Bennett v. L.P. Murray & Sons, Inc.

• Court: Superior Court of Maine
• Decided: April 1, 2010
• Docket: CUMcv-09-520
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. DOCKET NO. CV-09-52Q j r /,.~ --1I ,-Ii " '..J,\; C C\ ("Ii' Lj ;,.1 _'!"', /

MARCELA BENNETT, Personal Representative of the ESTATE OF WAINO RAY, "- ", Plaintiff ORDER v.

L.P. MURRAY & SONS, INC.; MAINE LIFE CARE RETIREMENT COMMUNITY d/b/a! PIPER SHORES, and LIFE CARE SERVICES LLC.

Defendants.

DECISION AND ORDER

This matter comes before the court on a motion to dismiss by Defendant L.P.

Murray & Sons, Inc. in accordance with M. R. Civ. P. 12(b)(6).

FACTUAL BACKGROUND

This lawsuit, brought by the personal representative of decedent Waino Ray

("Plaintiff'), arises from a slip and fall that occurred on February 2, 2008 at a retirement

community located in Scarborough, Maine. The retirement community is owned by

Defendant Maine Life Care Retirement Community d/b/a! Piper Shores and managed by

Defendant Life Care Services, LLC (collectively referred to as "Piper Shores"). At all

material times Ray was a resident at Piper Shores. Defendant L.P. Murray & Sons, Inc.

("Murray") is a business engaged in sanding and snow removal. Murray contracted with

Piper Shores to provide the retirement community's sanding and snow removal.

The facts and allegations in the complaint state the following: On the evening of February l, 2008, Murray sanded Piper Shores walkways, but

did not sand again on the morning of February 2, 2008, despite being aware that freezing

rain and snow would make the area icy and slippery for the residents of Piper Shores. At

approximately 9:00 am Ray fell on an unsanded icy walkway outside the entrance to the

main building and struck his head. Ray was aided by friends and employees of Piper

Shores, but refused transport to the hospital. After resting in the main reception Ray

returned to his apartment and was subsequently witnessed to have an altered mental state.

Emergency services were then requested to transport him to the hospital. At the hospital

Ray was unresponsive and diagnosed with a subdural hematoma with midline shift that

was fatal without surgical options. Ray died on February 4, 2008 from his head injury.

Plaintiff has sued the Defendants for negligence and wrongful death. Plaintiff

alleges that by failing to properly sand Piper Shores Defendant Murray breached its duty

to protect the residents from falling on ice or snow and to maintain the premises in a safe

and reasonable condition, thus causing Ray's injuries. Plaintiff also alleges that

Defendant Piper Shores was negligent as it failed to ensure that the walkways were

properly sanded prior to the time they would be used by the elderly residents of Piper

Shores. The Plaintiff has also brought a wrongful death claim based on the Defendants

alleged negligence. , Murray does not dispute that Plaintiff is entitled to bring a claim for negligence

against Piper Shores. However, Murray argues that since it contracted its services to

Piper Shores only, it did not owe a duty of care to the Plaintiff. Therefore, Murray

contends, the Plaintiff has no basis for a negligence claim as to Murray.

2 PROCEDURAL HISTORY

On or about September 21, 2009, the Plaintiff filed a complaint for negligence

and wrongful death. After being served, Defendant Piper Shores filed an answer on

October 28, 2009, and Defendant Murray filed an answer on November 3,2009. On or

about November 30, 2009, Murray filed a motion to dismiss with an incorporated

memorandum of law. On December 2, 2009, the Plaintiff filed an opposition to the

motion to dismiss. On December 9, 2009, Murray filed a reply to Plaintiffs opposition. l

DISCUSSION

I. Standard of Review.

"A motion to dismiss "tests the legal sufficiency of the complaint." Livonia v.

Town ofRome, 1998 ME 39, ~ 5, 707 A.2d 83, 85. In determining whether a motion to

dismiss should be granted, the court considers "the allegations in the complaint in relatio

to any cause of action that may reasonably be inferred from the complaint." Saunders v.

Tisher, 2006 ME 94, ~ 8, 902 A.2d 830, 832. The facts alleged are treated as admitted

and are viewed "in the light most favorable to the plaintiff." Jd The court should

. dismiss a claim only "w,hen it appears beyond a doubt that the plaintiff is not entitled to

relief under any set of facts that he [or she] might prove in support of his [or her] claim."

