For Plaintiff: Jennifer Begel, Esq., Friedman & Babcock, Portland, ME.
For Defendant: Angela Farrell, Esq., Mitchell & Stearns, Bangor, ME.
JUDGEMENT ON LIABILITY
The Parties had agreed to bifurcate the issue between liability and damages and to proceed to trial jury-waived on the liability issue. Accordingly, the case was heard, the Parties reserving the right to proceed to the damage issue if the right thereto was established at this trial.
The Court has in mind certain well settled legal concepts.
1. Since this is a negligence case, the Plaintiffs have the burden of proof under the preponderance of all the admissible evidence rules and must so demonstrate the liability of the Defendant.
2. The Defendant, as a business invitor, owes a duty to his invitees (of which Patricia Durepo is one) to exercise reasonable care to ensure that his business premises are reasonably safe for use by his patrons. See, Seiders v. Testa, 464 A.2d 933, 935 (Me. 1983)
3. If an employee of the Defendant was negligent in the performance of assigned duties and the Plaintiff was injured as a result thereof, the Defendant is vicariously liable.
4. Since the Defendant has asserted as an affirmative defense the allegation that Patricia Durepo's "negligence is equal to or greater than the negligence, if any, of Darrell Adams", thus invoking the comparative negligence doctrine, the burden of proving the comparative negligence of Patricia Durepo falls upon the Defendant "who must support this burden by a fair preponderance of the evidence". Crocker v. Coombs, 328 A.2d 389, 392 (Me. 1974), cited with approval in Herrick v. Theberge, 474 A.2d 870, 875 (Me. 1984)
We now turn to the facts.
The Plaintiffs' only witness in chief was Patricia Durepo. The Defendant was the operator of a beauty parlor in Caribou. In July, 1983 Mrs. Durepo made an appointment for a "perm" and entered the Defendant's establishment, where she had been a patron once before. She was then taken by an employee, Donna Sheridan, into a small interior room and seated in a type of chair used by beauticians which operated on a swivel. Having put in place "curling rods", she was told to follow the operator into another room for further work. As she did so, and on leaving the room, she fell and was injured. What caused the fall is in dispute.
Mrs. Durepo testified her left foot was caught in a clothes rack and, as a result, "I came out backwards". She was wearing rubber-soled "flip-flops" for shoes, which had a thong running between her large and second toe, and without any back. The argument is that the rack, which was light and about five (5) feet tall with four carved legs, being in corner at the left as Ms. Durepo exited the room, made the furniture placement in the room too "tight" and, therefore, not reasonably safe. Alternatively it is argued that the operator should have followed Mrs. Durepo from the room rather than preceding her, as she did, thus insuring a safer exit.
The Defendant testified he observed the fall at close range and attempted to break the fall but was unable to do so. He attributed the fall to the "flip-flops" since one had come off when she arose from the beautician's chair and she had put the thong between the wrong toes and, as a result, had stepped on the thong with the other foot, thus causing her to fall. Mrs. Durepo then said to Defendant, "I tripped on the coat rack," and his reply was emphatic denial of that.
The Court viewed a video deposition of Donna Sheridan, and the deposition, taken in March, 1991, was introduced in evidence. (Defendant's Exhibit 2) Mrs. Sheridan had 22 years experience as a licensed beautician, but had only been employed by Defendant for a few weeks. During the "perm" one of Mrs. Durepo's "flip-flops" had come off and the chair had to be lowered so she could replace it. Contrary to Mrs. Durepo, who said she had turned the chair around to face the door, Mrs. Sheridan said she did that preceding leaving the room, so that Mrs. Durepo faced the door on rising from the chair.
Mrs. Sheridan described the rack as being upright after the fall and there was no evidence to the contrary. In her judgment, if someone had tripped over it, the rack, being light, would have fallen down.
Mrs. Sheridan, with her experience, testified she had no prior complaints from customers upon entering or exiting that particular room and opined that the shop was "neat and tidy".
The Court is not satisfied that the Plaintiffs have met their burden of proving the causal negligence of the Defendant, either as a business invitor, or as the employer of Donna Sheridan. The Court finds that the facts preponderate in favor of the Defendant, in all theories of liability.
Namely, the Court finds the Defendant did use due care to maintain a reasonably safe beauty parlor for use by his patrons, and the coat rack did not cause the Plaintiff to fall. Additionally, Defendant's beautician, in turning the chair around to face the point of exit so that Plaintiff could see where she was going, and by proceeding before her to the next room, acted prudently and carefully. Whether the Plaintiff's tripping over her "flip-flops" was her own negligence is not material to the decision because the Defendant did not cause her to do so.
The entry is: Judgement for Defendant.1
1. Because the case was bifurcated and, there being no liability found against Defendant, a hearing on damages is not necessary, thus leaving the above decision as a final Judgement. [Back]