Personal Injury

July 24, 2019

Can an Injury Victim Who Is Partially at Fault Still Recover Through a Maine Personal Injury Lawsuit?

While some accidents are solely the cause of one party, it is not unusual for multiple parties to share responsibility for an accident. One of the most common questions Maine personal injury victims have is whether they can pursue a claim for compensation if they were partially at fault for the accident resulting in their injuries. The answer, as is often the case with legal questions of this nature, is “it depends.”

Maine courts employ the doctrine of modified comparative negligence when it comes to determining which injury victims can recover for their injuries. In many jurisdictions using a comparative negligence system, a partially at-fault plaintiff can recover for their injuries; however, a plaintiffs’ recovery amount will be reduced by their percentage of fault. Thus, if a plaintiff suffered $400,000 in personal injury damages but was found to be 25 percent at fault by the jury, the plaintiff’s total recovery amount would be $300,000.

Under Maine Rules of Civil Procedure section 156, as long as the injury victim is less than 50% percent at fault for the accident, they are legally permitted to recover for their injuries. However, unlike other jurisdictions, Maine courts “instruct the jury to reduce the total damages by dollars and cents, and not by percentage, to the extent considered just and equitable.” In so doing, juries should consider the plaintiff’s share of responsibility, but should not strictly rely on percentages when reducing a plaintiff’s award figure. In addition, the court must instruct the jury that their award amount will be the final verdict in the case and that there will be no further modification by the court.

July 18, 2019

Court Discusses Maine’s Equine Immunity Statute in Recent Personal Injury Case

by Peter Thompson & Associates

Earlier this month, a state appellate court issued an opinion in a Maine personal injury case discussing the state’s equine statute. Specifically, the court had to determine if the equine statute precluded the plaintiff’s case against the parents of a ten-year-old girl who struck the plaintiff while riding a horse. As the court notes, this case was the first time the Maine Supreme Court heard a case requiring the court to determine the breadth of immunity provided by the equine-immunity statute.

According to the court’s opinion, the plaintiff was observing children race horses at an arena. While there was a designated area for spectators, the plaintiff observed from an area that was closer to the exit. The plaintiff watched as a ten-year-old girl rode around the track several times. However, on the girl’s fourth circuit around the raceway, the girl’s horse collided with the plaintiff. The plaintiff fell, seriously injuring her wrist, and later filed a personal injury lawsuit against the girl’s parents (the defendants).

In response to the plaintiff’s complaint, the defendants claimed Title 7 Chapter 743 Section 4103-A of the Maine Revised Statutes provides the defendant’s immunity from the plaintiff’s lawsuit. Specifically, that statute provides that any “person engaged in an equine activity is not liable for any property damage or damages arising from the personal injury or death of a participant or spectator resulting from the inherent risks of equine activities.”

June 19, 2019

Nursing Home Neglect and Abuse of Veterans at Veterans Administration Facilities in 25 States

by Peter Thompson & Associates

A new federal inspection report shows nursing home neglect and abuse has been pervasive at Veterans Affairs (VA) facilities across the country, including Augusta, Maine. Residents have been denied medication, trapped in wheelchairs for hours and have sustained wounds rivaling those they suffered in combat. Inspectors reported spotting nurses sleeping on-the-job, and other nurses unable to respond to distress calls because patients had no functional call light.

An estimated 40,000 veterans are residents at VA nursing homes throughout the country at any given time. A joint report by USA Today and the Boston Globe revealed that in a VA nursing home in Maine’s capital, veterans, without enough medication, spent hours clearly in pain .

