Law Court upholds SJ in premises liability suit

On Thursday, July 7, 2016, the Law Court (Hjelm, J.), in Estate of Smith, et al v. Salvesen, 2016 ME 100, affirmed summary judgment entered by the Cumberland County Superior Court (Mills, J.) in a premises liability case in which the Estate of Smith (hereinafter “the Estate”) alleged negligence wrongful death. In its holding, the Court held that summary judgment was appropriate where the Estate failed to qualify its witness as an expert based on particular statements, and where the Estate failed to produce evidence sufficient to survive a prima facie showing of causation.


In October 2012, Lois Smith and her husband, Eugene, traveled to Maine where they had made reservations to stay at the Maine Farmhouse—a guesthouse owned and operated by Timothy Salvesen in Woodstock, Maine. Where the Smiths had made their reservations through a third party, they did not receive any specific information about their accommodations or personally speak to Salvesen. Upon arriving at the Farmhouse, the Smiths selected a second-story room and settled in. Unbeknownst to the Smiths, the room they had selected was a second-story suite that was connected to a first story living area by way of a private staircase. That night the Smiths slept in the second-story suite. The following morning, Mr. Smith was awakened by a “loud crash” and the sound of his wife scream. Mr. Smith began searching for his wife throughout the suite when, for the first time, he noticed the private staircase leading to the first floor living area. Mr. Smith found his wife at the landing of the staircase, bleeding from her head. Ms. Smith died the next day from her injuries.


In September 2013, the Estate filed a complaint against Salvesen alleging negligence and wrongful death due to an “unreasonably dangerous” premises maintained at the Farmhouse—specifically that “the private staircase did not conform with applicable safety standards,” and that “the defects in the staircase were a proximate cause of Lois Smith’s fatal injuries.” In October 2014, Salvesen moved for summary judgment, arguing that the Estate had failed to produce evidence sufficient to support a claim that any alleged negligence by Salvesen caused Ms. Smith’s fall. Specifically, Salvesen noted that there were no witnesses to attest to how or from where Ms. Smith fell. In support of this claim, Salvesen cited an October 2013 deposition of Mr. Smith in which Mr. Smith stated that he was asleep and did not “have the slightest idea” whether his wife was descending the staircase when she fell. Additionally, Salvesen cited deposition testimony of the Estate’s safety expert that although the top of the staircase violated safety standards, the expert was not personally aware of whether Ms. Smith traversed this offending portion of the staircase. In response, the Estate filed an additional statement of fact in which it asserted that because Mr. Smith had heard a loud crash, he “assumed” that his wife had fallen from the top of the stairs. Additionally, the Estate cited a 2014 affidavit of the safety expert which suggested that the staircase’s safety defects were “a critical factor in deciding whether an inference of causation can reasonably be drawn.”

In January 2015, the Superior Court entered summary judgment in favor of Salvesen, stating that the Estate had failed to make a prima facie showing of causation. In its decision, the Superior Court stated that it did not rely on the Estate’s additional statement of fact to the extent that it conflicted with Mr. Smith’s 2013 deposition testimony, and that the 2014 affidavit of the safety expert contained statements not offered in prior sworn testimony, constituting a new expert opinion improperly disclosed. The Estate appealed to the Law Court, arguing that the Superior Court erred in excluding statements contained in its statement of additional fact, and that the Estate had sufficiently generated a factual issue of causation to survive summary judgment.


Upon review, the Law Court first addressed the Estate’s argument that it was error to exclude statements contained in the Estate’s statement of additional fact. In so doing, the Court reiterated the standard in Zip Lube, Inc., that “a party will not be permitted to create an issue of material fact . . . simply by submitting an affidavit disputing his own prior sworn testimony [unless he provides] a satisfactory explanation of why the testimony is changed.’” Zip Lube, Inc. v. Coastal Sav. Bank, 1998 ME 81, ¶ 10, 709 A.2d 733. The Court reasoned that the lower court did not commit error when it stated that it would disregard the Estate’s statement of additional fact “to the extent” that it conflicted with Mr. Smith’s earlier testimony because the lower court’s statement was nothing more than a reiteration of the Zip Lube, Inc. doctrine—i.e. the lower court did not actually state that there was a conflict with Mr. Smith’s prior testimony or, if so, what it entailed. Next, the Court found that the lower court did not commit any error when it excluded the safety expert’s 2014 affidavit contained in the Estate’s statement of additional fact because the expert had failed to offer this particular opinion during prior sworn testimony. Further, the Court held that the expert’s 2014 affidavit had been properly excluded because it offered testimony that the stairway’s design defects “might support an inference of causation,” and the Estate had failed to qualify its expert as an expert in fall causation.

Next, the Court examined whether the Estate had made a sufficient prima facie showing of causation. After finding that the Estate had sufficiently satisfied the elements of duty and breach, the Court focused its inquiry on whether there was sufficient evidence to allow a jury to reasonably finds that Salvesen’s failure to remedy the defects in the staircase was a proximate cause of Ms. Smith’s fall. Although the Court reiterated that “[c]ausation need not be proved directly but may be inferred if the inference flows logically from the facts and is not unduly speculative,” Marcoux v. Parker Hannifin/Nichols Portland Div., 2005 ME 107, ¶¶25-26, 881 A.2d 1138, it held, however, that where “there is so little evidence tending to show that the defendant’s acts or omissions were the proximate cause of the plaintiff’s injuries that the jury would have to engage in conjecture or speculation in order to return a verdict for the plaintiff,” then the defendant is entitled to summary judgmentAddy v. Jenkins, Inc., 2009 ME 46, ¶12, 969 A.2d 935. Examining several cases in which an inference of causation was determined to not be unduly speculative, the Court held that the instant case was different as the evidence presented by the Estate was insufficient for a jury to reasonably infer that Ms. Smith actually fell while on the staircase or that she had encountered its dangerous defects. Put another way, the Court held that evidence is insufficient to support a prima facie showing of causation where the jury is left to speculate about whether an injured party came into contact with an allegedly dangerous condition, and therefore whether their fall was linked in any way to those conditions.

Judgment affirmed.


Michelle Allot, Esq., for the Estate

Elizabeth Germani, Esq., for Salvesen