Cote v. M.Blais Properties

• Court: Superior Court of Maine
• Decided: November 12, 2013
• Docket: CUMcv-11-545
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss.

NORMAND J. COTE, STATE OF MAINE vl6fi\''s Offif'A Cumberl<3'iC; {~,., '"'' 1 ....... CIVIL ACTION

r Docket No. CV-11:-5}! / -rJJW- LUfY\- 7 -<-o 13

Plaintiff

V. ORDER RECEIVED M. BLAIS PROPERTIES LLC, et al,

Defendants

Before the court is a motion for summary judgment by defendants M. Blais

Properties LLC, M. Blais Builders Corporation, Maurice Blais, and Jocelyne Blais.

Plaintiff Normand Cote was a tenant in an apartment building that is owned by

defendants Maurice and Jocelyne Blais and managed by M. Blais Properties LLC (Blais

Properties). The building was constructed by another Blais company, M. Blais Builders

Corporation (Blais Builders). Cote alleges that he was seriously injured in October 2009

when he fell after a handrail in the stairway of the building pulled out of the wall.

Defendants have raised three arguments in moving for summary judgment. The

first is that any negligence in the installation of the handrail that occurred during the

construction of the building was the responsibility of an independent contractor. The

second is that there is no evidence prior to the accident that would have put Maurice

Blais, Jocelyne Blais, or Blais Properties on notice of any dangerous condition with

respect to the handrail. The third is that there is insufficient evidence to avoid summary

judgment on the issue of causation. Summary Judgment

Summary judgment should be granted if there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law. In considering a

motion for summary judgment, the court is required to consider only the portions of the

record referred to and the material facts set forth in the parties' Rule 56(h) statements.

~.,Johnson v. McNeil, 2002 ME 99 'IT 8, 800 A.2d 702. The facts must be considered in

the light most favorable to the non-moving party. Id. Thus, for purposes of summary

judgment, any factual disputes must be resolved against the movant. Nevertheless,

when the facts offered by a party in opposition to summary judgment would not, if

offered at trial, be sufficient to withstand a motion for judgment as a matter of law,

summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 'IT 8, 694 A.2d

924.

In this case, there is one procedural issue at the outset. In response to the

statement of additional facts submitted by Cote as part of his response to defendants'

motion, see M.R.Civ.P. 56(h)(2), defendants submitted a reply statement of material

facts pursuant to Rule 56(h)(3). Defendants' reply statement contained a number of

objections to the admissibility of evidence cited by Cote in his statement of additional

material facts and to the factual support for assertions made by Cote in his statement of

additional material facts.

As permitted by Rule 56(i)(2) counsel for Cote filed a response to defendants'

objections. However, counsel for Cote simultaneously filed a seven page sur-reply

memorandum responding to the arguments in defendants' reply memo. 1 Defendants

1 The memorandum is entitled "Plaintiff Normand A. Cote's Response to Defendants' Summary Judgment Reply Pursuant to M.R.Civ.P. 56(i)(2)" and is dated March 31, 2012.

2 have objected to this latter submission, which is not permitted by Rule 56 and for which

counsel did not seek leave of court.

The sur-reply memorandum shall be stricken from the record. Summary

judgment practice is cumbersome enough without unauthorized submissions by

counsel seeking to have the last word.

Liability of Blais Builders

The summary judgment record establishes that installation of the handrail was

performed by an independent contractor when the building was constructed in 1993 or

1994. Defendant's Statement of Material Facts (SMF) dated February 5, 2013 ~~ 8, 10.

Although Cote states that he "reserves the right" to prove that the installer was an

employee, 2 Cote has not offered evidence generating a disputed issue for trial as to

whether the installer was an employee or as to whether Blais Builders exercised control

over the details of the installer's work. Moreover, Cote and his expert have elsewhere

essentially conceded that the installer was an independent contractor. See Plaintiff's

SMF dated February 26, 2013 (response to ~59); Dodge Dep. 93.

The remaining question raised on the instant motion is whether Blais Builders

can be held liable for alleged negligence on the part of an independent contractor. On

this issue Blais Builders relies on the Law Court's adherence to the principle that

employers are not generally liable for the negligence of independent contractors.~

Rainey v. Langen, 2010 ME 56 ~ 14, 998 A.2d 342; Legassie v. Bangor Publishing Co.,

1999 ME 180 ~ 5, 741 A.2d 442. Cote relies on the list of exceptions to that principle that

are set forth in the Restatement (Second) of Torts.

2 See Plaintiff's Response to Defendants' Motion for Summary Judgment dated February 26, 2013 at 3.

3 Cote primarily relies on Restatement section 410 (negligent orders or directions

given by employer), section 412 (failure to inspect repair or maintenance work), section

421 (liability for maintenance and repair work), section 422 (liability of possessors of

land once they have resumed possession from contractor), and section 424 (statutes or

regulations requiring specified safeguards or precautions). He also cites, at least in

passing, Restatement sections 413, 414, and 416.

As far as the court can tell, the Law Court has never adopted the Restatement

sections on which Cote primarily relies and has expressed reservations with respect to

two of the other sections cited by Cote. See Dexter v. Town of Norway, 1998 ME 195 9I9I

9-10, 715 A.2d 169 ("we are far less certain as to whether and under what circumstances

we would recognize" the principles set forth in Restatement sections 413 and 416).