Jd (quoting Johanson v. Dunnington, 2001 ME 169, ~ 5,785 A.2d 1244, 1246).

I Although not pertinent to the pending motion before the court, subsequent to the motion to dismiss filings, Defendant Piper Shores filed a cross claim against Defendant Murray for contribution, indemnity, and negligence. Defendant Murray answered the cross-claims on January 19,2010.

3 II. Negligence

Murray has moved to dismiss, arguing that the Plaintiff has failed to plead facts

that could establish that Murray owed a duty to the Plaintiff, thus the negligence claim

cannot stand.

To sustain a claim for negligence "a plaintiff must establish a prima facie case

showing duty, breach, causation, and damages." Alexander v. Mitchell, 2007 ME 108, 'il

14,930 A.2d 1016, 1020; see also Dunham v. HTH Corp., 2005 ME 53, 'il8, 870 A.2d

577, 579. A party has a duty of care when he or she "is under an obligation for the

benefit ofa particular plaintiff." Quadrino v. Bar Harbor Banking & Trust Co., 588 A.2d

303,304 (Me. 1991). Whether a duty of care exists is a legal question. Pelletier v. Fort

Kent GolfClub, 662 A.2d 220, 222 (Me. 1995). "A defendant is entitled to judgment as a

matter oflaw on a negligence claim if that defendant owes no duty to the plaintiff."

Budzko v. One City Ctr. Assocs. Ltd Partn., 2001 ME 37, 'il1O, 767 A.2d 310,313.

The court must now determine whether the Plaintiff has adequately plead facts

that Murray owed a duty of care to Ray and the other residents of Piper Shores. Saunders

v. Tisher, 2006 ME 94, 'il 8, 902 A.2d 830, 832 (noting that when ruling on a motion to

dismiss a court must determine whether "any cause ofaction [] may reasonably be

inferred from the complaint") (emphasis added). Murray did not owe Ray a duty as a

possessor of land. See Alexander v. Mitchell, 2007 ME 108, 'il25, 930 A. 2d 1016, 1023

(citing Denman, 1998 ME 12, 'il'il5, 7,704 A.2d at 413-14). It is not disputed that Murray

did not own the walkway in question. Murray's only relation to the property was through

the contract with Piper Shores to provide its snow removal and sanding. Murray did not

occupy or manifest an intent to control the property simply by agreeing to these contract

4 serVIces. See id? Therefore, the court finds, as a matter of law, that Murray did not owe

a duty to Ray under a premises liability theory.

However, despite being unable to sustain a negligence claim on the basis of

premises liability, the court concludes that, when viewing the facts in a light most

favorable to the Plaintiff as required at this stage in the proceedings, the Plaintiff has

adequately plead a claim that Ray was an intended beneficiary of the contract between

Piper Shores and Murray.

The Law Court has stated that for a plaintiff to prevail on an intended beneficiary

theory he or she must show that the property owner intended that he or she receive an

enforceable benefit under the contract. Denman v. Peoples Heritage Bank, Inc., 1998

ME 12, ~ 9, 704 A.2d 411, 414-15. "It is not enough that [the plaintiff] benefited or

could have benefited from the performance of the contract. The intent must be clear and

definite, whether it is expressed in the contract itself or in the circumstances surrounding

its execution." Id. (internal citations and quotations omitted).

At this stage in the proceedings, notably without having the benefit of the contract

between Piper Shores and Murray to examine in accordance with M.R. Civ. P. 12(b)(6),3

the court cannot say as a matter of law that the Plaintiff as a resident of the retirement

community was not an intended beneficiary of the contract between Piper Shores and

2 For example, in Alexander, the Law Court cited to Denman in its holding that the defendant plowing contractor did not owe a duty to the plaintiff simply because he was under a contract to clear the road, nor was there "a duty based on a failure to affirmatively act because [the plowing contractor] did not create the dangerous situation ... ; rather the danger was created by the natural accumulation of ice and snow." Alexander, 2007 ME 108, n.13, 930 A. 2d at 1024 (citing Denman, 1998 ME 12, ~~ 5, 7,704 A.2d at413-14). 3 M.R. Civ. P. 12(b) states that if, on a motion to dismiss, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."

5 Murray. When viewing the allegations in the complaint4 the court concludes that the

Plaintiff has adequately plead a negligence cause of action based on an intended

beneficiary theory. See Saunders v. Tisher, 2006 ME 94, ~ 8, 902 A.2d 830, 832. More

evidence is needed to determine whether the contract between the defendants, or

circumstances surrounding its execution, indicate a clear intention to create in the

Plaintiff enforceable rights.

