Lewis v. Penney
This text of 632 A.2d 439 (Lewis v. Penney) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Plaintiff Wendell Lewis appeals from a judgment of the Superior Court (Lincoln County, Bradford, J.) allowing recovery only against defendant Catherine Holcomb on a negligence claim. Plaintiff suffered injuries when knocked over by a dog owned by Holcomb and kept on property owned by defendants Robert and Waneta Penney. He sued all three defendants on claims of strict liability pursuant to 7 M.R.S.A. § 36511 and of negligence. Plaintiff argues that despite the fact that the jury found him negligent, the Superior Court erred by denying him recovery on the statutory claim. Essentially Plaintiff argues that all parties agreed that comparative negligence applied to section 3651.2 In alleged violation of that agreement, the Superior Court applied contributory negligence as a bar to the statutory claim and declined to enter judgment against any of the defendants on that claim. Finding no error, we affirm the judgment.
The facts as developed at trial may be briefly summarized as follows: In 1984 plaintiff worked as a delivery person for Wash-burn Lumber. On the day in question, he delivered doors to Robert and Waneta Pen-neys’ Freeport residence for use in their construction business. As plaintiff pulled into the Penneys’ driveway, he saw a dog chained by a shed. He stopped at the house and told the woman who signed the delivery slip that he feared the dog. The woman told him to put the doors near the trees if the dog caused him concern. Instead, plaintiff started piling them against some lumber, closer to the dog. Plaintiff testified that the dog broke loose and pounced on his lower back. Plaintiff fell backward and the door landed on top of him, causing lower back injuries. He pushed the door aside and finished piling the doors by the lumber. Then he left without reporting the incident to the woman at the house.
The dog was owned by Catherine Holcomb, the Penneys’ adult daughter who lived with them in 1984, and she alone took care of him. She kept the dog chained to a tree behind a trailer, near the Penneys’ garage and shed. She did not recall the dog being loose or being told that the dog got loose. Neither of the Penneys were home when plaintiff delivered the doors. Robert Penney worked in Bangor during the week and returned to his Freeport residence only on weekends. Waneta Penney worked from 8 a.m. to 5 p.m. at a job 45 minutes from her home. Waneta Penney testified that when she arrived home from work, the dog was on its chain.
Before the case was submitted to the jury, the attorneys discussed the statutory claim and the negligence claim in chambers. Although the record does not reveal the agreement asserted by plaintiff, it does include a discussion by the Penneys’ trial counsel to the effect that he viewed contributory fault as an affirmative defense and believed that comparative negligence applied to the statutory claim. Plaintiff’s counsel contends that the parties agreed off the record to draft a [441]*441special verdict form that would apply comparative negligence principles to both the statutory and negligence claims. Defense counsel denied reaching such an agreement. The record does reflect that following the conference, defense counsel agreed to draft a special verdict form. That verdict form did not explicitly apply comparative negligence to the statutory claim.3
The presiding justice instructed the jury that Plaintiff must prove all elements of a claim in order to recover. He instructed that as to the elements of statutory liability, a dog owner or keeper is responsible for damage done by the dog provided that the damage did not result from the injured person’s negligence. He then explained that if the jury found that one or more of the defendants qualified as an owner or keeper of the dog, then it must determine if plaintiffs injuries occurred as a result of his own negligence. The presiding justice also gave instructions on the negligence count. He then directed:
If you find by a preponderance of the evidence in this case that the defendants were at fault either under the statute, because we have got a verdict form with several questions on it that we are going to walk through with you here before we recess, or that the defendants were negligent, and if you also find from a preponderance of the evidence that the plaintiff was also negligent and you find that the negligence of each side was a proximate or legal cause of the plaintiff’s damages, then you must apply the comparative negligence law in order to apportion first the relative degree of fault or responsibility for the damage.
The jury returned the special verdict form, finding all three defendants qualified as own[442]*442er or keeper of the dog and finding defendant Holcomb negligent. The jury also found plaintiff negligent. The jury found plaintiffs total damages amounted to $426,-000 and reduced that amount to $350,000 to reflect his comparative fault. Immediately after the jury returned the verdict form, the Superior Court entered a judgment for plaintiff in the sum of $350,000, but failed to specify against whom the judgment was rendered.
Defendants moved for a judgment notwithstanding the verdict and for an amended judgment. The court then completed the judgment and allowed recovery against defendant Holcomb on the negligence count. He denied recovery against the three defendants on the statutory count. Plaintiff moved for and was denied reconsideration. He now appeals to this Court and argues in the alternative that there is insufficient evidence to find him negligent; that even if he were negligent, defendants agreed to apply comparative negligence not contributory negligence to section 3651; and finally that this Court’s decision in Pettitt v. Lizotte, 454 A.2d 329, 334 (Me.1982) (any fault on the part of plaintiff bars recovery under the dog damage statute), should be overruled.
The claim of insufficient evidence is without merit. Whether plaintiff has exercised due care is a question of fact for the jury. Seiders v. Testa, 464 A.2d 933, 935 (Me.1983). The jury’s verdict, taken in the light most favorable to the prevailing party, stands unless manifestly wrong. Id. at 934 n. 1. As long as the jury rationally could reach the result it reached and its verdict is supported by credible evidence, we will not disturb that verdict on appeal. Gurski v. Culpovich, 540 A.2d 764, 767 (Me.1988). In this case, there was evidence that plaintiff feared the dog. He was directed to a location away from the dog, yet chose to stack the doors closer to the dog. There was also evidence that the dog was not off his chain. Taken in the light most favorable to the prevailing party, the jury’s finding of plaintiffs negligence is not manifestly wrong and must stand. Seiders, 464 A.2d at 934 n. 1.
Plaintiff next argues that defendants agreed to apply comparative negligence to the statutory claim and waived the contributory negligence limitation set forth in the statute. The record does not reflect such an agreement and the record controls. Neither the verdict form nor the court’s instructions establish the existence of an agreement to apply comparative negligence to the statutory claim.
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Cite This Page — Counsel Stack
632 A.2d 439, 1993 Me. LEXIS 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-penney-me-1993.