Moreover, even if they were to be adopted in Maine, most of the exceptions relied upon

by Cote do not appear to be applicable in the instant case.

Restatement sections 412 and 421 thus expressly apply to persons who are under

a duty to "maintain" premises in a reasonably safe condition and who contract out

repair work. Cote offers no authority for the proposition that a construction company

which built a building in 1993 or 1994 has a continuing duty to maintain that building

in a safe condition. The remaining defendants do have such a duty, as discussed below,

but that duty does not extend to Blais Builders just because Blais Builders is owned by

Maurice and Jocelyne Blais. 3

Similarly, Restatement section 422 applies to a "possessor" of land, but Blais

Builders was not the possessor of the building at the time Cote was injured.

Restatement section 410 states that an employer of an independent contractor who

3 Cote has not contended - and has offered no evidence - that the corporate form of Blais Builders should be disregarded.

4 negligently gives orders and directions to the independent contractor is liable as if the

contractor's acts or omissions were the employer's own. On this record, however, the

undisputed evidence is that the independent contractor was instructed to install the

handrail safely and in compliance with all municipal and industry requirements. 4

That leaves, however, Restatement section 424 which provides as follows:

One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.

On this issue Cote has demonstrated the existence of a disputed issue for trial on

whether the handrail as installed violated building code specifications designed for the

safety of persons using the stairwell. 5

While the court has some doubt as to whether a company who constructs a

building but does not own or manage the building has a general duty to subsequent

tenants, building code requirements designed to safeguard building occupants

represent legal duties that have already been imposed and the court cannot see any

reason why those should not be enforceable by damage suits on behalf of persons the

code requirements are designed to protect.

4 The evidence is scant on this issue because the installation occurred in 1993 or 1994 and the installer has since died. However, the court does not find that Cote's attempts to dispute defendant's evidence as to the instructions given, based on supposition and conjecture from Cote's safety expert, David Dodge, is sufficient to create a disputed issue for trial on this issue, even assuming that Maine would adopt section 410 of the Restatement. Moreover, the court is also not convinced that if Blais Builders had installed the handrail itself, the Law Court would adopt the principle that a company which constructs a building (as opposed to the owner of that building) owes a duty to all of the tenants who subsequently occupy the building and may be injured on the premises. 5 There may be an issue as to whether the building code specifications relied upon by Cote were in effect in Hallowell in 1993 or 1994. For purposes of summary judgment inferences on that issue must be drawn in Cote's favor. At trial, however, it will be Cote's burden to show that any Building Code provisions upon which he relies were in effect at the relevant time.

5 Moreover, since a building contractor is already ultimately responsible for

compliance with building code requirements, the court predicts that the Law Court

would adopt section 424 of the Restatement and would not shield the building

contractor from liability for a building code violation resulting from work performed by

an independent subcontractor. The court concludes that Blais Builders is not entitled to

summary judgment on this issue.

Blais Builders may have other legal defenses, including the statute of limitations.

In his summary judgment papers Cote argues that his claim is not time-barred against

Blais Builders based on the "continuing tort" doctrine. The court expresses no opinion

on that issue because Blais Builders has not raised or relied on the statute of limitations

in its pending motion for summary judgment.

Liability of Blais Properties, Maurice Blais, and Jocelyne Blais for Dangerous Condition in Stairwell

With respect to Cote's claim against Blais Properties, Maurice Blais, and Jocelyne

Blais (collectively the "landlord defendants"), the court concludes at the outset that

there is no evidence that any of those defendants were on notice of the existence of the

allegedly dangerous condition of the handrail prior to Cote's injury. Plaintiff's safety

expert, David Dodge, has surmised that certain of the handrails may have moved with a

wiggle, but this was based on an inspection he conducted in April 2012. See Dodge Dep.

95-96. He acknowledged he had no factual information that the handrails wiggled prior

to Cote's fall. Id. 96. Accepting that Dodge observed some wiggle in April 2012, that

observation more than two years after the accident is not admissible evidence as to the

condition of the handrails prior to Cote's injury or as evidence that the landlord

defendants should have been on notice that any handrails were unstable.

6 Cote himself testified that he regularly used the handrails in the building, never

noticed any problems or looseness, and never made any complaints about the

handrails. Defendants' SMF errerr 32-33 (admitted). It is also undisputed that from the

completion of construction until the date of Cote's injury, there were never any

complaints made about any handrails anywhere in the apartment complex. Defendants'

SMF err 25 (admitted).

However, while the liability of possessors of land to invitees depends on whether

the possessor knew or had reason to know of the existence of a dangerous condition on

the premises, see Restatement (Second) of Torts§ 342, a different rule appears to apply

to a landlord's obligation to tenants with respect to dangerous conditions in common

areas under the landlord's control. In that case liability depends, not on whether the

landlord had reason to know of the condition, but on whether the Landlord by the

exercise of reasonable care could have discovered the condition. Restatement (Second)

of Torts§ 360. See also Restatement (Second) of Property, Landlord and Tenant§ 17.3.

On several occasions the Law Court has stated that

[i]f landlords retain control over common areas in the rental property, they can consequently be held liable for dangerous conditions in those areas.

Stewart v. Aldrich, 2002 ME 16 err 13, 78 A.2d 603. Accord, Nichols v. Marsden, 483 A.2d

341, 343 (Me. 1984) ("A landlord also may be found liable in negligence for injuries

caused by defective conditions in common areas of a rented building over which he is

deemed to have control"). On those occasions the Law Court did not add a qualifier

that liability would only exist if the landlord knew or had reason to know of the

dangerous condition.