The court need not address Murray's motion to dismiss in relation to the wrongful

death claim as that claim is contingent upon a finding of negligence. See 18-A M.R.S.A.

§ 2-804.

CONCLUSION

As the standard for a motion to dismiss mandates that all facts must be viewed in

a light most favorable to the Plaintiff, the court concludes that the Plaintiff has adequately

plead a negligence cause of action as to Defendant Murray. As such, Murray's motion to

dismiss is DENIED.

4 The court is able to infer a negligence cause of action from the complaint based on the following statements: • ~ 6: Piper Shores "had a contract with Defendant L.P. Murray to provide services including sanding and salting the walkways around the buildings of the Piper Shores facility used by the elderly residents to prevent the walkways from becoming slippery from ice and snow." • ~ 11: "In accordance with its contract for sanding and salting, Defendant L.P. Murray provided sanding services during the evening hours of February 1, 2008, but did not sand again during the morning hours of February 2, 2008 including up to 9:00 am, despite being aware that rain would make the icy walkways more slippery and that residents of Piper Shores would be using the walkways to: get from building to building; walk their dog or for recreational purposes." • ~ 20: "Defendant L.P. Murray had a duty to properly sand the premises of Piper Shores to protect the residents from falling on ice or snow and Defendants Piper Shores and Life Care Services had a duty to maintain the premises in a safe and reasonable manner for the use of the residents of Piper Shores." (See also Complaint ~~ 23-25.)

6 The clerk shall incorporate this Order into the docket by reference pursuant to

M.R. Civ. P. 79(a).

DATED: April 1, 2010 c . Wheeler, JustIce

7

WENDELL LARGE ESQ RICHARDSON WHITMAN LARGE & BADGER PO BOX 9545 PORTLAND ME 04112-9545

alne U411 ~-U~t:S /

NELSON LARKINS ESQ PRETI FLAHERTY BELIVEAU PACHIOS & HALEY PO BOX 9546 PORTLAND ME 04112-9546

~'IC; . ',ft (. (? .. <..~ CC.f~

'''-'I l U I 1\.' V V U I HJ J. Box 287 Maine 04112-0287

MARK RANDALL ESQ PO BOX 17915 f PORTLAND ME 04112 ~)

STATE OF T\IIAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: CV-09 520 7I --if\ vJ - Cv.-f'{\- '~ 1 ;)C> lJ

STATE OF MA\NE MARCELA BENNETT, Cumberland, ss, Clerk's Office Personal Representative of the ESTATE OF WAINO RAY, DEC 01 2011 Plaintiff, RECEIVED V. DECISION and ORDER

LP MURRAY & SONS, INC., ET AL.,

Defendants

Before the court is Defendants', Maine Care Retirement Community,

d/b/a Piper Shores, and Life Care Services, LLC, Motion for Summary Judgment

on Counts I (negligence) and II (wrongful death) of the Plaintiff's Complaint.

BACKGROUND

This lawsuit, brought by the personal representative of decedent Waino

Ray ("Plaintiff"), arises from a slip and fall that occurred on February 2, 2008 at a

retirement community located in Scarborough, Maine. The retirement

community is owned by Defendant Maine Life Care Retirement Community

d/b/a/ Piper Shores and managed by Defendant Life Care Services, LLC

(collectively referred to as "Defendants" or "Piper Shores"). At all material times

Ray was a resident at Piper Shores. (Defs.' Stat. Facts

Piper Shores contracted with L.P. Murray & Sons, Inc. for plowing snow

from the building, fire lanes, parking areas and sidewalks, spreading salt/ sand

and salt as required on the premises, snow blowing and shoveling walkways.

(Defs.' Stat. Facts

1 if there was a storm, if they were called by Piper Shores' security, or if called by

Cape Elizabeth Public Works. (Defs.' Stat. Facts<[ 9.)

Piper Shores' maintenance and security staff were also responsible for

snow and ice removal. (Defs.' Stat. Facts <[ 12.) The inspection procedure for

when either maintenance staff or security staff on the overnight or weekend

shifts came on duty was to ensure that the emergency exists, entrances, and exits

were clear. (Defs.' Stat. Facts <[ 16.) This inspection was to occur from the

exterior. (Defs.' Stat. Facts <[ 17.) After this was complete the individual would

do an inter~or inspection and a vehicle inspection. (Defs.' Stat. Facts <[ 18.) If

there is an emergency when the security guard begins his or her shift, the

individual may forego the inspection until the emergency has been dealt with.

