell, the case could move forward.

In another Maine case, Smith v. Salveson, Maine’s Supreme Court said that a husband whose wife died after falling down the stairs during the night in a property she was unfamiliar with, and who was found by her husband, could not recover for his wife’s wrongful death because no one witnessed her fall, so no one could explain how she fell.  In the Smith case, the Supreme Court again reminded Mainers that in order for a jury to infer how and why an unwitnessed fall occurred, there has to be proof that the injured person came into contact with a specific defect.  In other words, the person bringing the lawsuit has to prove that the fall was caused by the dangerous condition, and not for some other reason, such as simply losing one’s balance.

So what kind of evidence is needed when the person who fell doesn’t know exactly how they fell and why they fell?  To quote the Maine Supreme Court in Thompson v. Frankus: “other reliable evidence.”  What’s that?  Other reliable evidence can be a piece of cracked linoleum on the floor where the person fell, or a witness who saw where the person who fell was just before the fall, and who is willing to testify to the condition of the property at the point where the person fell.  Physical evidence, such as a broken step or a loosened handrail, can be sufficient reliable evidence of the mechanism of the fall.  The alleged mechanism of the fall will pass muster with the court as long as it is simple and easily understood by a jury in context with physical evidence of a defect that can be seen.

The jury, in any Maine negligence lawsuit, will be read Instruction 7-61, which states that the plaintiff must prove that it’s more than 50% likely that the property owner was negligent, and that the property owner’s negligence was a cause of the injury to the person who fell.  Instruction 7-61 (listed in the Maine Jury Instruction Manual written by the well-known Maine jurist, Justice Alexander) requires judges to tell jurors: “Negligence is doing something that an ordinary, careful person would not do, or failing to do something that an ordinary, careful person would do in the same situation.  It is, in other words, the failure to use ordinary care under the circumstances, considering all of the evidence in the case.”  In a case involving a fall on snow or ice, there is an even more specific jury instruction (Justice Alexander’s Instruction 7-64), which instructs jurors that “[t]he owner of a building has a duty to use reasonable care to maintain the premises in reasonably safe condition.”  The jury instruction goes on to say that, if there was “an accumulation of snow and/or ice on the premises that was a proximate cause” of the injuries, and if the “snow and/or ice condition had been present for a time of sufficient duration prior to plaintiff’s injury to an able a reasonably prudent person to discover and remedy,” and/or if the property owner “knew of the snow and/or ice condition and did not correct it,” then the jury should find in favor of the injured person.

Going back to the image of the Maine schoolgirl making her way down steps that the property owner knew had been icy for some time, the injured girl’s family will clearly meet the requirements set out in Justice Alexander’s instructions.  In other cases, however, an experienced Maine personal injury lawyer will have to obtain the required evidence that will allow you to have your day in court.

If you have been seriously injured, through no fault of your own, by a dangerous condition of someone’s property, you may be able to recover money to replace medical bills you have to pay, lost wages and other harms that turn your life upside down.

© Briggs & Wholey 2016

 

 

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