Isaacson v. Husson College

• Decision Date: 14 November 1972
• Citation: 297 A.2d 98
• Parties: Lawrence ISAACSON v. HUSSON COLLEGE.
• Court: Maine Supreme Court

Page 98

297 A.2d 98

Lawrence ISAACSON v. HUSSON COLLEGE.

Supreme Judicial Court of Maine.

Nov. 14, 1972.

Paine, Cohen & Lynch, by William S. Cohen, Errol K. Paine, Peter M. Weatherbee, Bangor, for plaintiff.

Rudman, Rudman & Carter, by Gene Carter, Torrey A. Sylvester, Bangor, for defendant.

Before DUFRESNE, C. J., and WEBBER, POMEROY, WERNICK and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

Lawrence Isaacson was a resident student of the defendant College when, on February 27, 1969 at approximately 6:15 in the evening on his return from supper, he slipped on an icy patch and fell to the pavement in the campus walkway between Hart Hall where he roomed on campus and the dining commons provided by the College. He sustained personal injuries for which he sought compensatory damages before a jury. The defendant rested its case without introducing any evidence and its motion for a directed verdict was granted. Rule 50(a), M.R.C.P. The appeal brings to this Court the propriety of the ruling below. The appeal is sustained.

The Trial Court's underlying reasons for directing a verdict in favor of the defendant seem to be two-fold: (1) there was no duty under the law of Maine resting upon the defendant towards the plaintiff to remove a natural accumulation of ice and snow under any circumstances, and (2), even if there were such a duty, the plaintiff, by undertaking, in the face of the obvious hazard of lack of illumination, to walk the pathway in a shuffling manner though wearing ripple-sole shoes, manifested such an awareness of latent potential dangers due to weather conditions that, notwithstanding his exercise of all necessary precautions under the circumstances, he would be barred from recovery of any damages for his resultant injury, because his conduct, as a matter of law, constituted negligence proximately contributing to the accident and the plaintiff's share of accountability or fault for the mishap was equal to that of the defendant or greater than fifty percent, when considered in the light of a just and equitable apportionment of the share of responsibility between the parties. 14 M.R.S.A., § 156. We disagree on both scores.

In our assessment of the correctness of the direction of a verdict at the close of all the evidence, we must indulge in favor of the party against whom the verdict was directed very legitimate inference which the evidence would reasonably support. Stated otherwise, a verdict should not have been ordered for the defendant in the instant case if, taking the most favorable view of the evidence, including every justifiable inference, different fair-minded persons may fairly draw different conclusions from the evidence. MacLean v. Jack, 1964, 160 Me. 93, 198 A.2d 1; Aronson v. Perkins, 1967, Me., 233 A.2d 726; Moore v. Fenton, 1972, Me., 289 A.2d 698. A careful review of the record satisfies us that the evidence was such that a jury question was presented, 1) regarding the defendant's negligence, and 2) respecting the percentage of the plaintiff's fault, if any, in evaluating his share of responsibility for his injury. This is not a case where a verdict for the plaintiff could not be sustained under the law from the evidence as disclosed by this record.

In our opinion, the evidence is sufficient to warrant the following factual findings:

The plaintiff was the only person to testify at trial concerning his accidental fall on the defendant's campus walkway on February 27, 1969. A junior at Husson College at the time of his injury, Isaacson graduated from the defendant institution in May of the following year. He had been a student at the College for two years prior to the date of the accident. But the campus was a new location to which the College had relocated for the start of the 1968-1969 school year. Thus, Mr. Isaacson had resided in Hart Hall, one of the dormitories on campus, for approximately six months prior to his unfortunate fall.

A heavy snowstorm which brought about forty-two inches of snow to the area lasted from Monday, the twenty-fourth of February, to sometime in the afternoon of Wednesday, the twenty-sixth. Wednesday's classes had been cancelled. The plaintiff had observed the defendant's maintenance personnel clearing the snow from the streets and walks on campus and had himself used the particular pathway between Hart Hall and Carlisle Hall where the dining commons were located at noon and in the evening of Monday, Tuesday and Wednesday prior to the accident. On each occasion, including his Thursday noon travel for lunch, plaintiff observed the pathway plowed to the black top and generally bare, except for snow blown by the wind onto the surface over the high banks on each side of the way. He had not spotted any ice or patch of ice on any of his previous trips to the dining commons either during the storm or afterwards, except after his fall.