While the above statements in the Stewart and Nichols decisions are arguably

dicta, the Law Court has in fact applied the above principle in upholding verdicts

7 against landlords in Anderson v. Marston, 161 Me. 378, 213 A.2d 48 (1965), and Horr v.

Jones, 157 Me. 1, 170 A.2d 144 (1961). In Anderson the evidence demonstrated that the

landlord had reason to know of the dangerous condition, but the court did not state that

reason to know was required. See 161 Me. at 381-82, 213 A.2d at 49-50. In Horr liability

was premised on the landlord's negligence in failing to inspect the porch even though

"[t]here had been no visible warning" of the dangerous condition. See 157 Me. at 3, 8,

213 A.2d at 145, 147.

The issue of whether the landlord defendants in this case could by the exercise of

reasonable care have discovered any dangerous condition that may have existed in the

handrails presents a disputed issue for trial in this case.

Causation

The defendants' final argument, premised on Addy v. Jenkins Inc, 2009 ME 46,

969 A.2d 935, is that because no one observed Cote's fall or the separation of the

handrail from the stairwell wall, there is insufficient evidence of causation. Cote's

testimony is that he has no recollection of his fall or the circumstances that led to the

fall. Defendants' SMF CJ[ 57. 6 Defendants argue that- with Cote's history of unprovoked

falls, see Defendants' SMF CJ[ 38 (admitted)- there is no basis on which to find that his

fall was caused by the separation of the handrail from the wall?

6 Counsel for Cote counters with testimony from Leo Lessard that Cote told Lessard at the hospital the following day that he grabbed the handrail and it came out of the wall. Plaintiff's SMF

8 In the court's view, the summary judgment record, construed in the light most

favorable to plaintiff, contains sufficient circumstantial evidence - including the

handrail separated from the wall, the presence on the landing of possessions that Cote

had kept in the basement, the nature of the injuries that Cote suffered- from which a

fact-finder at trial could arrive at an inference that it is more likely than not that Cote

fell because he was holding the handrail when it pulled out of the wall. The

circumstantial evidence in this case, particularly the handrail separated from the wall in

close proximity to Cote's belongings, distinguishes this case from Addy.

Defendants' motion for summary judgment on the issue of causation is denied.

The entry shall be:

Defendants' motion for summary judgment is denied. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: May 2-3, 2013

--~ Thomas D. Warren Justice, Superior Court

hypothesis. A third possible alternative is that Cote fell on his own near the handrail and pulled the handrail out of the wall trying to stand up. As discussed in the accompanying text, regardless of the relative merits of any alternative theories, there is sufficient evidence to proceed to trial on plaintiff's theory of causation. Whether that theory will prevail once all the facts and circumstances are developed at trial remains to be decided.

9 CUMBERLAND COUNTY'S CLERK'S OFFICE CIVIL-REAL ESTATE DIVISION 205 NEWBURY ST PO BOX 412 PORTLAND ME 04112

p MICHAEL BIGOS ESQ BERMAN & SIMMONS PO BOX 961 LEWISTON ME 04243-0961 CUMBERLAND COUNTY'S CLERK'S OFFICE CIVIL-REAL ESTATE DIVISION 205 NEWBURY ST PO BOX 412 PORTLAND ME 04112

H PETER DEL BIANCO ESQ ~~ LAMBERT COFFIN PO BOX 15215 PORTLAND ME 04112 STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION Docket No. CV-1J.-5jl lJ7W- cum _\\/ JT);;.o1~ ) NORMAND J. COTE, ) ) Plaintiff, ) ORDER ) v. ) ) ) STATE OF MAINE M. BLAIS PROPERTIES LLC, et al, ) Curnbef1and, S$, Clerk's Offtce ) NOV lZ 2013 Defendants RECEIVED A jury-waived trial in the above captioned action was held on July 31- August 2,

2013 and August 7 and 8, 2013. After the trial the parties filed post-trial memoranda,

and final briefing was completed on September 9, 2013.

The court finds as follows:

The October 10, 2009 Fall

1. Plaintiff Normand Cote was injured on October 10, 2009 in a fall in the

stairwell of the multi-unit apartment building where he resided at 3 Stickney Terrace in

Hallowell, Maine.

2. Mr. Cote, who was 82 years old on October 10, 2009, had been living

independently but was about to move to an assisted living apartment at Mount St.

Joseph in Waterville, Maine.

3. In October 2009 Mr. Cote's wife was already at Mount St. Joseph's. She had

Alzheimer's and was in a separate area of Mount St. Joseph's that offered skilled

nursing care. 4. Mr. Cote visited his wife in the Mount St. Joseph's facility as often as twice a

day even though at times she no longer recognized him.

5. On October 10, 2009, Mr. Cote's sister, his brother in law and nephew were at

3 Stickney Terrace helping Mr. Cote pack in preparation for his move.

6. After loading some of Mr. Cote's possessions in their vehicle, Mr. Cote's

brother in law and nephew found Mr. Cote sitting at the top of the steps leading down

to the basement storage area. Mr. Cote looked dazed and in pain and he appeared to

have a bump on the side of his forehead. Thereafter, he was taken in an ambulance to

Maine General Hospital in Augusta, Maine and later that evening was transported to

Maine Medical Center in Portland, Maine.