(Defs.' Stat. Facts <[ 20.)

On the evening of February 1, 2008, L.P. Murray went to Piper Shores and

spread a salt/ sand mixture on most areas, including around the front entrance.

(Defs.' Stat. Facts <[ 22.) On February 2, 2008, security guard Richard Preston

arrived for his shift at 7:45 AM. (Defs.' Stat. Facts <[ 25.) He first responded to an

emergency. (Defs.' Stat. Facts <[ 28.) He then did interior rounds and checked

the entrances and exits. (Defs.' Stat. Facts<[ 29.) He then conducted a vehicle

patrol of the premises. (Defs.' Stat. Facts<[ 31.) At 8:55AM he received a call on

the radio of an emergency at the front entrance. (Defs.' Stat. Facts <[ 31.)

Upon arriving, the security guard was informed that Mr. Ray had fallen

on the ice in front of the building. (Defs.' Stat. Facts <[ 34.) After the emergency

was under control, the security guard went outside to observe the area where

Mr. Ray fell. (Defs.' Stat. Facts<[ 38.) He discovered ice on both sides of the front

entrance that was difficult to see but visible from certain angles. (Defs.' Stat.

2 Facts

Facts qrqr 45-46.) Later that day, the security guard and other staff responded to

an emergency in Mr. Ray's apartment. (Defs.' Stat. Facts q[ 49.) Emergency

response was contacted and Mr. Ray was brought to the hospital where he later

passed away. (Defs.' Stat. Facts qrqr 50-51.)

The Plaintiff alleges that Defendant Piper Shores was negligent by failing

to ensure that the walkways were properly sanded prior to the time they would

be used by the elderly residents of Piper Shores. The Plaintiff has also brought a

wrongful death claim based on the Defendants alleged negligence.

Summary judgment is appropriate where there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law.

M.R. Civ. P. 56( c); see also Levine v. R.B.K. Caly Corp., 2001 ME 77,

653. An issue of "fact exists when there is sufficient evidence to require a fact-

finder to choose between competing versions of the truth at trial." Inkell v.

Livingston, 2005 ME 42, q[ 4, 869 A.2d 745 (quoting Lever v. Acadia Hasp. Corp.,

2004 ME 35, q[ 2, 845 A.2d 1178).

This action in negligence and wrongful death is based on the alleged

negligence of Piper Shores for failure to exercise reasonable care in preventing

the iced condition of the brick walkway on which Mr. Ray slipped and fell,

causing his death. "To survive a defendant's motion for a summary judgment in

a negligence action, a plaintiff 'must establish a prima facie case for each of the

four elements of negligence: duty, breach, causation, and damages."' Davis v. R C

& Sons Paving, Inc., 2011 ME 88, ,-r10, 26 A.3d 787 (quoting Quirion v. Geroux, 2008

ME 41, ,-r 9, 942 A.2d 670). The Defendants appear to challenge both the scope of

3 duty it owed and whether or not there was a breach of that duty. The existence

of a duty of care is a question of law. Laurence v. Howard Sports-Topsham, 2009

Me. Super. LEXIS 129, *10 (May 5, 2009). "Whether a duty was breached and

whether a defendant's conduct was reasonable under the circumstances are

questions of fact for the jury." Budzko v. One City Center Assoc. LP, 2001 ME 37, err

10, 767 A.2d 210 (2001).

"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 the premises."' Budzko, 2001 ME 37, err 11, 767 A.2d 210

(citing Currier v. Toys'R'Us, Inc., 680 A.2d 453, 455-56 (Me. 1996)). Maine courts

have on many occasions taken the opportunity to define, limit and restrict the

common law duty of care in negligence actions related to winter weather.

Alexander v. Mitchell, 2007 ME 108, err 19, 930 A.2d 1016 (2007). "[The courts] have

held that an owner or occupier of land has no duty to remove natural

accumulations of ice and snow with reference to persons passing by the

premises, or in landlord-tenant relationship." Isaacson v. Husson College, 297 A.2d

98, 103 (Me. 1972) (internal citations removed). However, the Law Court

declined to extend this reasoning to the business-invitee and possessor-of-

land situation. "[T]he mere fact that snow and ice conditions are prevalent

during the course of our severe Maine winters is not in and of itself sufficient

rationale for the insulation of the possessor of land from liability to his business

invitees." Id. Where a landowner has a duty to protect against hazardous

conditions, it does not make sense to remove that duty simply because the

hazardous condition is created by snow and/ or ice. Alexander, 2007 ME 108, err

24, 930 A.2d 1016.

