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Colvin v. A R Cable
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 163
Docket:	And-96-700
Submitted
on Briefs:	May 16, 1997
Decided:	July 21. 1997	

Panel:  WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and
LIPEZ, JJ.



CHARLES COLVIN v. A R CABLE SERVICES-ME, INC., d/b/a CABLEVISION


WATHEN, C.J.


	[¶1]  Defendant A R Cable Services-ME, Inc. appeals from a judgment
entered in the Superior Court (Androscoggin County, Delahanty, J.) on a jury
verdict awarding plaintiff damages in his personal injury action.  Defendant
argues that the court should have ruled as a matter of law that it owed no
duty to plaintiff.  Alternatively, defendant argues that the court should have
granted a new trial because the jury improperly considered insurance
coverage in its deliberations.  Rejecting both arguments, we affirm the
judgment.
	[¶2]  The facts presented at trial may be summarized as follows: 
Plaintiff Charles Colvin was injured on May 5, 1994, when he fell on an
exterior stairway leading to the main entrance of a four-unit apartment
building in Auburn.   Plaintiff was the property manager of the building and
was living there with his family.  The fall occurred at approximately 3:00
p.m. on his return from a grocery store.  As he climbed up the steps carrying
a plastic grocery bag, his left knee struck defendant's utility service box
mounted on the exterior of the building adjacent to the steps.  He fell and
suffered injuries to his shoulder, low back, and legs.  The stairs are
approximately four feet wide and five risers high.  His daughter was climbing
them at the same time on his right side.  
	[¶3]  Defendant installed the box in December 1993.  Plaintiff testified
that he was present when the box was installed, that he told defendant's
installer that the stairway was a bad location for it, and that he suggested
several better locations.  After the fall, he immediately called defendant and
demanded that they move the box to a safer location.  Defendant came and
moved it to a telephone pole. 
	[¶4]  Plaintiff filed a complaint in the Superior Court alleging that
defendant negligently placed the box in an unsafe location, and that plaintiff
suffered injuries as a proximate result of defendant's negligence.  Before the
case was submitted to the jury, defendant moved for a judgment as a matter
of law arguing that no duty was owed to plaintiff.  The court denied the
motion.  During deliberations, the jury sent a note to the court asking
whether plaintiff had medical insurance.  The court responded in writing
directing the jury to consider only information introduced in evidence.  The
jury returned a verdict awarding plaintiff $7,500,.
	[¶5]  Defendant renewed its motion for a judgment as a matter of law
and filed a motion for a new trial.  The court denied both motions and
defendant now appeals.
I. Motion for a Judgment as a Matter of Law
	[¶6] We review the denial of a motion for a judgment as a matter of law
to determine whether "by any reasonable view of the evidence, including the
inferences to be drawn therefrom, taken in the light most favorable to the
non-moving party, the verdict can be sustained."  Williams v. Inverness
Corp., 664 A.2d 1244, 1246 (Me. 1995);  M.R. Civ. P. 50. 
	[¶7]  First, defendant contends that it owed no duty to plaintiff
because it was not the possessor of the premises where the injury occurred.
The existence of a duty of care is a question of law.  Trusiani v. Cumberland
& York Distributors, 538 A.2d 258, 261 (Me. 1988).  We find no support in
the law for defendant's assertion that it owes no duty of care to those who
may be injured by devices that it installs in homes throughout the state.  A
non-possessor who negligently creates a dangerous condition on the land
may be liable for reasonably foreseeable harms.

The reasonable foreseeability of injury to others from one's acts
or from one's failure to act raises a duty in law to proceed in the
exercise of reasonable care.  It is not necessary that the precise
type of injury be foreseen nor the specific person injured.  

Quinn v. Moore, 292 A.2d 846, 850 (Me. 1972).  The defendant in Quinn
was a non-possessor subcontractor whose negligent installation of metal lath
flooring created a dangerous condition resulting in an injury to a
construction worker.   Moore argued that he owed no duty to Quinn after the
subcontract had been completed and when he had no longer had possession
or control of the flooring.  We rejected this argument and noted that
"[n]egligence is gauged by the ability to anticipate."  Id. at 851.  "The
common-law test of duty is the probability or foreseeability of injury to the
plaintiff."  Brewer v. Roosevelt Motor Lodge, 295 A.2d 647, 651 (Me. 1972). 
	[¶8]  Defendant next argues that if it owes any duty, it should not
exceed the duty owed by possessors of land.  In particular, defendant seeks
to apply the rule for known and obvious dangers on the land.
  
