Isaacson v. Husson College

• Decision Date: 12 February 1975
• Citation: 332 A.2d 757
• Parties: Lawrence ISAACSON v. HUSSON COLLEGE.
• Court: Maine Supreme Court

Page 757

332 A.2d 757

Lawrence ISAACSON v. HUSSON COLLEGE.

Supreme Judicial Court of Maine.

Feb. 12, 1975.

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

Rudman, Rudman & Carter, by Gene Carter, John M. Wallach, Bangor, for defendant.

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

WERNICK, Justice.

We review this case for the second time.

Previously, we sustained the appeal of Lawrence Isaacson, from a Superior Court (Penobscot County) judgment in favor of defendant, Husson College. The judgment was entered after the jury trial of plaintiff's civil action for damages caused by negligence of the defendant culminated in a verdict for defendant directed by the presiding Justice at the conclusion of plaintiff's case in chief.

On retrial, the jury returned a verdict awarding plaintiff damages in the amount of $12,000.00. Motions of defendant for judgment n. o. v. and for a new trial were denied. Defendant has appealed from the judgment for plaintiff entered on the verdict.

We deny the appeal.

The evidence supports jury findings of these facts.

From Monday, February 24, 1969, to the afternoon of Wednesday, February 26 1969, a major storm blanketed the Bangor area, site of defendant College, with approximately 42 inches of snow. The College cancelled Wednesday's classes. During and after the snowfall the maintenance personnel of defendant were engaged in clearing the snow from the roads and walkways of the College.

Early in the evening of Thursday, February 27, 1969, plaintiff, who resided in Hart Hall, a campus dormitory, went to eat dinner in the College refectory, Carlisle Hall. He used a pathway connecting Hart and Carlisle Halls. Plaintiff had traversed this same pathway in both directions several times each day since the preceding Monday. On each of these occasions plaintiff had noticed that the walkway had been plowed bare except for some snow which had blown from the high snowbanks bordering the pathway. Plaintiff never observed any ice along his route.

After plaintiff had finished his dinner and was returning to Hart Hall he suddenly lost his footing, despite his precautions of wearing rippled-soled shoes and walking in a 'shuffling' manner, and fell forward injuring his right knee. When he fell plaintiff felt and saw that he had slipped on a patch of ice not previously visible to him becaue of the absence of illumination in the area.

Plaintiff was 'in extreme pain' and required assistance from several friends to enable him to return to his room. While he was returning to the dormitory, plaintiff 'felt a crunching sound under (his) feet . . . like rock salt or sand.' Plaintiff recalled no such substance in the area of his fall.

During the night of February 27, 1969 plaintiff administered hot and cold towels to his injured knee '. . . to ease the pain.' Finally, on Saturday, March 1, 1969, because still suffering severe pain, plaintiff went to the Eastern Maine Medical Center. His knee was swollen, its motion restricted, and there was fluid in the knee joint ('either blood or synovial fluid'). X-rays revealed no bone damage. A doctor who examined plaintiff at the hospital was

'. . . sure that . . . (plaintiff) had a torn cartilage, and . . . was going to have to have surgery done on it.'

The ultimate diagnosis was that plaintiff had sustained 'a torn lateral semilunar cartilage in his right knee.'

As initial therapy, plaintiff's leg was immobilized in a cast, but the cast caused excessive pain and was removed a few days later, padding and bandages being substituted. For several weeks plaintiff used crutches.

In May of 1969 plaintiff returned to his home in New York and underwent surgery on his knee. He remained immobilized in the hospital for one week. He left the hospital in a wheel chair and his right leg was immobilized for three weeks thereafter, plaintiff using crutches to assist him in moving about. Notwithstanding a long rehabilitative program, involving whirlpool treatments and weight lifting, plaintiff was left with a twenty-five to thirty percent 'permanent impairment' of the right knee. His right knee continues to swell in the joint and to cause him pain whenever plaintiff engages in sports activities.

We find without merit defendant's claim on appeal that the evidence is legally inadequate to establish that defendant is legally liable to plaintiff.

Plaintiff's testimony at the second trial was essentially as he had testified at the original trial. Our decision in Isaacson v. Husson College, Me., 297 A.2d 98 (1972) establishes, precedentially, that plaintiff's testimony itself justifies a jury verdict of defendant's liability. Unless other evidence was adduced at the second trial sufficient to override the force of plaintiff's testimony as a matter of law, the evidence was legally sufficient to support the jury's verdict on liability.

