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Budzko v. One City Center
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 37
Docket:	Cum-00-312
Argued:	January 10, 2001	
Decided:	February 21, 2001

Panel:WATHEN, C.J., and  CLIFFORD,* RUDMAN, DANA, and ALEXANDER, JJ.

									     		

TERRY BUDZKO et al. v. ONE CITY CENTER ASSOCIATES LIMITED PARTNERSHIP et al.



ALEXANDER, J.

	[¶1] One City Center Associates Limited Partnership, Burton Fisher,
and Dirigo Management Company (collectively OCC) appeal from a judgment
entered in the Superior Court (Cumberland County, Delahanty, J.), following
a jury verdict awarding damages to Terry Budzko on her claim of
negligence.{1}  OCC contends that it was under no duty to remove
accumulating, freezing precipitation from a stair landing located on its
premises as the precipitation fell during a winter storm.  Because the
evidence was sufficient to establish that OCC failed to exercise reasonable
care in keeping its premises reasonably safe, we affirm the judgment.
I. CASE HISTORY
	[¶2]  Terry Budzko sustained an injury on February 27, 1995, when
she slipped and fell on an icy stairway landing of a commercial building
owned by OCC.  UNUM Corporation was a tenant in the OCC building, and
Budzko was a UNUM employee.  The OCC building space was leased by a
variety of business tenants.  Approximately 500 to 1000 people entered and
exited the building on a daily basis.
	[¶3] The record indicates that OCC was responsible for treating snow
and ice, and that neither the tenants nor the tenants' employees were
responsible for snow and ice treatment or removal.  Monthly maintenance
procedures had been implemented at the building concerning the removal
of snow and ice from the premises.  The procedures for February required
that maintenance personnel "monitor weather reports to be prepared for
winter snowfall or ice storms" and "inspect property on a constant basis for
ice build-up on walkways and take whatever measures necessary to keep
them clear."  
	[¶4]  Although the OCC maintenance contractor testified that it was
necessary to remove snow and ice as it came down during a storm, several
witnesses testified that no one had shoveled any of the snow, and that
neither salt nor sand had been spread on the icy, snow-packed surfaces. 
The OCC contractor further testified that an order of priority existed for
treating snow and ice during a winter storm, and that the Monument Square
entrance to the building received first priority.  
	[¶5]  Budzko testified that at approximately 5:30 p.m. on February 27,
she exited the Monument Square doorway, walked down one set of steps on
the side of the building, and then slipped and fell on an icy stairway landing. 
As a consequence of her fall and resulting injuries, Budzko brought suit
alleging negligence against OCC.  
	[¶6]  Prior to trial, OCC filed a motion in limine to exclude evidence
that other people may have slipped or fallen around the building on the
same day, but at different times and different places.  The court never ruled
on the motion.  However, when, during Budzko's opening statement,
counsel described an injury sustained by Donna Morey, who slipped and fell
on the OCC premises earlier on the same day but in a different location,
OCC's counsel objected.  At sidebar, the court denied OCC's motion for a
mistrial but sustained the objection, concluding that Morey's injury was
irrelevant because it occurred in a place different from where Budzko was
injured.  The court gave a curative instruction, and OCC did not object that
the instruction was insufficient to remedy the harm caused by the improper
reference.  At several points during the trial, both parties questioned
witnesses about the circumstances surrounding Morey's injury.  No objection
was raised to any of these inquiries.
	[¶7]  During summation, Budzko's counsel made reference to certain
"missing witnesses" and again referred to Morey's injury.  OCC's counsel
objected and moved for a mistrial on the grounds that the reference to
Morey's injury was irrelevant, and that the reference to missing witnesses
was improper.  The court denied the motion for a mistrial but provided a
curative instruction on the missing witness issue.
	[¶8]  OCC filed a motion for judgment as a matter of law at the close of
trial on the basis that it was under no duty to remove freezing precipitation
as it fell.  The motion was denied, and the jury returned a verdict in favor of
Budzko.  OCC then filed a renewed motion for judgment as a matter of law
and a motion for a new trial, both of which were denied.  This appeal
followed.
II. MOTION FOR JUDGMENT AS A MATTER OF LAW
	[¶9]  We review the denial of a motion for judgment as a matter of law
"to determine if any reasonable view of the evidence and those inferences
that are justifiably drawn from that evidence supports the jury's verdict." 
Larochelle v. Cyr, 1998 ME 52, ¶ 6, 707 A.2d 799, 801 (citation omitted). 
See Saucier v. Allstate Ins. Co., 1999 ME 197, ¶ 18, 742 A.2d 482, 488
(stating that a motion for judgment as a matter of law should not be granted
if "any reasonable view of the evidence could sustain a verdict for the
opposing party pursuant to the substantive law that is an essential element of
the claim").  A party seeking judgment as a matter of law after trial "has the
burden of establishing that the adverse jury verdict was 'clearly and
manifestly wrong.'"  Id. (quoting Maine Energy Recovery Co. v. United Steel
Structures, Inc., 1999 ME 31, ¶ 5, 724 A.2d 1248, 1250).
	[¶10]  A defendant is entitled to judgment as a matter of law on a
negligence claim if that defendant owes no duty to the plaintiff.  See, e.g.,
Trusiani v. Cumberland & York Distribs., Inc., 538 A.2d 258, 261-63 (Me.
1988).  A duty is "an obligation, to which the law will give recognition and
effect, to conform to a particular manner of conduct toward another." 
Quadrino v. Bar Harbor Banking & Trust Co., 588 A.2d 303, 304 (Me. 1991). 
Whether one party owes a duty of care to another presents a question of law
that we review de novo.  See Decker v. New Eng. Pub. Warehouse, Inc., 2000
ME 76, ¶ 7, 749 A.2d 762, 765.  Whether a duty was breached and whether
a defendant's conduct was reasonable under the circumstances are
questions of fact for the jury.  See Lewis v. Knowlton, 1997 ME 12, ¶ 10,
688 A.2d 912, 914. 
	[¶11]  OCC contends that a possessor of land owes no legal duty to
business invitees to remove freezing precipitation as it falls during a winter
storm.  Although we have not addressed this narrow issue directly, we have
concluded that in "slip and fall" negligence cases, a business owner owes a
"positive duty of exercising reasonable care in providing reasonably safe
premises . . . when it knows or should have known of a risk to customers on
its premises."  Currier v. Toys 'R' Us, Inc., 680 A.2d 453, 455-56 (Me.
1996) (vacating trial court's grant of defendant's motion for judgment as a
matter of law and concluding that a business owner is under a duty to
correct a hazardous condition on its premises when the owner has
knowledge of the condition).  
	[¶12]  Similarly, we have concluded that a business owner has a duty
to respond to a foreseeable danger from foreign substances on the floor of its
premises if the owner:  (1) caused the substance to be on the floor; (2) had
actual knowledge of the existence of the foreign substance; (3) was aware of
a recurrent condition that posed a potential risk to invitees from foreign
substances on the floor; or (4) allowed the foreign substance to remain on
the floor for such a length of time that the defendant should have known
about it.  See Dumont v. Shaw's Supermarkets, Inc., 664 A.2d 846, 848-49
(Me. 1995).  In Dumont, we held that a business owner "who is aware of the
existence of a recurrent condition that poses a potential danger to invitees
may not ignore that knowledge and fail reasonably to respond to the
foreseeable danger of the likelihood of a recurrence of the condition."  Id. at
849.
	[¶13]  The reasoning of Currier and Dumont make it evident that a
business owner who anticipates that 500 to 1000 invitees may enter and
leave its premises during a snow or ice storm has a duty to reasonably
respond to a foreseeable danger posed to the invitees by a continuing snow
or ice storm.{2}  That duty is not fulfilled by OCC's argument that it could wait
until after the storm to take any action, regardless of the risk posed to its
invitees during the storm.{3}
	[¶14]  In this case, the jury was instructed that:
[T]he owner of a building or premises has a duty to use
reasonable care to maintain those premises in a reasonably safe
condition.  To recover in a case like this, the plaintiff must prove
by a preponderance of the evidence that there was an
accumulation of snow and/or ice on the premises that was the
proximate cause for her injuries.  She must prove by a
preponderance of the evidence that the snow and ice condition
had been present for a time of sufficient duration prior to her
injury to enable a reasonably prudent person to discover and
remedy it, and thirdly that the defendant knew of the snow
and/or ice condition and did not correct it or did not know of
the snow and/or ice condition but in the exercise of reasonable
care should have known about it and corrected it under the
conditions that you heard about in this case.