The reporting team first revealed that private contractor inspectors investigated the VA system nine months ago, but until recently their actual reports weren’t made public. The reports painted a picture of abysmal care of aging and vulnerable veterans and revealed that of 99 VA nursing homes inspected, 55 were cited for care deficiencies that resulted in actual harm to veterans. In three of those cases, inspectors discovered that the health and safety of veterans was in immediate jeopardy. Continue reading

March 8, 2019

Maine Dog Bite Attack Leads to Stronger State Law

by Peter Thompson & Associates

Dog bites in Maine can have serious consequences for victims, resulting in lifelong injuries, scarring and emotional trauma. Last summer, effective Aug. 1, 2018, Maine’s law pertaining to dangerous dogs changed, making it easier to hold negligent dog owners accountable. As our Portland dog bite injury attorneys can explain, L.D. 858, codified in MRSA s. 3907, sub s.12-D, raised the fine and expanded penalties imposed for owning a nuisance or dangerous dog and also for failing to follow a court order related to that dog.

The law defines a “dangerous dog” as a canine (wolf hybrid or dog) that either kills or inflicts serious bodily injury on a person, pet or other domesticated animal (assuming the subject of the attack wasn’t trespassing on the dog’s or its owner/owner’s property). But a dog doesn’t need to bite in order for this designation to apply. A dog can be found dangerous if it causes a “reasonable and prudent person,” who is not on the dog/owner’s property and isn’t acting in any way aggressive, to fear imminent serious bodily injury of themselves or someone else. Excluded in this are law enforcement K-9s, dogs protecting their owners/property or dogs that seriously injure or kill a person committing a crime against an individual or property owned by the dog’s keeper/owner.

Nuisance dogs, meanwhile, are defined as a dog/wolf hybrid that causes bodily injury (other than serious bodily injury) to an individual or domesticated animal not trespassing on the dog or the owner/keeper. Just like Maine’s new dangerous dog designation, a dog that puts a person in fear of bodily injury can be given a nuisance designation.

November 2, 2018

Torts in Sports: Maine Injury Liability for Youth Sports Assaults

by Peter Thompson & Associates

Learning good sportsmanship is one of the primary purposes of youth sports. Yet all over the country – and right here in Maine – serious injuries are reported when parents, players, coaches and fans engage in violence both on and off the field.

Our Portland injury lawyers just recently read about a girls soccer field punch during a playoff game at Lisbon High School, a half hour outside Portland. A video clip (viewed more than 73,000 times on social media before it was removed) shows one player swinging at an opposing player after a scored goal. Later in the game, the clip shows that same player attack again, punching the same girl in the face. The victim fell as she tried to dodge the punch and apparently wasn’t seriously hurt, according to the Portland Press Herald. The video is being reviewed by school officials and no criminal charges have been filed. Less than a week later, the Press Herald reported yet another violent attack at a youth sports game, this time at Scarborough High School, where a 20-year-old resident allegedly stabbed a 15-year-old student in the parking lot during a soccer game half-time.

As Maine injury lawyers know, there may be few remedies available for youth sports players who suffer certain injuries in the course of the game. Depending on the nature of the sport, those injuries may be considered the inherent risk one assumes in playing. (Not always, though, so it’s best to at least discuss your rights with an attorney.) However, when an assault or battery occurs at a sporting event, either among fans or between players or even parents, coaches or referees, parties may be found liable under either negligence or intentional tort law. Continue reading

October 4, 2018

Maine Injury Lawsuit Against Farm After Drug Overdose at Work

by Peter Thompson & Associates

A worker who suffered a drug overdose on the job is suing his former employer, alleging his co-workers committed gross negligence by failing to call 911 and instead placing him in a cold shower. Bangor Daily News reports the 30-year-old man is now confined to a wheelchair and unable to care for himself.

The case is unique in the fact that in most Maine work injury cases seeking coverage of medical bills and lost wages from an employer, workers’ compensation is the exclusive remedy, as explained in the general provisions of 39-A M.R.S.A. §104. The law says an employer is exempt from civil action for either negligence or intentional conduct resulting in an employee’s injury or death, and also that a fellow employee is exempt from a Maine injury lawsuit arising out of the course of employment.