7. At Maine Medical Center Mr. Cote was diagnosed as having what the

neurosurgeon described as a mild brain injury, along with a fracture at the base of his

skull, a fracture of his right cervical vertebrae (C 1-2), and a fracture of one of the

metacarpal bones in his right hand. 1 The fracture at the base of his skull and the fracture

at C 1-2 were caused by an impact to the upper left part of Mr. Cote's forehead that

compressed his skull against the neck.

8. Notwithstanding the fractures at the base of his skull and at C 1-2, Mr. Cote

had no neurological symptoms. After those fractures were evaluated, the only

significant treatment Mr. Cote received for the fractures were instructions to wear an

Aspen collar for several months. The major issue with respect to Mr. Cote's injuries

concerns the effect of the mild traumatic brain injury that he received as a result of his

fall.

1 Mr. Cote also had a fracture at the tip of the C-1 transverse process. This was not found to have any functional or structural consequence. Florman Dep. 15 (admitted at trial by agreement).

2 9. With respect to the specifics of his fall, Mr. Cote has no memory, and no one

observed him fall. However, Mr. Cote was found at the top of a flight of stairs which led

down to a landing halfway to the basement storage area. Lying on the landing or on the

stairs just above the landing was one of the handrails from the landing, which had

become detached from the wall. The appearance of the wall and the screws protruding

from the handrail suggested that one end of the handrail had been twisted as it pulled

out. Also on the landing were two luggage items that Cote had kept in the basement.

The court concludes that the handrail was pulled out of the wall by Mr. Cote.

10. Prior to Mr. Cote's fall, neither the landlord nor anyone else using the

handrail or stairs had ever observed or been made aware that the handrail was either

loose or that it was not firmly attached to the wall. Although the handrail had not been

fastened to the wall in accordance with the load requirements in the building code, the

handrail would not have detached from the wall unless subjected to substantially more

force than would normally be applied by a person tugging on the handrail or using the

handrail to steady himself.

11. Mr. Cote had become increasingly unsteady in the year and a half prior to

October 10, 2009. Based on his physician's reports, Mr. Cote had fallen up to 18 times as

of March 10, 2009.

12. The exact mechanism of Mr. Cote's head injury is unknown. Whether he

struck the top of his head on the handrail itself or whether he struck his head on some

other surface (such as one of the protruding corners on the inside of the turn on the

landing2 ) cannot be determined. Because significant force had to be applied to pull the

handrail out of the wall, the court determines that it is less likely that Mr. Cote

2 See Ex. 17 (photo of landing from above).

3 originally injured himself while falling and subsequently detached the handrail while

attempting to stand up. It is more likely than not that the handrail was wrenched off

when Mr. Cote lost his balance and grabbed for the handrail to prevent himself from

falling. Accordingly, it is more likely than not that the failure of the handrail was a legal

cause of Mr. Cote's head injury.

Alleged Negligence on the Part of Defendants

13. The buildings at Stickney Terrace, including 3 Stickney Terrace, are owned by

defendants Maurice and Jocelyne Blais. Three Stickney Terrace was built by defendant

M. Blais Builders Corporation (Blais Builders), a company owned by Maurice Blais, in

1993 or 1994.

14. The handrails in the stairwells at 3 Stickney Terrace were installed by an

independent contractor, Jerry Blaisdell, who has since died.

15. It is not disputed by the defendants that the screws used to fasten the

particular handrail that detached from the wall on October 10, 2009 were too short. Both

Kevin Marcoux, who performed maintenance at Stickney Terrace, and Maurice Blais

readily acknowledged the problem when they saw the screws after the handrail had

been pulled out of the wall. However, Maurice Blais and Blais Builders played no role

in choosing the method by which Jerry Blaisdell attached the handrail. The only

instructions given to Blaisdell by Maurice Blais were to attach the handrails securely

and to follow the building code.

16. According to the BOCA code in effect when 3 Stickney Terrace was built, ' handrails were to be designed and constructed for a concentrated load of 200 lbs. The

screws holding the handrail that detached only penetrated approximately% inch into

the studs in the wall. Depending on the manner and angle of the force applied to the

4 handrail, the handrail was only able to withstand a force of somewhere between 60 to

100 lbs. 3

17. Both plaintiff and defendants offered expert testimony as to the amount of

force necessary to dislodge the handrail and the manner in which force necessary to

dislodge the handrail may have been applied. Except to the extent that the testimony of

plaintiff's expert, David Dodge, is consistent with the court's findings, the court did not

credit Mr. Dodge's testimony. His testimony and opinions were too often influenced by

his desire to assist plaintiff's case and his assumption of the role of an advocate rather

than an unbiased expert and witness. On the other hand, the court did not find the

expert opinions offered by defendant's expert, James Thibodeau - particular! y his

theory that Mr. Cote dislodged the handrail when his head struck it as he fell down- to

be convincing.

18. None of the defendants had any reason to know or suspect that the handrail

had been inadequately fastened when it was installed in 1993 or 1994. As of October 10,

2009 no complaint had ever been received with the respect to the handrail that detached

or any other handrail in the various Stickney Terrace buildings. Before the handrail

detached on October 10, 2009, there is no evidence that the handrail was loose. None of

the witnesses who testified had observed any problems in using handrails at 3 Stickney

Terrace.

