Addy v. Jenkins, Inc.

SILVER, J.,

with whom LEVY, J., joins, concurring in part and dissenting in part.

[¶ 17] I concur that Addy has presented sufficient evidence to preclude summary judgment as to Jenkins’s breach of its duty of care. However, I respectfully dissent from the remainder of the Court’s conclusions.

[¶ 18] The Court suggests that a plaintiff must present direct evidence of proximate cause in order to withstand summary judgment, and that reasonable inferences are no longer permissible. The Court also suggests that a plaintiff who cannot remember an otherwise unwitnessed accident cannot rely on any inference, however reasonable, to obtain relief. If this were the case, this would reflect a significant departure from our prior case law, it would create a new and heightened burden with respect to the causation element of tort law, and it would put plaintiffs at a disadvantage for a lack of memory that may itself be an inextricable part of the accident and the injury.

[¶ 19] The Court does not permit Addy to rely on a reasonable inference to establish proximate cause, even though he presented evidence that he came into contact with a hazardous condition caused by Jenkins. This is directly contrary to our prior precedent, which permits reasonable inferences. See Merriam v. Wanger, 2000 ME 159, ¶ 8, 757 A.2d 778, 780-81. “Proximate cause is an action occurring in a natural and continuous sequence, uninterrupted by an intervening cause, that produces an injury that would not have occurred but for the action.” Cyr v. Adamar Assocs. Ltd. P’ship, 2000 ME 110, ¶ 6, 752 A.2d 603, 604. Proximate cause is generally a question of fact for the jury. Houde, 2001 ME 183, ¶ 11, 787 A.2d at 759. At the summary judgment stage, the non-moving party is entitled to the full benefit of all favorable inferences. Curtis v. Porter, 2001 ME 158, ¶ 9, 784 A.2d 18, 22. There is no basis for denying Addy the benefit of the favorable inference that the lack of safety equipment caused him to fall.

[¶ 20] The Court disregards the well-established, methodical, and rigorous analysis we previously used to distinguish permissible inferences from speculation. See Marcoux v. Parker Hannifin/Nichols Portland Div., 2005 ME 107, ¶¶ 24-27, 881 A.2d 1138, 1145-46; Houde, 2001 ME 183, ¶ 11, 787 A.2d at 759; see also 57A Am. Jur.2d Negligence 444 (2004). Instead, the Court concludes, without any analysis, that an inference of causation would be speculative. An appropriate and adequate analysis should be conducted in the first instance by the trial court upon a motion for summary judgment. Marcoux, 2005 ME 107, ¶¶ 24-27, 881 A.2d at 1145-46; Houde, 2001 ME 183, ¶ 11, 787 A.2d at 759. If an inference is rational and flows logically from the evidence, it may be considered by the fact-finder. Estate of Hersum v. Kennebec Water Dist., 151 Me. 256, 263, 117 A.2d 334, 338 (1955). If there are multiple reasonable inferences, and they are not equally probable, the fact-finder may consider them. See Merriam, 2000 ME 159, ¶ 8, 757 A.2d at 780-81. It is only if the inferences are equally probable that the evidence is speculative. Id.; Estate of Hersum, 151 Me. at 263, 117 A.2d at 338. The fact-finder may not select *941from among equally probable inferences. Merriam, 2000 ME 159, ¶ 8, 757 A.2d at 781; Estate of Hersum, 151 Me. at 263, 117 A.2d at 338.

[¶21] The Court has come to a decision on the facts presented by Addy without the benefit of any such analysis. Instead, it simply concludes that Add/s lack of direct evidence of causation, particularly his lack of memory about the specifics of the fall, requires summary judgment in favor of Jenkins. The Court provides no discussion whatsoever of the role of inference in this case. It is entirely reasonable to infer causation given that (1) the lack of safety equipment on the staging is undisputed; (2) Addy fell while descending the staging; and (3) no competing inference has been advanced by Jenkins. As the First Circuit recently discussed at some length, it is fundamental that when a non-moving party on summary judgment presents a factually well-supported and reasonable inference, that party is entitled to the benefit of any such favorable inference at the summary judgment stage, and is entitled to have the inference presented to the jury. Chadwick v. Wellpoint, Inc., 561 F.3d 38, 46-48 (1st Cir.2009).