On Thursday evening, the day following the end of the storm, Mr. Isaacson, in the company of three other students, left his room in Hart Hall at approximately 5:00 p. m. for the purposes of going to the dining commons for super. This route which the plaintiff had been accustomed to take since his stay on the new campus was the most direct way. It started at Hart Hall sloping down some 150 feet, or more, to an apex, with the same distance sloping down from Carlisle Hall and the dining commons to that middle point. Walking on the right hand side of the pathway which was six or seven feet wide, he had not encountered any patch of ice or other difficulty from Monday to Thursday evening until his return from the commons at approximately 6:15 p.m. that evening, although on each of the trips for his evening meal there was no artificial illumination.

A jury could infer from his testimony that the lack of illumination prevented him from seeing the immediate surface of the pathway, but that, because of the banks of fresh snown on each side of the way, the general area and direction of the travel path were plainly visible to him. He testified that, after slipping and falling, while on the ground, he did see the patch of ice which he had not noticed prior to the occurrence and which extended some two feet toward the center of the pathway and was about three feet wide. He stated that there was light snow over the ice. Admittedly, the way was slippery and, because of the downward slope from Carlisle Hall to the apex in the pathway, he was shuffling along so as to maintain better footing underneath, notwithstanding the fact that he was wearing ripple-sole shoes.

Following his injury and while walking along the area from the apex to Hart Hall, he observed a crunching noise under foot and testified to the effect that the portion of the pathway from the apex to Hart Hall had been treated with some abrasive substance like rock salt. He admitted that he had not checked on any of the other possible routes to determine whether they were safer than the chosen one. On the evidentiary facts in this case, it was error to direct a verdict for the defendant.

The corporate defendant, concededly an institution of learning, was answerable in damages for actionable negligence of its servants under the pleadings in the case. The general rule of substantive law is that corporations, like individuals, are liable for their torts. Under the catch-all provisions of Rule 8(c), M.R.C.P. requiring that a party set forth affirmatively

-'any other matter constituting an avoidance or affirmative defense'-

the corporate defendant would have had to plead affirmatively and prove its defense of charitable immunity if it sought to escape liability under that doctrine. The defense of charitable immunity, like that of governmental immunity, is an affirmative defense. Barnes v. Providence Sanitarium, 1921, Tex.Civ.App., 229 S.W. 588; Pikeville Methodist Hospital v. Donahoo, 1927, 221 Ky. 538, 299 S.W. 159; White v. Central Dispensary and Emergency Hospital, 1938, 69 App.D.C. 122, 99 F.2d 355, 119 A.L.R. 1002; Foust v. City of Durham, 1954, 239 N.C. 306, 79 S.E.2d 519.

In its pre-trial memorandum, the corporate defendant raised as issues the legal status of the plaintiff on campus, the nature of the duty owed by the defendant to him, whether it failed in its duty, and, if it did, whether its breach of duty was the proximate cause of plaintiff's injuries, claiming that the plaintiff was guilty of fault barring recovery of any damages. Allowing all legitimate inferences from the evidence in favor of the plaintiff, a jury would be justified in concluding that at the time of his accident the plaintiff was a tuition-paying student in good standing attending the defendant College. The character of plaintiff's relationship with the corporate defendant at the time of the accident is the factor upon which rests the College's duty and legal liability toward the plaintiff. Isaacson had, shortly before the fall, taken his supper at the dining commons to which the College had invited him under its agreement with the students on campus. Plaintiff's relationship with the defendant, as a student attending the College, was more nearly that of a business visitor or invitee. Jay v. Walla Walla College, 1959, 53 Wash.2d 590, 335 P.2d 458; Eberle v. Benedictine Sisters of Mt. Angel, 1963, 235 Or. 496, 385 P.2d 765; Ferrell v. Hellems, 1966, Ky., 408 S.W.2d 459.

Husson College, as the owner and possessor of the campus grounds, owed the student plaintiff whose status was that of a business invitee the positive duty of exercising reasonable care to provide him with walkways which he was invited to use, or which he would be reasonably expected to use, which were reasonably safe for his use. Walker v. Weymouth, 1958, 154 Me. 138, 145 A.2d 90; Jamieson v. Lewiston-Gorham Raceways, Inc., 1970, Me., 261 A.2d 860; Orr v. First National Stores, Inc., 1971, Me., 280 A.2d 785. Even though the owner or occupier of land does not insure safety to business invitees, nevertheless he is under legal...