19. In October 2009 3 Stickney Terrace and other Stickney Terrace buildings were

managed by defendant M. Blais Properties LLC, another company owned by Maurice

Blais. The primary person charged with maintenance at the Stickney Terrace buildings

3 Plaintiff's safety expert, [)avid Dodge, estimated that two screws at one end of the handrail fastened% inch into the stud would only be able to withstand a load of 58.5 lbs., but this figure is likely too low because it did not take into account that the handrail was also fastened by two screws at the other end.

5 was Kevin Marcoux, who was an employee of Blais Builders. Mr. Marcoux and Maurice

Blais routinely inspected the stairwells and common areas of the Stickney Terrace

Buildings and were diligent in performing maintenance and repairs where they

observed any problems or when issues were brought to their attention.

20. None of the defendants knew or in the exercise of reasonable care should

have known that the handrail was inadequately attached. When subjected to ordinary

usage, the handrail remained solidly attached. Kevin Marcoux and Maurice Blais could

not have discovered the unsafe condition of the handrail through the exercise of

reasonable care because the defect in the way the handrail was attached was not

apparent when the handrails were inspected.

21. This is true even though, prior to Mr. Cote's fall, the defendants did not

subject the handrails at Stickney Terrace to load testing. Load testing would have

involved the application of substantial force to determine whether the handrails would

withstand a load of up to 200 lbs. No expert testimony was offered that the standard of

care for owners of multi-unit apartments is to subject their handrails to load testing. If

load testing were required, landlords would have to periodically tear out their

handrails in order to determine their safety. 4 Absent some indication of an unsafe

condition, this goes beyond what is required in the exercise of reasonable care.

22. The court does not find that the evidence supports the defendant's argument

that comparative negligence is applicable here. Mr. Cote had become prone to falling

during the preceding year, but he was not negligent in utilizing the stairs to the

4 To reattach the handrails, the building owners would then have to reconstruct the wall and the studs to which the handrails were attached. There would then be a question whether the reattachment was sufficient.

6 basement storage area on October 10, 2009, nor can he be found negligent for losing his

balance.

23. To summarize the relationship of the various defendants to 3 Stickney

Terrace, the building was built by Blais Builders, which employed an independent

contractor to install the handrails. At all relevant times Maurice Blais was the sole

shareholder and principal officer of Blais Builders. An employee of Blais Builders

(Kevin Marcoux) was the principal person responsible for maintenance at 3 Stickney

Terrace. Maurice Blais and his wife Jocelyne Blais are the owners of 3 Stickney Terrace,

and the Stickney Terrace buildings were managed in October 2009 by M. Blais

Properties LLC, which is also solely owned by Maurice Blais.

24. There was no evidence of any intermingling of assets between Maurice and

Jocelyne Blais, Blais Builders, and/ or M. Blais Properties LLC. There was no evidence of

any nonobservance of corporate formalities, of the insolvency of any entity, of any thin

capitalization or nonpayment of dividends, or of any misuse of corporate assets. There

was no evidence that the corporate form was misused for the benefit of Maurice Blais or

Jocelyne Blais, and no evidence that the corporate form was used in any way to

promote fraud or other wrongdoing.

Mr. Cote's Injuries and Damages

25. Prior to his fall, Normand Cote's relatives had not noticed any significant

recent decline in his faculties. As noted above, he had fallen multiple times in the prior

year but his relatives were not aware of the severity of that problem.

26. Mr. Cote had had four recent automobile accidents during the months prior

to his fall. During a doctor's visit on October 2, 2009- eight days before the fall which is

the subject of this lawsuit - Mr. Cote's physician advised Mr., Cote that he should no

7 longer be driving. Mr. Cote said that he was going to hire someone to drive him in the

future. As a result, the physician did not take the step of reporting to the Department of

Motor Vehicles that Mr. Cote should not longer drive - a step that the physician

otherwise would have taken.

27. Prior to October 10, 2009 Mr. Cote had also been expenencmg v1s10n

problems, including diplopia (double vision).

28. At the time of Mr. Cote's October 2, 2009 visit to his physician, his physician

described Mr. Cote as definitely slowing down but still mentally clear.

29. The staff at Mount St. Joseph's, where Mr. Cote visited his wife in the skilled

nursing care unit, had noticed that Mr. Cote was exhibiting some beginning signs of

dementia during the year prior to his fall. See Ex. lA (Mt. St. J. 0035).

30. When admitted to Mount St. Joseph after his release from Maine Medical

Center, one of Mr. Cote's diagnoses was vascular dementia - a condition that existed

independently of the injuries caused by his fall.

31. As noted above, upon admission to Maine Medical Center on the night after

his fall, Mr. Cote had been diagnosed with a fracture at the base of the skull 5 and a right

Cl-2 vertebral body fracture. Notwithstanding these injuries, Dr. Florman, the

neurosurgeon who examined Mr. Cote at Maine Medical Center the day after his fall,

found Mr. Cote to be neurologically intact at that time.

32. Mr. Cote was released from Maine Medical Center on October 14, 2006 and

was thereafter treated in the skilled nursing center at Mount St. Joseph's, where his wife

was, until late November 2009. This required a level of care and expense above that

5 The medical records variously describe that fracture as an occipital condyle fracture and/or a fracture of the clivus. Dr. Florman described the injury as a fracture in the bone at the base of the skull caused by an impact to the top ofMr. Cote's forehead that compressed the base ofthe skull against his neck. Florman Dep. 15-18.

