Brubach v. Almy

• Decision Date: 16 January 1987
• Citation: Brubach v. Almy, 520 A.2d 334 (Me. 1987)
• Parties: Alan D. BRUBACH v. Donald C. ALMY.
• Court: Maine Supreme Court

Page 334

520 A.2d 334

Alan D. BRUBACH v.Donald C. ALMY.

Supreme Judicial Court of Maine.

Argued Nov. 6, 1986.

Decided Jan. 16, 1987.

Hunt, Thompson & Bowie, James M. Bowie(orally), Portland, for plaintiff.

Richardson, Tyler & Troubh, John S. Whitman(orally), Portland, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN and CLIFFORD, JJ.

CLIFFORD, Justice.

The plaintiff, Alan Brubach, sustained personal injuries when he fell from the roof of the defendant's ski chalet, which Brubach was helping to build.Brubach appeals from a judgment of the Superior Court, Sagadahoc County, denying his motions for a judgment notwithstanding the verdict and a new trial.He assigns several points of error, including erroneous jury instructions, and contends that the jury's verdict is contrary to the clear weight of the evidence.He also contends that the court abused its discretion by failing to grant his motion for a mistrial following the defendant's improper attempt to impeach Brubach's credibility through use of a prior conviction.Finding no reversible error, we affirm.

The jury would have been warranted in finding the following facts.In early October 1982, the defendant, Donald Almy, a sales manager for an environmental engineering firm, hired the plaintiff, Alan Brubach, to work as a carpenter building a ski chalet on land Almy owned in the Carrabassett Valley near the Sugarloaf skiing resort.Brubach, who was paid $200 weekly, was to assist Almy's son, Tony, who was in charge of the project.Brubach and Tony lived together in a neighboring camp and worked together on the ski chalet during the week.On weekends Almy and other members of his family as well as friends came to help with the construction.

It rained Friday evening, November 5, 1982.The following morning when Almy, Brubach, Tony and others arrived at the work site, intending to shingle the roof, they discovered that everything was wet.After some conversation it was decided that they would have to remove the wet tar paper Brubach and Tony had laid on the roof as an underlayment the night before in anticipation of shingling.Tony drove to nearby Kingfield to buy fresh tar paper, Brubach climbed up on the roof and began removing the wet tar paper, and the others went to work inside the ski chalet.

The danger posed by wet tar paper, which is more slippery than dry tar paper, was known and obvious to, as well as discussed by, all the principals before Brubach climbed up on the roof.As Brubach worked, he noticed that the roof was slippery, but continued to work nevertheless.

The roof was pitched.The previous evening Tony and Brubach had nailed rough-hewn two-by-four cleats to provide footing.As Brubach removed the wet tar paper, he removed the cleats as well.Brubach was near the peak of the roof when he fell.

Of his fall and of its cause Brubach remembers nothing.No one saw him fall.Almy, who had left the ski chalet to get something from his automobile, discovered Brubach on the ground dazedly struggling to his feet.Brubach injured his neck and back, necessitating a long and painful recovery.

At trial Almy unexpectedly attempted to impeach Brubach's credibility by using a prior conviction for theft.Brubach's prompt objection prevented the jury from hearing more than his denial that he had ever been convicted of a criminal felony or a crime involving dishonesty.At the sidebar and chambers conferences that ensued it transpired that Almy had notified neither the court nor Brubach that he intended to bring up a prior conviction.Moreover, Almy came armed with only an abstract of a conviction for theft from the State Bureau of Identification.The abstract did not indicate the nature of the theft.The court delayed a final ruling until the precise nature of the theft could be determined.When on the following day it was discovered that the conviction was for joyriding, see17-AM.R.S.A. § 360(1983), the court sustained the objection and offered to give a curative instruction to the jury.Brubach declined the offer and moved for a mistrial.The court denied the motion.

The court instructed the jury on the duties of employers to employees and of possessors of land to invitees.Over Brubach's objection the court gave instructions on the common law defenses of contributory negligence and assumption of the risk.The jury answered in the negative the first question on the verdict form, whether Almy was guilty of negligence that was a proximate cause of Brubach's injury.The court denied Brubach's motions for a judgment notwithstanding the verdict and a new trial.This appeal followed.

I.