A possessor of land is not liable to his invitees for physical harm
caused to them by any activity or condition on the land whose
danger is known or obvious to them, unless the possessor should
anticipate the harm despite such knowledge or obviousness.

RESTATEMENT (SECOND) OF TORTS § 343A(1) (1965).  We have applied
section 343A(1) in previous possessor liability cases.  E.g. Williams v. Boise
Cascade Corp., 507 A.2d 576, 577 (Me. 1986);  Baker v. Mid-Maine Medical
Center, 499 A.2d 464, 467 (Me. 1985);  Isaacson v. Husson College, 297
A.2d 98, 105 (Me. 1972).  We have not applied the rule to non-possessors. 
Because its application in the present case would not alter the result, we
need not decide whether the rule controls the liability of non-possessors.{1}  
	[¶9]  Contrary to defendant's contention, section 343A does not
express a "no duty" rule.  The rule imposes on the possessor of land a duty
to use reasonable care to prevent risks arising from known and obvious
conditions on the land that the possessor should reasonably anticipate
causing harm to others despite such knowledge or obviousness.
  
	There are . . . cases in which the possessor of land can and
should anticipate that the dangerous condition will cause
physical harm to the invitee notwithstanding its known or
obvious danger.  In such cases the possessor is not relieved of
the duty of reasonable care which he owes to the invitee for his
protection. . . . 
	Such reason to expect harm to the visitor from known or
obvious dangers may arise, for example, where the possessor has
reason to expect that the invitee's attention may be distracted,
so that he will not discover what is obvious, or will forget what
he has discovered, or fail to protect himself against it.  Such
reason may also arise where the possessor has reason to expect
that the invitee will proceed to encounter the known or obvious
danger because to a reasonable man in his position the
advantages of doing so would outweigh the apparent risk.

RESTATEMENT (SECOND) OF TORTS § 343A cmt. f (1965).  Even as a
possessor of the land, defendant would have a duty of care under the
circumstances of this case.  The evidence, viewed in the light most favorable
to the plaintiff, does not compel the conclusion that, as a matter of law, a
reasonably prudent person should not have anticipated harm to persons
using the stairway despite the known or obvious danger presented by the
utility services box.  
II. Motion for a new trial
	[¶10]  A trial court's denial of a motion for a mistrial is reviewed for an
abuse of discretion and will be overruled only "when the record discloses
exceptionally prejudicial circumstances."  Williams v. Inverness Corp., 664
A.2d 1244, 1248 (Me. 1995).  We find no merit in defendant's argument
that it was prejudiced by a jury note inquiring about plaintiff's medical
insurance.  It cites Duguay v. Pomerleau, 299 A.2d 914, 916 (Me. 1973) and
M.R. Evid. 411 for the proposition that references to insurance are to be
avoided as prejudicial unless special circumstances require it.  Both the
common law rule and Rule 411, however, are designed to prevent the
prejudice that arises from the introduction of evidence of defendant's
liability insurance.  Duguay, 299 A.2d at 916;  M.R. Evid. 411.  Even if we
ignore the fact that no improper evidence was received in evidence,
defendant's suggestion that it was prejudiced by the jury's mere inquiry
concerning plaintiff's medical insurance is unpersuasive.  The only inference
to be drawn from the note is that the jury may have been contemplating a
lower award of damages in the event that plaintiff's medical bills had been
paid by his insurance.  The court responded appropriately to the inquiry and
did not abuse its discretion by declining to order a new trial. 
	The entry is:
					Judgment affirmed.
                     
Attorneys for plaintiff: Thomas R. Downing, Esq. Stephen Kottler, Esq. Hardy, Wolf & Downing, P.A. P O Box 3065 Lewiston, ME 04243-3605 Attorneys for defendant: Jonathan W. Brogan, Esq. Anne M. Carney, Esq. Norman, Hanson & DeTroy P O Box 4600 Portland, ME 04112-4600
FOOTNOTES******************************** {1} We note, without adopting them, that sections 384 & 385 provide standards for defining the liability of "Persons Creating Artificial Conditions on Land on Behalf of Possessor." RESTATEMENT (SECOND) OF TORTS § 384, 385 (1965).