The defendant, ladies and gentleman, has a duty to ensure that
its business premises were reasonably safe for customers in light
of the totality of the existing circumstances.  The existing
circumstances include the prevailing weather conditions at the
time of the incident.  A defendant is not required to remove
snow or ice as it falls but is required to take appropriate
corrective action to remove ice and snow within a reasonable
time after the storm has abated.
(Emphasis added).  The italicized portion of this instruction indicates that
OCC may have received more than it was entitled to because the jury was
instructed based on our dictum in Isaacson v. Husson College, 297 A.2d 98
(Me. 1972), which is not the rule in Maine.{4}  Even with that instruction, the
jury found that OCC failed to exercise reasonable care.
	[¶15]  Viewed in the light most favorable to Budzko, the evidence is
sufficient to support the jury's finding that OCC failed to exercise reasonable
care.  Specifically, the evidence and all reasonable inferences drawn
therefrom establish that OCC knew of the weather conditions, that OCC had
maintenance personnel available to treat the icy condition of the premises,
and that OCC knew that 500 to 1000 business invitees would enter and exit
the premises on February 27.  Despite such knowledge, the evidence
supported the jury's implicit findings that OCC failed to treat the ice with
salt or sand, failed to shovel any of the accumulated snow or ice, and failed
to warn its business invitees of the icy condition of the premises.  
	[¶16]  Because a reasonable view of the evidence supports the jury's
verdict, we conclude that OCC has failed to establish that the verdict was
"clearly and manifestly wrong."  Saucier v. Allstate Ins. Co., 1999 ME 197,
¶ 18, 742 A.2d 482, 488.  Business owners have a duty to reasonably
respond to foreseeable dangers and keep premises reasonably safe when
significant numbers of invitees may be anticipated to enter or leave the
premises during a winter storm. 
III. OCC'S EVIDENTIARY CHALLENGES
	[¶17]  OCC also contends that the trial court exceeded the bounds of
its discretion in denying OCC's motions for a mistrial and a new trial on the
ground that Budzko improperly referred to missing witnesses and
improperly elicited evidence of other accidents.  We review a trial court's
refusal to grant a motion for a mistrial for an abuse of discretion, see Walter
v. Wal-Mart Stores, Inc., 2000 ME 63, ¶ 33, 748 A.2d 961, 973, and a
refusal to grant a motion for a new trial for a "clear and manifest abuse of
discretion."  Id. ¶ 34, 748 A.2d at 973 (quoting Gilmore v. Cent. Maine
Power Co., 665 A.2d 666, 670 (Me. 1995)).
	[¶18]  If Budzko's counsel's improper remarks did not influence the
jury, or if the prejudicial effect of the remarks was dissipated by a
subsequent curative instruction, the trial court's denial of a motion for a new
trial will not be disturbed.  See Gilmore, 665 A.2d at 668.  Deferring to the
trial court's broad discretion in such circumstances is appropriate because
the trial court "who heard the remarks in the context of the entire trial is in
the best position to gauge the reaction of the jury to them."  Id. at 669. 
Because the trial court immediately provided curative instructions for the
improper references to missing witnesses, see State v. Brewer, 505 A.2d
774 (Me. 1985), and other accidents, see Moody v. Haymarket Assocs., 1999
ME 17, ¶ 4, 723 A.2d 874, 875, we conclude that the curative instructions
adequately addressed any potential prejudice resulting from the improper
references, and, therefore, that the trial court did not exceed the bounds of
its discretion in denying the motions.      
 	The entry is:
			Judgment affirmed.
             