8 which he would have incurred if he had entered the assisted living facility at Mount St.

Josephs as he had planned. At Mount St Josephs Mr. Cote was still experiencing

significant pain fro:tn his fall.

33. Approximately a month after Mr. Cote's fall, while Mr. Cote was at Mount St.

Josephs, his wife died- an event that caused Mr. Cote considerable anguish.

34. Mr. Cote was discharged from Mount St. Joseph in late November 2009 and

thereafter went to St. Joseph's Manor in Portland, where he would be closer to other

family members now that his wife had died. The Mount St. Joseph's discharge notes

state that Mr. Cote was being discharged to an assisted living facility, but records at St.

Joseph's Manor indicate that he continued to receive skilled nursing care at that facility

at least through the first few months of 2010.

35. By the time he was discharged to St. Josephs Manor, Mr. Cote was no longer

experiencing significant pain. See Ex. 1A- FlorOOOl ("minimal neck discomfort").

36. It appears from the medical records that during the period from March 2010

to the end of February 2011 Mr. Cote required a lower level of care during his stay at St.

Joseph's Manor than he did during the three months after his arrival. Mr. Cote's

brothers Roland and Raymond testified that during this period Mr. Cote's brothers

would pick him up at St. Joseph's Manor and take him out to lunch one or two times

per month. In February 2011 a Mercy Hospital record described Mr. Cote as "in assisted

living currently at St. Joseph's." Ex. 1B (StJManor 0417, 0419).

37. Except for some minor loss of range of motion, Mr. Cote's occipital condyle

fracture and his C1-C2 vertebral fracture did not result in any lasting damage. In mid

December 2009 Mr. Cote was examined by Dr. Florman, who advised Mr. Cote that he

could discontinue use of an Aspen collar at that time.

9 38. The most serious result of Mr. Cote's October 10, 2009 fall is that it resulted in

what Dr. Florman described as a "mild underlying brain injury" that contributed to a

decline in Mr. Cote's cognitive functions. The court finds from the record and other

evidence that, although there was evidence of decline and compromise of Mr. Cote's

functioning prior to his October 10, 2009 fall, his head injury on October 10, 2009

resulted in an accelerated decline.

39. After the October 10, 2009 fall Mr. Cote required a walker and in some cases a

wheelchair to get around. His brother Raymond recalled that at the beginning of Mr.

Cote's stay at St. Josephs Manor, Mr. Cote could walk at least short distances and with

the assistance of a walker but as time went on he was confined to a wheelchair more

and more.

40. The nursmg staff at Mount St. Josephs and at St. Josephs Manor noted

cognitive decline and cognitive and linguistic impairments. Mr. Cote was also

considerably less animated and more subject to confusion.

41. On February 18, 2011, while at St. Josephs Manor, Mr. Cote fell once again,

suffered another head injury, and was taken to Mercy Hospital. This was not the first

fall Mr. Cote had suffered at St. Joseph's Manor, 6 but on this occasion Mr. Cote was

diagnosed with a subdural hematoma and a subarachnoid hemorrhage resulting,

according to the medical records, in a "traumatic brain injury." Ex. 1A (Dinn0010).

42. The Mercy Hospital records state that it was decided at that time that Mr.

Cote needed a higher level of care and that he should be discharged to skilled nursing

care rather than assisted living?

6 See Dr. Florman's report of April15, 2010. Ex. 1A (Flor0002). 7 See Ex. 1B: StJManor 0416- "discharged to "SNF" (skilled nursing facility); StJManor 0419 (agreement that patient needs higher level of care).

10 43. At closing argument counsel for plaintiff stated that plaintiff was not

claiming for the February 2011 fall. This was consistent with the absence of any

evidence that Mr. Cote's October 10, 2009 injuries caused or contributed to his fall in

February 2011. Because the February 2011 fall triggered a return to skilled nursing care,

the court finds that defendants have met their burden of showing that the increased

level of medical care that Mr. Cote required from February 2011 onward, his loss of the

ability to live independently or in assisted living from February 2011 onward, and his

treatment expenses from that date forward were not the result of injuries caused or

aggravated by any fault on the part of the defendants. Lovely v. Allstate Insurance Co.,

658 A.2d 1091, 1092 (Me. 1995). It would be unrealistic, to say the least, to conclude that

an 82 year old man with a history of frequent falls and the beginning signs of dementia

prior to October 10, 2009 would have been able to live independently in an assisted

living facility for the remainder of his life.

44. From the time of his fall in October 2009, Mr. Cote's relatives observed what

they characterized as a marked deterioration in his condition, particularly as time went

on. The court finds that Mr. Cote was in a significantly worse condition immediately

after the October 2009 fall than before but that his condition leveled off and improved

between February 2010 and February 2011. Since his February 2011 fall, Mr. Cote's

condition has steadily worsened. By the time of trial, Mr. Cote was in a significant

decline and was living at a different skilled nursing facility. His deposition- at which

he was only able to testify for a half hour at a time- was admitted in the evidence, but

he was unable to attend trial.

11 45. The court finds that the medical expenses incurred by Mr. Cote and caused

by his October 10, 2009 fall were $153,719.87. 8 As a result of his injury, Mr. Cote also

incurred $ 4,470 in expenses for bookkeeping.