[¶ 22] The Court’s refusal to permit any inference on the facts presented by Addy runs counter to several of this Court’s prior decisions. The Court erroneously relies upon Durham and Houde, because there was no significant evidence of a dangerous condition in either of those cases. Durham, 2005 ME 53, ¶¶ 3, 10, 870 A.2d at 578, 580; Houde, 2001 ME 183, ¶¶ 1, 2, 12, 787 A.2d at 758, 759-60. In Durham, there was no evidence that a metal strip on a staircase created a dangerous condition. Durham, 2005 ME 53, ¶¶ 3, 10, 11, 870 A.2d at 578, 580. Durham is in stark contrast to the present case, in which Addy fell while descending staging that had no safety equipment to prevent falls.

[¶ 23] In Houde, the plaintiff alleged that she tripped on soot on the kitchen floor of a friend’s apartment, but she also testified that she thought she had cleaned up the soot completely the night before the accident and she acknowledged that she did not see soot on the floor on the day of the accident or immediately after she fell. Houde, 2001 ME 183, ¶¶ 1, 2, 12, 787 A.2d at 758, 759-60. The Court held that it would be speculative for a fact-finder to infer causation on these facts. Id. 12, 787 A.2d at 760. Addy, in contrast, was exposed to an indisputably dangerous condition when he fell while descending staging that lacked any safety equipment.

[¶ 24] This case is similar to Marcoux, in which the Court affirmed a denial of the defendant’s motion for summary judgment. 2005 ME 107, ¶¶ 26, 27, 881 A.2d at 1146. In Marcoux, the plaintiff presented evidence of a dangerous condition consisting of a slippery substance on the floor. Id. 26, 881 A.2d at 1146. The plaintiff alleged that she fell as a result of coming into contact with the slippery substance. Id. The additional facts she offered, namely that she saw a stain on the floor, that she noticed its color, that she tried to avoid it, that she felt something slippery when she fell, that she noticed the stain again after she fell, and that she noticed a stain on her pants afterwards, amount to nothing more than her assertion that she had physical contact with the stain. Id. From this, causation can be inferred. Id.

[¶ 25] Addy alleges no less when he states that he fell while descending the staging. By alleging that he fell while climbing down the staging, Addy alleges that he had physical contact with the staging. The plaintiff in Marcoux was not required to remember exactly how she came into contact with the slippery sub*942stance or where exactly she stepped, in order to avoid summary judgment. Id. ¶¶ 26, 27, 881 A.2d at 1146. For some unexplained reason, however, Addy is being denied the benefit of a reasonable inference on causation, even though the facts he alleges are legally indistinguishable from those in Marcoux.

[¶ 26] In addition, by misstating both the facts and the holdings in Thompson v. Franckus (Thompson I), 150 Me. 196, 107 A.2d 485 (1954) and Thompson v. Frankus (Thompson II), 151 Me. 54, 115 A.2d 718 (1955), the Court erroneously distinguishes this similar and controlling case. A detailed discussion of the Thompson decisions is warranted due to the significance and consequences of the Court’s error. Thompson was a single case with two appeals; the facts are recited in the first appeal. Thompson I, 150 Me. at 197-98, 107 A.2d at 486. The plaintiff3 fell down the common stairs of an apartment building belonging to the defendant. Id. The plaintiff had visited a tenant and was leaving after dark. Id. at 197,107 A.2d at 486. There was no lighting in the common stairwell. Id. at 197-98, 107 A.2d at 486. At the top of the stairs, sometime before the plaintiff actually fell, she reached for a handrail but found there was none. Id. at 197, 107 A.2d at 486. She did not begin her descent at that time. Id. at 197-98, 107 A.2d at 486. Rather, she waited while the tenant went to get a match. Id. at 198, 107 A.2d at 486. She then found a matchbook in her purse, and, while the tenant was still gone, she lit a match and started down the stairway. Id. The linoleum on the treads of each stair was badly worn, which created a hazard. Id. In taking a step, the plaintiff tripped and fell the length of the stairway. Id.

[¶ 27] The first trial resulted in a jury verdict for the plaintiff. Id. at 197, 107 A.2d at 486. The defendant appealed, and the Court ordered a new trial for the sole reason that the jury had been given no instruction on the landlord’s duties regarding the common stairway. Id. at 199-202, 204, 107 A.2d at 487-89. The evidence presented on retrial was not materially different from that presented in the first trial. Thompson II, 151 Me. at 55, 115 A.2d at 718. After the second trial, the court granted a directed verdict for the defendant. Id. This Court vacated the judgment, noting that the jury could have found both that the landlord had negligently failed to repair the linoleum and that this dangerous condition was aggravated by the lack of any lighting. Id. at 57, 61, 115 A.2d at 719, 722. The Court held that the defendant’s negligence was a jury question on this evidence. Id. The Court also held that the plaintiffs contributory negligence was a jury question. Id. at 57, 115 A.2d at 719-20.