Attorney for plaintiff: Douglas S. Kaplan, Esq., (orally) Kaplan & Grant P O Box 7474 Portland, ME 04112 Attorneys for defendants: Jonathan W. Brogan, Esq., (orally) John R. Veilleux, Esq. Norman Hanson & DeTroy, LLC P O Box 4600 Portland, ME 04112
FOOTNOTES******************************** {*} Although not available at oral argument, Justice Clifford participated in this opinion. M.R. App. P. 12(a): "A qualified justice may participate in a decision even though not present at oral argument." . Budzko was awarded $20,000 on her negligence claim, and her husband, Richard Budzko, was awarded $3,500 on his loss of consortium claim. {1} . The duty to respond may be less rigorous for an entity that does not reasonably anticipate the comings and goings of significant numbers of invitees while a storm is in progress. We do not here address the nature of any duty to remove snow and ice during a storm in any case where access by no invitees, or very few invitees, may be reasonably anticipated during the storm. {2} . See, e.g., Munsill v. United States, 14 F. Supp. 2d 214, 220-21 (D.R.I. 1998) (noting that the majority of jurisdictions have adopted the "storm in progress" doctrine, pursuant to which "an occupier of business premises 'is afforded a reasonable time after the cessation of the storm or temperature fluctuations . . . to correct the situation'") (quoting Olejniczak v. E.I. Du Pont De Nemours & Co., 998 F. Supp. 274, 280 (W.D.N.Y. 1998)). This "storm in progress" rule appears inconsistent with the duty of reasonable care owed by a business owner reasonably anticipating a significant number of invitees during a Maine winter storm. {3} . In Isaacson, a student (i.e. a business invitee) slipped and fell on a dimly lit, icy walkway on the Husson College campus. See id. at 102. A winter storm had dumped approximately 42 inches of snow on the campus from Monday, February 24 until Wednesday, February 26; plaintiff sustained his injuries on Thursday evening, February 27. See id. at 101- 02. On appeal, we vacated the trial court's grant of Husson's motion for directed verdict and held that the college, as possessor of the land, "owed the student plaintiff whose status was that of a business invitee the positive duty of exercising reasonable care to provide him with walkways which he was invited to use, or which he would be reasonably expected to use, which were reasonably safe for his use." Id. at 103. The Court then went on to note, in dictum, that: We need not determine in the instant case what steps reasonable care would have required the corporate defendant to take while the storm was in progress. This was not the freezing rain or sleetstorm during which, under the general rule, the invitor is not required to remove the freezing precipitation as it falls, but is only duty bound to take appropriate corrective action within a reasonable time after the storm has abated. Id. at 103-04.