The only additional evidence bearing on liability was given by Eugene Moore, Jr., the Director of defendant's physical plant. He testified concerning the efforts of defendant's maintenance personnel to cope with the storm conditions prior to and at the time of the incident causing plaintiff's injury.

Analysis of Mr. Moore's testimony reveals that it adds weight to plaintiff's testimony and, instead of establishing defendant's non-liability as a matter of law, confirms that liability was for the jury to decide.

This is plain from the following facts to which Mr. Moore testified. (1) Prior to the event in which plaintiff sustained his injury, the College maintenance crew had sanded the campus roads but had omitted to sand the campus walkways. (2) Lack of illumination of the walkways connecting Hart and Carlisle Halls caused the area in which plaintiff was walking when he slipped and fell to be 'essentially dark.' (3) At approximately 3:00 p. m. in the afternoon of Thursday, February 27, 1969, Mr. Moore had personally toured the area at which plaintiff later sustained his injury. He then noticed that no ice had yet developed from any freezing of the melting produced by the earlier application of calcium chloride to the walkway, but there was some accumulation of blown snow. (4) After Mr. Moore's 3:00 p. m. tour, the pathway was again cleared to remove this blown snow and additional calcium chloride was applied. (5) The entire snow maintenance crew of defendant was sent home at approximately 3:30 p. m. subject to being recalled to deal with changed conditions. (6) Only one inspector, a campus guard, was left to keep check, on an hourly basis, on changing conditions along the walkways. (7) Since the lone inspector was unable to operate the machinery necessary for snow and ice clearance, he had been given instructions to notify Mr. Moore so that Mr. Moore could then reassemble the maintenance crew to come from their homes to put down more calcium chloride or 'if it was real icy, cover . . . with sand.' (8) During the evening of Thursday, February 27, 1969 the temperature turned severely cold and there were high gusting winds causing blowing snow. (9) Snow melting from the application of calcium chloride, Mr. Moore acknowledged, could quickly refreeze during a drop in temperature and be covered by blowing snow to escape the attention of a single patrolling guard. (10) Mr. Moore further acknowledged that because of the bitter cold and blowing winds which developed on Thursday evening, a quick forming of ice was reasonably to be anticipated. (11) The lone inspector never called to report icing conditions and, hence, the maintenance crew stayed at home.

The foregoing aspects of Mr. Moore's testimony confirmed as a jury question (1) whether

'the condition . . . which exposed . . . (plaintiff) to an unreasonable risk of harm was present for a time of sufficient duration prior to the accident to enable the reasonably prudent person to discover and remedy it' Isaacson v. Husson College, supra, at p. 105,

and (2) whether, within the specific analysis delineated at p. 106 of said Isaacson decision, defendant's failure to remedy the condition was, in all the circumstances, a lack of reasonable care by defendant.

Defendant advances, as other points on appeal, alleged error in various rulings of the presiding Justice made before the case was submitted to the jury.

Defendant maintains that the presiding Justice committed reversible error in excluding as evidence testimony proffered by Mr. Moore concerning the dollar amount of the entirety of defendant's snow removal program.

Before this ruling was made, Mr. Moore had explained in extensive detail the nature of defendant's snow clearance efforts in general as well as on the particular occasion here involved, including relating information as to the number of personnel employed by the College for snow clearance, the type of machinery used and the procedures utilized.

The dollar cost of defendant's total snow removal program was offered as relevant to the issue of whether on the occasion in question defendant had exercised reasonable care to make the site at which plaintiff fell reasonably safe for traverse. Since the presiding Justice had permitted defendant to inform the jury fully of all that defendant had done in fact on the particular occasion, evidence as to the dollar amount of the entirety of defendant's general snow clearance program had potential to introduce many extraneous factors likely to prolong the trial and produce more confusion than enlightenment. See: Towle v. Aube, Me., 310 A.2d 259, 265 (1973). The presiding Justice, therefore, properly exercised a discretion reposing in him to exclude the evidence because such probative value as it had was heavily overborne by its countervailing tendency to impair the orderly course of the trial. Towle v. Aube, supra; Cope v. Sevigny, Me., 289 A.2d 682 (1972); State v. Bennett, 158 Me. 109, 179 A.2d 812 (1962). See: State v. Northup, Me., 318 A.2d 489, 493, 494 (1974).

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