Maine Injury, Accident, & Disability Law Blog : Maine Personal Injury Lawyer & Attorney : Joe Bornstein Law Firm : Portland Bangor Maine

The Law Court in Davis v. R C & Sons Paving, 2011 ME 88 (August 11, 2011), Gorman, J. issued an opinion affirming summary judgment entered against plaintiff Marilyn Davis who was injured when she fell in her employer's icy parking lot. Ms. Davis's employer, St. Mary's Medical Center, had contracted with the Defendant to plow and sand all parking areas and sidewalks.

The Defendant argued that under Restatement (Second) of Contracts, sec. 302, it did not owe a duty because Ms. Davis was not a "third party beneficiary" or "intended beneficiary" of the snow removal agreement. Ms. Davis countered that she was an intended beneficiary and that the plow company owed her a duty because it negligently created a dangerous condition in the parking area.

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The U. S. Supreme Court, in a 7 - 2 decision issued in Brown v. Entertainment Merchants Association, 564 U.S. _ (2011), on June 27, 2011, struck down a California ban on sales of violent video games  to children. Justice Antonin Scalia, writing for the majority, stated  that video games were subject to full First Amendment protection.

Violent depictions, stated Justice Scalia, have never been subject to government restrictions. He cited various fairy tales, such as "Snow White" and "Cinderella," in support of this proposition. The goal of the law to protect minors did not alter the constitutional analysis.

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In Wal-Mart Stores, Inc. v. Dukes, 564 U.S. _(2011) , the United States Supreme Court, divided 5 to 4, refused to allow a class action suit against the retail giant to go forward. In the majority opinion issued on June 20, 2011, Justice Antonin Scalia overturned the class certification of a million and half female employees who alleged discrimination in pay and promotions.

The Court did not determine whether the country's largest private employer actually was guilty of gender bias but only that the women could not proceed as a class.

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In Pliva, Inc. v. Mensing, 564 U.S. ___ (2011), a decision issued on June 23, 2011 by the United States Supreme Court ruled that generic drug makers cannot be sued under state law on the basis that they failed to provide adequate warning labels about potential side effects, effectively overturning U.S. appeals court rulings that allowed such lawsuits.

The generic drug companies in Pliva argued that federal law requires generic drugs to have the same labels as their brand-name equivalents.

Therefore, if the labels have been approved by the U.S. Food and Drug Administration, then such lawsuits are barred by federal law.

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The Maine Supreme Judicial Court sitting as the Law Court today upheld a jury verdict entered against the plaintiff in a product liability case arising out of an allegedly defective overhead door. Burns v. Architectural Doors and Windows, 2011 ME 61 (Saufley, C.J.)

Plaintiff was injured at work when an overhead door closed while he was walking through and struck him on the head. Plaintiff knew that the door had no safety mechanism to prevent it from stopping if it encountered an obstruction. Basically, once one pushed the "down" button, the door would slam down with no emergency shut-off switch.

Plaintiff brought suit against Defendant ADW which had installed the door and against the manufacturer of the door on one product liability count alleging defective condition because the door did not contain a safety mechanism. Neither Defendant had manufactured the allegedly defective closing mechanism. The Superior Court entered an order on the Defendants' summary judgment motions, allowing Plaintiff to go forward on a failure to warn theory although this was not included in his pleadings. Plaintiff settled with the manufacturer and proceeded to trial against ADW.

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U. S. District Court Judge Singal entered an order on April 12, 2011, in Fitzpatrick v. Cohen applying the amended Wrongful Death statute, 18-A M.R.S. sec. 2-804 in a case where the injury which allegedly precipitated the death of the decedent occurred before the amendment went into effect.

Ryan Fitzpatrick was seriously injured in a car accident on July 2, 2008. A lawsuit for damages was filed against the defendant on December 29, 2009. On February 11, 2010, Ryan was killed in a skiing accident. His father and personal representative, David Fitzpatrick, alleged that Ryan's death was caused by the 2008 car accident.

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The Maine Supreme Judicial Court, sitting at the Law Court, issued an opinion today, March 22, 2011, by Justice Jabar in Peterson v. Jhamb, 2011 ME 35. In this medical malpractice action for failure to diagnose recurrent breast cancer which had metastasized to the Plainitff's bones, the Court upheld the jury's verdict of more than $1.1M. The action was brought against Plaintiff's, Donna Seabury-Peterson, primary care doctor Kristin Jhamb, M.D. and Mid Coast Medical Group. Mr. Peterson also brought a claim for loss of consortium (companionship) of his wife.

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In Lyman v. Huber, 2010 ME 139, the Maine Supreme Judicial Court sitting as the Law Court vacated a judgment issued by the Superior Court (Cumberland County, Delahanty, J.) in favor of the plaintiff, awarding her $106,000 for intentional infliction of emotional distress (IIED) and loss of business opportunity. The unanimous Law Court opinion, written by Justice Jon Levy, found that the elements of an IIED claim, which require proof of such severe emotional distress that no reasonable person could endure it, were not met by the plaintiff.

The plaintiff and the defendant had been romantically involved for a number of years and purchased property together where the plaintiff planned to operate a horse farm. The defendant became increasingly controlling and hurtful in his behavior towards the plaintiff which placed her under a great deal of stress. She filed an eight-count complaint against him, including seeking partition of the property, damages for IIED, and "ouster."

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Kennebec County Superior Court Justice Nancy Mills found that State Farm did not have to provide insurance coverage for an accident that killed one motorist, James Carey. State Farm brought a declaratory judgment action against Roger Linton, who was driving a vehicle owned by his employer and insured by State Farm, and also against the Estate of Mr. Carey.

An independent contractor working for Jonathan Jennings. d/b/a Forgotten Stoneworks, Mr. Linton was given use of a company truck to drive back and forth to work. Although prior to the accident, Mr. Linton had used the vehicle on occasion for personal use, such excursions were to be very limited.

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Is a homeowner liable for car accidents caused by drivers who have been drinking at his home? If the owner did not supply the alcohol and did not know about the alcohol consumption, then courts have found the answer to be no.

While the Maine Law Court has yet to weigh in on this issue, recently, a Maine Superior Court decision found in favor of the homeowner, just as the Supreme Court of Wisconsin previously had.

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A sharply divided Maine Supreme Judicial Court recently overturned the nearly $3 million verdict a Cumberland County jury awarded last year to a young man with a brain injury. 

Tolliver v. Maine Department of Transportation, 2008 ME 83, (May 13, 2008). 

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