[¶ 28] The majority now errs in stating that the lack of a handrail was significant on the issue of causation in the Thompson decisions. The lack of a handrail was not discussed, or even mentioned, as a causal factor in either decision, probably because the plaintiffs discovery of the lack of a handrail preceded her accident by some period of time. Thompson I, 150 Me. at 197-98, 107 A.2d at 486. Thompson II concerned itself only with the deteriorated linoleum and the effect of that condition on the landlord’s duty to light the stairwell. Thompson II, 151 Me. at 57, 115 A.2d at 719.

[¶ 29] A side-by-side comparison of the facts of Thompson with those presented by Addy demonstrates that the similarities are compelling. In Thompson, the plaintiff attempted to descend the stairs of an apartment building. Thompson I, 150 Me. *943at 197-98, 107 A.2d at 486. Addy attempted to descend the staging. In Thompson, the stairs were in a dilapidated condition, thus presenting a safety hazard. Thompson I, 150 Me. at 198, 107 A.2d at 486. Likewise, Addy was faced with a safety hazard upon his descent of the staging because it was not equipped with safety equipment. In Thompson, the plaintiff tripped and fell as she was descending the stairs. Id. Addy fell as he was descending the staging. There is no rational basis for distinguishing the facts in Thompson from those presented by Addy.

[¶ 30] The Court’s erroneous evaluation of the Thompson decisions gives rise to a second problem as well: Addy, like the plaintiff in Thompson, lacks a particularized memory of the accident, but, unlike the plaintiff in Thompson, Addy’s case has been decided against him on summary judgment. Addy is put at a disadvantage due to his lack of memory, even though it may be that the accident itself affected his ability to both perceive what was happening during the accident and remember it afterwards. Depriving Addy of a claim on this basis, especially when there is evidence sufficient to withstand summary judgment on Jenkins’s breach of duty to provide safety equipment, runs directly against our decision in Thompson II:

[Defendant's counsel contend that “if the plaintiff, who knew and could see what she was doing, cannot tell the jury what caused her to fall, how can a jury answer this question without speculation, conjecture or guessing?” The fallacy of this argument is readily apparent. A plaintiff may under many circumstances be completely unable to remember or recount or explain an accident, but may nevertheless recover if the deficiency is met by other reliable evidence.... A jury cannot base their conclusions upon guess or speculation, but they are entitled to draw reasonable inferences and their verdict must stand if the evidence is such as to justify in their minds a reasonable belief of the probability of the existence of the material facts.... To hold otherwise would be but to invite perjury on the part of plaintiffs who in all honesty do not know or cannot recall exactly what did happen.

151 Me. at 58-59, 115 A.2d at 720 (quotation marks omitted). In Thompson II, the plaintiff thus was permitted to go before a jury notwithstanding her lack of memory about the accident. Id. Similarly, the defendant in Rodrigue v. Rodrigue, 1997 ME 99, ¶¶ 14-15, 694 A.2d 924, 927, was not entitled to judgment as a matter of law, even though the plaintiff could not remember exactly how the accident happened, but could only remember that she slipped when she stepped on debris on the stairs. Addy should not be deprived of the opportunity to let the jury decide the facts, in spite of his lack of memory about the specifics of his accident.

[¶ 31] This case has important and unfortunate repercussions for plaintiffs who have been injured when encountering an acknowledged and known safety hazard and who have little or no memory of how the accident happened. Plaintiffs who experience memory loss as part of the experience of an accident or injury may, ironically, be at a greater disadvantage when seeking to recover for their injuries. See Benezra v. Holland Am. Line-Westours, Inc., No. 98-35628, 2000 WL 374611, at *2, 2000 U.S.App. LEXIS 6818, at *6 (9th Cir. April 12, 2000) (Reinhardt, J., dissenting).

[¶32] Given the serious nature of the safety hazards in this case, and Jenkins’s failure to provide safety equipment that was designed to prevent a worker’s fall, I believe that the evidence should be presented to the jury and that it would be *944reasonable for a jury to infer causation. This is not an appropriate case for summary judgment. Addy’s lack of memory about the specifics of the accident may present a credibility issue for the jury, but it provides no basis, in the context of all of the facts presented, for disposing of this case prior to trial. See Dionne v. LeClerc, 2006 ME 34, ¶ 15, 896 A.2d 923, 929.

[¶ 33] I would vacate the judgment and remand the case.

. I refer solely to the plaintiff wife; her husband had a consortium claim.