4 The Defendants cite section 7-64 of the Maine Jury Instruction Manual as

stating the elements that a plaintiff must establish to prove a negligence claim

when snow and/ or ice is involved. Those instructions state that an ordinary

duty of care is required and that the plaintiff must prove (1) that there was an

accumulation of snow/ ice that was the proximate cause of the injury, (2) that the

snow I ice was present for a time of sufficient duration prior to plaintiff's injury to

enable a reasonably prudent person to discover and remedy, or warn of, it, and

(3) that the defendant knew of the condition, or in the exercise of reasonable care

should have known of the condition, and did not correct it or warn of it.

Alexander, Maine Jury Instruction Manual§ 7-64 (4th ed. 2011).

The case law makes clear that a landowner continues to owe a duty of care

to business invitees even when a hazardous condition is created by a natural

accumulation of snow and/ or ice. The remaining question is whether there was

a breach of that duty. The Defendants argue that the Plaintiff has not elicited

enough evidence during discovery to prove that the ice on which Mr. Ray

slipped and fell was present for a sufficient time to enable the Defendants to

discover it or to prove that, had the security guard completed his inspections

differently, he would have discovered the ice before Mr. Ray fell. The question

of breach is typically a question of fact for the jury.

It is undisputed that the area where Mr. Ray fell was at least partially

covered with ice at the time of his fall. (Defs. Stat. Facts

argument, the Defendants claimed that it is purely speculation to state that had

the security officer examined the entrances and exits from the exterior that he

would have discovered the ice before Mr. Ray fell. However, the security officer

testified that the ice would have been discovered had he done an exterior check.

5 (Pl. Stat. Facts

be done was an exterior check unless there was an emergency but that after the

emergency was cleared, the exterior inspection should be completed. (Pl. Stat.

Facts

It is also undisputed that Piper Shores was aware that this area "could have

patchy accumulation which was usually broken up with the application of salt."

(Defs.' Stat. Facts

the extent to which the Defendants "should have known" that this area was often

covered with ice is disputed. (Pl. Stat. Facts

The Plaintiff cites to testimony of Mr. Stilphen to state that the area in question

was subject to recurrent ice formation from run-off from melting snow and from

the roof area that lacked gutters. (Pl. Stat. Facts

testimony of Mr. Murray, stating that he was instructed not to use sand in this

area even after he explained why sand was necessary, may be evidence of

breach. (Pl. Stat. Facts

It is also disputed whether the weather conditions on February 2, 2008 were

such that the Piper Shores should have known that the recurrent condition

would potentially exist. (Pl. Stat. Facts

oral argument, the Defendants stated that the inspections completed throughout

the day reveal no other ice on the grounds of the facility. This evidence could

support a jury's finding that because ice formed in this area when no other areas

had ice, the Defendants should have inspected it more frequently or in the first

instance.

These are genuine issues of material fact that must be determined by a fact

6 finder. Also, the court finds that there is sufficient evidence on which a jury

could make a finding of breach. Therefore, resolution of the case on summary

judgment inappropriate.

The entry is:

The Defendants' Motion for Summary Judgment on Counts I and II of the

Plaintiff's Complaint is denied.

DATE: December 1, 2011 J A. Wheeler Justice, Superior Court

Mark Randall Esqobo Plaintiff

Erin Berry Esq-obo Defendants Maine Life Care and Life Care Services

7 tN/ STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: CV-09-520 . ~·· 'r J r

MARCELA BENNETT, Personal Representative of the ESTATE OF W AINO RAY,

Plaintiff,

v.

Before the court is the Marcella Bennett's Motion for a New Trial on the

grounds that no credible evidence supports the jury's verdict and the substantial

justice has not been done. In 2009, Ms. Bennett filed a complaint against Piper

Shores asserting negligence and wrongful death on behalf of her father's estate.