46. Mr. Cote experienced considerable pain and suffering in the immediate

aftermath of his fall. More importantly, his cognitive impairment and the decline in his

quality of life were accelerated by the injuries he sustained on October 10, 2009. The

court finds that Mr. Cote's damages for past, present and future pain, suffering, loss of

enjoyment of life, and loss of quality of life caused or aggravated by the October 10,

2009 fall are $ 185,000.

47. The court does not find that Mr. Cote failed to mitigate his damages.

Conclusions of Law

Based on the above findings, the court reaches the following conclusions of law:

48. Although adequate for ordinary use, the handrail was inadequate when Mr.

Cote lost his balance and grabbed the handrail, subjecting it to a sudden and significant

load in excess of 60 lbs. Given the requirements of the building code and the need for

handrails that can hold people in the process of falling, the handrail was negligently

installed in 1994.

8 This figure is reached by subtracting the cost that Mr. Cote would have incurred in moving to assisted living at Mount St. Joseph (as he had planned to do before his fall) from the cost of the medical expenses and care that he actually received from October 10, 2009 up through the end of February 2011. This is consistent with the approach used by Barbara Bate, the life care planner called as an expert by plaintiff. There is one issue with her calculation because the figure she used for the costs that Mr. Cote would have incurred if he had not fallen was based on the rate for an "independent living apartment" at Mount St. Joseph. The testimony was that Mr. Cote was planning to move to assisted living at Mount St. Joseph, and it is therefore unclear whether Ms. Bate used the correct rate. The court has given plaintiff the benefit of the doubt on this issue because there was testimony that there were various levels of assisted living at the Mount St. Joseph facility.

12 49. Although the handrail was installed by an independent contractor, the court

adheres to its ruling on the motion for summary judgment that, under Restatement

(Second), Torts § 424, Blais Builders would be liable for negligence on the part of the

independent contractor in the installation of the handrail. See May 23, 2013 order at 5.

50. Although the negligent act or omission occurred no later than 1994, the six

year statue of limitations had not expired on October 10, 2009. This is because, with

certain exceptions/ a cause of action in tort does not accrue until "the point at which a

wrongful act produces an injury".~ Dugan v. Martel, 588 A.2d 744, 746 (Me. 1991).

In this case the wrongful act occurred in 1994 but did not produce an injury until

October 10, 2009.

51. Assuming that Blais Builders owed a duty to occupants of the building that it

constructed, Blais Builders would therefore be liable for Mr. Cote's damages without

regard to whether any "continuing tort" doctrine is applicable here.

52. If the court had to reach the question of whether a "continuing tort" doctrine

is applicable in this case, it would rule against the plaintiff on that issue. As the court

has found above, none of the defendants were negligent in failing to discover the unsafe

condition posed by the inadequately installed handrails. In cases where any kind of

continuing tort theory has been proposed, the facts involved either (1) negligent actions

that may have begun outside the limitation period but allegedly continued within the

limitations period or (2) an alleged infliction of injury that began outside the limitations

period but continued during the limitation period. ~ McLaughlin v. Superintending

School Committee, 2003 ME 114 <[<[ 21, 23 n.6, 838 A.2d 782. Those situations are not

presented here.

9 One exception involves the statue of limitations in medical malpractice actions, which runs from "the date of the act or omission giving rise to the injury." 24 M.R.S. § 2902.

13 53. On its face, a ruling that Mr. Cote is not time-barred in pursuing a claim

against Blais Builders based on negligent installation of the handrail in 1994 appears to

be inconsistent with the Law Court's ruling in Dunelawn Owners' Assn. v. Gendreau,

2000 ME 94, 750 A.2d 591. The Dunelawn case, however, is distinguishable. The Law

Court found in Dunelawn that the injury occurred when the builder completed

construction and sold the unit because the injury for statute of limitations purposes

consisted of the injury suffered by the condominium association and by the purchasers

of one of the condominium units when they received a condominium building and unit

that contained material defects. 2000 ME 94 9I 12. This was true even though the

condominium association and the unit owners were not aware that they had been

injured at that time. In this case, however, Mr. Cote was not injured at the time

construction was completed or the building was conveyed to the owner; Mr. Cote was

not injured until October 10, 2009. 10

54. The court experiences considerable unease in suggesting that a statute of

limitations defense is not applicable when the act or omission took place 15 years before

the injury. However, other states have addressed this issue by enacting "statutes of

repose" that bar claims after a specified time from the allegedly negligent act or

omission even if no injury has yet been incurred. See, ~ Iowa Code § 614.1(11). 11

Maine does not have an applicable statute of repose.

55. The above discussion assumes that Blais Builders, when it constructed 3

Stickney Terrace in 1993-94, owed a duty to subsequent occupants of the building such

as Mr. Cote, at least with respect to negligence involving building code violations. On 10 Mr. Cote did not move into 3 Stickney Terrace until April2001, already more than six years after the handrail was installed. 11 Statutes of repose terminate any right of action after a specified time period has elapsed, regardless of whether there has been an injury. Bob McKinness Excavating & Grading Inc. v. Morton, 507 N.W.2d 405, 408 (Iowa 1993).

14 that issue the court adheres to its ruling on the motion for summary judgment that legal

duties imposed by building code requirements · designed to safeguard building

occupants should be enforceable by damage suits on behalf of persons the code

requirements are designed to protect. May 23, 2013 order at 5. The court therefore finds

that Blais Builders is liable to Normand Cote in this action.