Brubach contends that the court erred in refusing to give an instruction that Almy as a possessor of land had an affirmative duty of care to provide Brubach as an invitee with safe surroundings.Although the court included in its instructions sections 343and343A(1) of the Restatement (Second) of Torts (1965), ¹ as well as a brief paraphrase of these sections, the court over Brubach's objection refused to give Comment f to section 343A.²

We do not decide whether in circumstances of obvious or known danger sections 343and343A without Comment f are insufficient to inform the jury of the scope of the duty of a possessor of land, but seeIsaacson v. Husson College, 297 A.2d 98, 104-05(Me.1972), because we think Brubach misconstrues the nature of his relationship with Almy.Almy's relationship with Brubach was essentially that of employer-employee, not possessor-invitee, and Almy's legal duty towards Brubach must be gauged accordingly.

The court correctly instructed the jury that an employer had a legal duty to furnish his employees with a reasonably safe workplace.SeeHurd v. Hurd, 423 A.2d 960, 962(Me.1981);Wilson v. Gordon, 354 A.2d 398, 400-01(Me.1976).Whether the danger causing the injury was obvious is a factor to be considered in determining the parties' relative degrees of negligence under the comparative negligence statute, 14 M.R.S.A. § 156(1980).Hurd, 423 A.2d at 962;see alsoFerguson v. Bretton, 375 A.2d 225, 227(Me.1977).Brubach neither challenged nor requested the court to amplify these instructions.The court adequately articulated these principles insofar as they bore on Almy's duty as an employer.

Brubach relies on our recent decision, Williams v. Boise Cascade Corporation, 507 A.2d 576(Me.1986), as authority for the proposition that Almy's capacity as the possessor of land is the controlling consideration.In Williams we held that the trial court there erred in not instructing the jury that the defendant possessor of land had a duty to warn or take corrective measures if the possessor should anticipate that harm would befall an invitee despite the invitee's knowledge of the dangerous conditions or despite the obviousness of the condition.Id. at 577.But Williams, the plaintiff in that action, was an employee of a contractor to whom the defendant corporation had awarded a contract to install braking devices on its premises.Unlike Brubach, Williams was not employed directly by the corporation.Moreover, the instructions in Williams were erroneous because the court said in effect that there was no duty to warn if the danger was obvious and that the landowner's duty was limited to providing warnings rather than being required to take other steps to protect invitees.Id. at 578.Therefore our holding in Williams is not directly applicable to this case.

In testing for error in the giving of, or refusal to give, instructions, the correctness of the action of the trial court must be determined from a review of the charge in its entirety.Towle v. Aube, 310 A.2d 259, 266(Me.1973).Having reviewed the court's instructions in their entirety, we find that the court adequately apprised the jury of Almy's duty as Brubach's employer.

II.

Almy concedes that Brubach was an employee and not an independent contractor.Brubach argues that under the applicable provisions of the Workers' Compensation Act prevailing at the time of the accident that Almy, who had not secured workers' compensation insurance coverage, was precluded from asserting the common law defenses of contributory negligence and voluntary assumption of the risk under 39 M.R.S.A. §§ 3 & 21(1)(1978).³Nevertheless, simply because Brubach was an employee and not an independent contractor did not automatically entitle him to coverage under the Act.

Brubach came within the class of employees excluded by the since abrogated exception provided by 39 M.R.S.A. § 2(5)(A)(2)(1978):

"Employee" shall include ... every person in the service of another under any contract of hire, express or implied, oral or written, except: ...

(2) Any person whose employment is not in the usual course of the business, profession, trade or occupation of his employer.

Sometimes called the nonbusiness exemption, see1C A.Larson, Workmen's Compensation§ 50.21(1986), this exception excludes employees who would otherwise be entitled to protection under the Act, but whose employment, usually temporary, is of a character different from the ordinary business of his employer.SeeEddy v. Bangor Furniture Co., 134 Me. 168, 183 A. 413(1936);Peters v. Michienzi, 385 Mass. 533, 432 N.E.2d 696(1982).

Brubach contends on appeal that the exception appearing in subsection 2(5)(A)(2) is simply a paraphrase for independent contractor.He cites in support of his thesis Madore v. Liberty National Bank, 289 A.2d 36(Me.1972), and points to the later enactment of P.L. 1983, chs. 402 and 554 deleting the language appearing in subsection 2(5)(A)(2) and replacing it with the words "[a]n independent contractor."We cannot agree with this analysis.

The issue in Madore, as in many of the cases both preceding and following it, ⁴ was whether an injured worker was an employee or an independent contractor.This issue is addressed as a threshold matter before it can be determined whether the...