The court conducted a jury trial in June 2012. The verdict form required the jury

to first determine the question, "Were the Defendants Life Care Community, Inc.,

d/b/a Piper Shores and Life Care Services, LLC negligent and, if so, was their

negligence a legal cause of Waino Ray's death?" The jury responded in the

negative, and returned a verdict in favor of the defendants.

Without a transcript and relying on the deposition testimony used in the

examination and cross-examination of witnesses, plaintiff argues that the

evidence is uncontroverted on the issues of the duty to Waino Ray and breach of

that duty. Plaintiff contends that the uncontroverted testimony includes

admissions that (1) defendants have a duty to check walkways for ice each

morning, (2) on February 2, 2008, the defendants did not check the walkways

including the brick walkway next to the main entrance, (3) the defendants 1 allowed the ice to remain in the walkway, and (4) these actions of defendant

resulted in Mr. Ray falling on the ice and suffering a fatal head injury.

The Defendants, Maine Care Retirement Community, d/b/a Piper Shores,

and Life Care Services, LLC, (Piper Shores), counter that (1) the plaintiff has

failed to demonstrate any basis for claiming that the verdict was clearly and

manifestly wrong, and (2) there is credible evidence that supports the jury's

verdict and it would be inappropriate to take away the jury's duty and right to

decide the case.

Ms. Bennett's argues that the evidence did not support the jury's verdict,

and that unless the jury acted with bias, prejudice, or improper influence, or has

made some mistake of fact or law, it could not have rationally returned a verdict

for the defendants because the evidence on negligence adduced by the plaintiff

was uncontroverted.

In order to reach its verdict, the jury only had to conclude that the plaintiff

had not proven by a preponderance of the evidence that Piper Shores was

negligent. Even if much or all of the plaintiff's evidence was uncontroverted the

jury was not required to accept the plaintiff's version of the events if reasonable

inferences would support an alternative conclusion. Ma v. Bryan, 2010 ME 55, err

8, 997 A.2d 755. Based on the entirety of the evidence admitted at trial, the jury

may have reasonably inferred that the defendants' actions were not negligent. A

jury is permitted to draw all reasonable inferences from the evidence. Garland v.

Roy, 2009 ME 86, err 17, 976 A.2d 940, 945. The difficulty in obtaining a new trial

pursuant to M.R.Civ.P. 59(a) is "precisely because 'a fact-finder, whether it be a

jury or a court, is not required to believe witnesses, even if the testimony of

2 witnesses, be they experts or lay witnesses, is not disputed.'" Dionne v. LeClerc,

2006 ME 34, err 15, 896 A.2d 923, 929. In the particular case at bar, the plaintiff's

chief difficulty is that in her arguments she has not considered the evidence in its

entirety nor has she established that the jury was compelled to find in her favor

on each element of her claim.

Although the parties had stipulated that Waino Ray fell on ice and the

resulting head injury from that fall on February 2, 2008 caused his death on

February 4, 2008, Ms. Bennett still has the burden of proving negligence.

"Whether a duty was breached and whether a defendant's conduct was

reasonable under the circumstances are questions of fact for the jury." Budzko v.

One City Center Assoc. LP, 2001 ME 37, err 10, 767 A.2d 210 (2001). And, even if the

jury could have reached a different result, the court cannot conclude there was

no credible evidence to support the jury's verdict.

Under Maine law, the owner of property has a duty to use reasonable care

to maintain the premises in a reasonably safe condition in light of the totality of

the existing circumstances. However, a property owner does not guarantee the

absolutely safety of its premises; its duty is to use ordinary case to ensure that the

premises are reasonably safe, guarding against all reasonably foreseeable

dangers. To prove negligence where snow and ice are involved, Ms. Bennett was

required to prove at trial that it is more likely than not that: (1) there was an

accumulation of ice on the premises that was a cause of Mr. Ray's injuries; (2) the

ice condition had been present for a time of sufficient duration prior to Mr. Ray's

injury to enable a reasonably prudent person to discover and remedy or warn of

it; and (3) Piper Shores knew of the ice condition and did not correct or warn of

it, or did not know of the ice condition but in the exercise of reasonable case

3 should have known of and corrected or wamed of the condition. See Alexander,

Maine Jury Instruction Manual§ 7-64 (4th ed. 2011). With the exception of the first

element, Ms. Bennett has failed to demonstrate that the jury was compelled to

find in her favor on each of the second and third elements of her claim. See Ma v.

Bryan, 2010 ME 55, 9I 6, 997 A.2d at 758.

