Lavoie v. Burns

Maine Superior

Lavoie v. Burns

DecidedAugust 17, 2009

DocketKENcv-08-106

StatusUnpublished

This text of Lavoie v. Burns (Lavoie v. Burns) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lavoie v. Burns, (Me. Super. Ct. 2009).

Pincite

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CIVIL ACTION DOCKET NO. CV-08-106 f /1/) -- 'c (V t: 1\ / _ ", ')

JEFFREY C. LAVOIE,

Plaintiff

v. JUDGMENT

RICHARD BURNS, d/b/ a DICK'S GARAGE AND TOWING SERVICE,

Defendant

Findings

On 12/28/06, the plaintiff was employed by Progressive Insurance. He traveled

to the defendant's premises to inspect a vehicle that had been towed there after an

accident. (Pl.'s Exs. 9A, 9B.) The plaintiff had been to the garage two or three times

before but had never walked around to the back of the main garage.

The plaintiff drove to the upper level to look at the totaled vehicle and drove

back to the front of the garage. The claimant involved in the case did not arrive. The

plaintiff approached defendant Burns and asked to use the bathroom. Defendant Bums

usually sends people to the gas station to use the bathroom but he told the plaintiff he

could go "out back." The plaintiff assumed there was a john or port-a-potty behind the

garage.

The plaintiff walked to the right side of the garage and walked along the back of

the main garage to the second garage but found no bathroom facility. He finally

relieved himself in the woods behind the second garage. He then walked in a straight

line toward his car, which was parked in front of the main garage. (Pl.'s Ex. 7.) As he 2

approached the grade near the back of the main garage, he determined that the pieces

of plywood he encountered were ramps to be used to walk down the embankment.

(Pl.'s Exs. 8A-8F, 9C; Def.'s Exs. lA-IF.) The ramp on the left was worn. The ramp on

the right was in front of the plaintiff. The plaintiff was paying attention but not

overanalyzing the situation.

According to defendant Burns, the ramp on which the plaintiff walked was a

toolbox taken from his truck. Defendant Bums placed the box where it was located on

12/28/06 because that was "the best place to put it" and he did not know what else to

do with the box. He did not turn the box upside down because he wanted to protect the

box. Defendant Burns used the left ramp as a walkway previously. (Pl.'s Ex. 8E.)

The plaintiff placed his left leg on the larger ramp on the right and began to slide

down the ramp. His left leg folded under him and stopped the fall. He pulled his leg

from under him and experienced significant pain. After he fell and was lying on the

ramp, he saw a very thin layer of clear ice on the ramp. There was snow on the ground

surrounding the ramps. (Pl.'s Ex. 8B.)

He called 911 on his cell phone. The plaintiff remained on the ground on his

back until the ambulance arrived approximately 15 minutes later. The plaintiff

instructed the rescue workers to stay off the ramps. The workers examined his leg and

began intravenous pain medicine.

The plaintiff was transported to the MaineGeneral Medical Center where he was

diagnosed with a displaced left fibular fracture with medial-sided ligamentous injury.

(Pl.'s Ex. 3.) The ankle was placed in a splint and the plaintiff was given crutches and

pain medicine. His pain and discomfort continued to be significant. He saw Dr. Bush

on 1/2/07 and underwent surgery to repair the ankle on 1/5/07. (Pl.'s Exs. 1-4.) He

2 3

was in a variety of casts for months without weight bearing and on crutches. The

plaintiff was referred to physical therapy but chose not to follow that recommendation.!

The plaintiff was unable to enjoy his usual activities, such a cooking, hiking,

tennis, and masonry. The ankle continues to be painful and weak on occasion and is

affected especially by the cold and damp weather and over-exertion. When the ankle is

painful, the plaintiff takes pain medicine, raises his leg, soaks the ankle in ice water, and

tries to "stay off" his leg.

As a result of his fall, the plaintiff incurred medical bills in the amount of

$10,272.21 (Pl.'s Ex. 5.) and lost wages in the amount of $5,497.49. (Pl.'s Ex. 6.) He has

proved he is entitled to an award of $35,000.00 for pain, suffering, and loss of enjoyment

of life.

Conclusions

A property owner has a duty "to use ordinary care to ensure that the premises

were reasonably safe for the plaintiff, guarding him against all reasonable foreseeable

dangers, in light of the totality of the circumstances." Baker v. Mid Maine Medical

Center, 499 A.2d 464, 467 (Me. 1985). The defendant simply told the plaintiff he could

go "out back" to use the bathroom and gave no further instructions. After the plaintiff

circled the area looking for a bathroom, the plaintiff returned by the most direct route to

his car. A reasonable person in the plaintiff's position would have concluded that the

ramps were placed on the embankment to assist in walking down the embankment.

Defendant Burns agreed that he uses the ramp for that purpose. (Pl.'s Ex. 8E.) The

defendant's position, apparently, is that the plaintiff chose the wrong ramp. The photos

1 The defendant did not raise the issue of failure to mitigate damages.

3 4

make clear that the ramp chosen by the plaintiff appears to be in better condition and

the more appropriate choice. (Pl.'s Exs. 8C, 8D, 8F; Def.'s Ex. lB.)

The plaintiff had "the right to assume that the premises were reasonably safe for

his use" but "cannot rely blindly on the presumption of the discharge of one's duty, but

must at all times exercise ordinary care for his own safety." Isaacson v. Husson College,

297 A.2d 98, 103 (Me. 1972). Based on the snow on the ground on this December day in

Maine, the plaintiff could have exercised more care in determining whether ice would

be located on the ramp. The defendant's negligence, however, in placing the ramps on

the embankment, failing to make them reasonably safe under the circumstances, and

failing to warn the plaintiff not to accept the obvious invitation to use them exceeds the

negligence of the plaintiff. rd.

The entry is

Judgment is entered in favor of the Plaintiff and against the Defendant on the Plaintiff's Complaint in the amount of $45,769.70 plus prejudgment interest at the rate of 4.42%, post-judgment interest at the rat of 6.40%, and costs.

Date: August 17,2009 ancy Mills Justice, Super'

4 JEFFREY C LAVOIE - PLAINTIFF SUPERIOR COURT KENNEBEC, ss. Attorney for: JEFFREY C LAVOIE Docket No AUGSC-CV-2008-00106 JAMES C HUNT - RETAINED 03/21/2008 ROBINSON KRIGER & MCCALLUM 12 PORTLAND PIER DOCKET RECORD PO BOX 568 PORTLAND ME 04112-0568

vs RICHARD BURNS - DEFENDANT

Attorney for: RICHARD BURNS JOHN WHITMAN - RETAINED 04/11/2008 RICHARDSON WHITMAN LARGE & BADGER 465 CONGRESS STREET PO BOX 9545 PORTLAND ME 04112-9545

Filing Document: COMPLAINT Minor Case Type: OTHER NEGLIGENCE Filing Date: 03/21/2008

Docket Events: 03/21/2008 FILING DOCUMENT - COMPLAINT FILED ON 03/21/2008 04/30/08 - EXHIBIT A TO COMPLAINT FILED

04/15/2008 Party(s): RICHARD BURNS DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 04/11/2008 Defendant's Attorney: JOHN WHITMAN FIRST SET OF INTERROGATORIES AND FIRST REQUEST FOR PRODUCTION OF DOCUMENTS SERVED ON JAMES HUNT, ESQ. ON 4/10/08.

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