56. At the same time, based on the facts set forth above, the court finds that

defendants Maurice and Jocelyn Blais and defendant M. Blais Properties LLC are not

liable.

57. Specifically, as the owners of 3 Stickney Terrace, Maurice Blais and Jocelyn

Blais would be liable for a dangerous condition in the common areas of their building if

they could have discovered the condition by the exercise of reasonable care.

Restatement (Second) Torts§ 360; Restatement (Second) Property, Landlord and Tenant

§ 17.3 12

58. As noted in the court's summary judgment opinion, there is dicta in certain

Law Court opinions that might suggest that landlords would be strictly liable for unsafe

conditions in common areas. See May 23, 2013 order at 7-8. However, the court

concludes that those statements - none of which actually mentioned strict liability -

were not intended as a complete statement of the circumstances under which property

owners are liable for unsafe conditions in common areas. In the only cases that have

directly addressed this issue, the property owner was either aware of the dangerous

condition, Anderson v. Marston, 161 Me. 378, 381-82, 213 A. 2d 48, 49-50 (1965), or there

was an express ruling that the jury was "within permissible bounds in deciding that in

the exercise of reasonable care the defendants could have and should have discovered

12 The same would be true of M. Blais Properties, LLC to the extent that the owners delegated the functions of maintenance and repair to that entity.

15 by simple and plain inspection the condition and risk involved." Horr v. Tones, 157 Me.

1, 8, 170 A.2d 144, 147 (1961) (emphasis added). The court therefore concludes that

Restatement (Second) Torts § 360 states the applicable standard for the liability of

Maurice and Jocelyn Blais and M. Blais Properties LLC as landlords in this case.

59. Plaintiff argues that building code violations, even latent and unknown code

violations, are applicable to building owners as well as builders and that therefore the

remaining defendants are equally liable with Blais Builders for the inadequately

installed handrail. To the extent that building code requirements are applicable to

building owners, this does not alter the principle that there is no doctrine of strict

liability applicable to property owners. A property owner's liability is based on

negligence. While violations of safety regulations may be evidence of negligence, they

are not negligence per se and must be evaluated, along with all the other evidence in

the case, in determining whether a defendant was negligent. See Alexander, Maine Jury

Instruction Manual § 7-69 (2013 ed.). In this case, as noted above, Maurice Blais,

Jocelyne Blais, and M. Blais Properties LLC had no knowledge of the building code

violation and could not have discovered the weakness of the handrail through the

exercise of reasonable care. The court finds that they were not negligent under the

circumstances of this case.

60. The court also rejects the plaintiff's suggestion that Maurice Blais should be

held personally liable for the negligent installation of the handrail when (1) he had no

knowledge of the improper installation; (2) he had instructed that handrails be securely

fastened and installed in compliance with the Building Code; (3) the handrail was

installed by an independent contractor; and (4) the independent contractor was hired by

Blais Builders, not by Maurice Bias personally.

16 61. In his post trial submission plaintiff contended- for the first time- that the

corporate form of Blais Builders should be disregarded. That claim was not asserted in

plaintiff's complaint. Although plaintiff's May 22, 2013 trial brief argued that that the

responsibilities of Blais Builders and M. Blais Properties LLC were intermingled, the

trial brief did not contend that the corporate veil of Blais Builders should be pierced to

hold Maurice Blais personally liable. In the court's view it is too late to raise this

argument after trial.

62. In any event, plaintiff did not prove at trial that the corporate form of Blais

Builders had been misused. Just because Maurice Blais is the sole shareholder and

principal officer of Blais Builders does not mean he is not entitled to avail himself of the

protection of conducting business in corporate form. As noted above, no proof was

offered of any misuse of corporate form or corporate assets. See Johnson v. Exclusive

Properties Unlimited, 1998 ME 244 9I 7, 720 A.2d 568. The court does not find that Blais

Builders was the alter ego of Maurice Blais for purposes of imposing personal liability.

Judgment shall be entered in favor of plaintiff and against defendant M. Blais Builders Corporation in the amount of$ 343,189.87.

If plaintiff served a notice of claim, plaintiff shall within 10 days submit that notice along with proof as to when it was served so that the prejudgment interest rate may be determined. Otherwise prejudgment interest shall run from the filing of the complaint at 3.3%. Post judgment interest shall run at 6.16%.

Judgment shall be entered against plaintiff and in favor of defendants Maurice Blais, Jocelyne Blais, and M. Blais Properties, LLC.

The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

17 Dated: November~ 2013

Thomas D. Warren Justice, Superior Court

18 NORMAND A COTE VS M BLAIS PROPERTIES LLC CASE #:PORSC-CV-2011-00545

009607 ATTORNEY: BIGOS, MICHAEL T ADDR: 129 LISBON STREET PO BOX 961 LEWISTON ME 04243-0961 FOR:NORMAND A COTE PL RTND 12115/2011

003980 ATTORNEY: DEL BIANCO, H PETER ADDR: 477 CONGRESS STREET 14TH FLOOR PO BOX 15215 PORTLAND ME 04112- 5215 FOR:MAURICE G BLAIS DEF RTND 07/24/2012 FOR:JOYCEL YNE B BLAIS DEF RTND 07/24/2012 FOR:M BLAIS PROPERTIES LLC DEF RTND 12115/2011 FOR:M BLAIS BUILDERS CORPORATION DEF RTND 07113/2012