Although the parties had stipulated that Waino Ray fell on ice and the

resulting head injury from that fall on February 2, 2008 caused his death on

February 4, 2008, Ms. Bennett still has the burden of proving negligence.

"Whether a duty was breached and whether a defendant's conduct was

reasonable under the circumstances are questions of fact for the jury." Budzko v.

One City Center Assoc. LP, 2001 ME 37, 9I 10, 767 A.2d 210 (2001). And, even if the

jury could have reached a different result, the court cannot conclude there was

Reviewing all of the evidence in its entirety and in a light most favorable

to the verdict, Provencher v. Faucher, 2006 ME 9, 9I9I 2, 6, 898 A.2d 404, 405, 406,

the court concludes that the jury could have reasoned that although there was an

accumulation of ice on the walkway at Piper Shores that was the cause of Mr.

Ray's injuries, either (1) the ice condition had not been present for a time of

sufficient duration prior to Mr. Ray's injuries to enable a reasonable person to

discover and remedy or warn of it or (2) Piper Shores did not know of the ice

condition and could not have not have known of and corrected or warned of the

condition. Given the timeline of the events that unfolded on the late evening of

February 1 and early morning hours of February 2, the jury was not compelled to

find the second and third elements of negligence in plaintiff's favor.

4 Here, the jury could have reasonably inferred that Piper Shores did not

know of the ice condition on the morning of February 2, 2008, until after Mr. Ray

fell. The jury may have concluded that Piper Shores was exercising reasonable

care on the morning of February 2 in light of the testimony of Richard Preston,

Leland Murray and Lou Miller. Based on their testimony, the jury could have

found that the surface of the accident site was maintained and treated between 8

and 10 p.m. on the evening of February 1, that at that time the precipitation was

rain, and that the temperature was warming. The jury could have also found

that there was no need to return to treat the surface at Piper Shores during the

night and the next morning because the precipitation had stopped and the

temperature went well above freezing.

The jury could also have found that Piper Shores' was acting reasonably

by establishing priorities to ensure the safety of its residents, and that these

priorities were to ensure that the roads in and out of the community were open

for emergencies and that emergency exits remained open so emergency

personnel and residents could enter and exit buildings. The jury could have

found that the area where Mr. Ray fell was not a priority location. The jury could

also have found that Mr. Preston, the maintenance and security staff person who

came on duty at 7:45a.m. on the morning of February 2, acted with reasonable

care when he first attended to an emergency call, and then followed the

established priorities by completing his interior rounds of checking that the

emergency exits were clear, and by beginning to conduct his vehicle rounds to

check the exterior of the building. Unfortunately, he was interrupted by a radio

call for a fallen resident (Mr. Ray) before he could complete his exterior rounds.

The jury could have found that under all these circumstances, including the

5 weather on February 1 and 2, the rising temperatures, the place of the fall was

not a priority area, the location of sand and salt barrels including one near the

front entrance adjacent to the site of Mr. Ray's fall, and the emergency rounds

performed by Mr. Preston on the morning of February 2, that Piper Shores'

conduct was reasonable and the defendants did not breach their duty to Mr. Ray.

The jury was not required to accept the evidence of plaintiff's safety

expert on the issues of the reasonableness of the defendants' conduct or the duty

owed to Mr. Ray by the defendants. The jury could have considered the policies

and procedures of Piper Shores and how they were carried out on February 1

and 2 and concluded that Piper Shores did not act negligently. The jury was not

compelled to find negligence in light of the entirety of the evidence.

Finally, although Bennett's motion for a new trial asserted that the jury's

verdict must have been due to prejudice, bias, passion, or mistake of fact, Bennett

has pointed to nothing in the record that might demonstrate prejudice other than

the fact that the verdict was not in her favor. The "record is entirely devoid of

any indication that the jury reached its verdict on any improper bias, and in the

absence of 'any verifiable external manifestations' of such impropriety," this

court must accept the verdict. Ma v. Bryan, 2010 ME 55, at<][ 9, 997 A. 2d at 760.

Accordingly, the court concludes that there is no evidence on the record of

any jury bias, prejudice, or misconduct; that there is no evidence to support a

suggestion that the jury failed to follow the law; and that the jury's verdict is

supportable by the entirety of the evidence.

Motion for a New Trial DENIED.

6 July 31, 2012

Plaintiff-Mark Randall Esq

Defendants (Remaining)- Nelson Larkins Esq