As a no-fault system, the employee is not required to prove negligence and the employer loses the right to assert most common-law defenses that would ordinarily address an injury lawsuit. The worker does need to show he or she was acting in the course and scope of employment. Although employees can (and should, if available) assert third-party liability claims against non-employer defendants whose negligence caused or contributed to their injuries, it’s very rare for an employee to succeed in a negligence lawsuit against an employer for injuries sustained in the course and scope of employment. This doesn’t apply to independent contractor workers, only those who meet the definition of “employee.” Continue reading

August 9, 2018

Maine School Injury Case Results in Partial Summary Judgment

by Peter Thompson & Associates

The Maine Supreme Judicial Court recently granted partial summary judgment in a case against a Portland High School after a mother alleged her teenage son fell and struck his head while apparently tussling with an older boy at a school sporting event.The court dismissed the claims against the older boy’s parents. The case against the defendant teen and the school district will proceed separately from this ruling.

The mother claimed the incident occurred at Cheverus High School in Portland, where a number of youths had been attending a sporting event. She filed an injury lawsuit against the school district, as well as the older boy and his parents, bringing counts for negligence and negligent infliction of emotional distress. The defendant parents requested summary judgment for both negligent infliction of emotional distress and causes of action under state negligence laws.

Summary judgment is a legal term that means a plaintiff has failed to bring a case in which there is a genuine issue of material fact for a jury to decide, so the moving party is entitled to judgment as a matter of law. Essentially, this means a plaintiff failed to bring a case sufficient for a jury to decide upon matters of fact, and the defendant otherwise prevails as a matter of law. Summary judgments are frequently filed by law firms defending corporations and large insurance companies. It means an unprepared injury attorney could find his case over shortly after making it to the courtroom.

June 28, 2018

Rabid Animal Attacks Put Focus on Dog Bite Injuries in Maine

by Peter Thompson & Associates

Rabid wildlife has attacked two Brunswick residents and two dogs in recent days. While references to Stephen King’s “Cujo” will no doubt abound, the fact remains summer is already the most dangerous time of year for Maine dog bite injuries; confirmed cases of rabies in the area will only serve to increase the risks. While Stephen King’s 1981 classic depicted the horror faced by a mother and son held captive in rural Maine by a rabid dog, the truth of the matter is that mandatory pet vaccines throughout the majority of the country have drastically reduced the risks.

However, Maine is among the states that still report the most cases each year. The Centers for Disease Control and Prevention reports rabies is a preventable disease of mammals, transported most often through the bite of another rabid animal. The vast majority of reported cases each year occur in wild animals, including raccoons, bats, foxes, and skunks. Untreated, the virus infects the central nervous system and leads to brain disease and death. Death occurs within days of the onset of symptoms.

In the Brunswick case this month, the Bangor Daily News reports a 72-year-old woman was bitten by a gray fox. A 27-year-old neighbor was also bitten while trying to detain the fox for authorities. In a separate incident, two dogs were bitten by a rabid skunk. As of June, Maine has had 18 confirmed cases of rabies reported statewide.

August 22, 2017

Maine Amusement Park Injury Risks Highlighted in Peak Fair Season

by Peter Thompson & Associates

When seven were injured and one killed on a state fair ride in Ohio, officials with the Bangor State Fair initiated additional safety checks on a ride similar to the one that malfunctioned, to ensure there were no future tragedies. In fact, the Freak Out ride in Bangor is manufactured by the same company that made the ride in Ohio. A specialist is slated to check the ride before the fair opens, the operator told The Bangor Daily News, and the Bangor fire marshal’s office inspectors were dispatched to check all mechanical rides.

Fair injuries are not unique to Ohio. Right here in Maine, four children were injured in two separate incidents two years ago at the Waterville State Fair. In one incident, the Dragon Wagon ride resulted in three child injuries. The very next day at the same fair, a rider in a mechanical swing wasn’t properly secured in the ride, and fell out of the chair during the ride. Two people were later charged criminally in those incidents.

Deaths on carnival rides are relatively rare, but the problem, as noted by experts quoted in USA Today, is there are not enough safety regulations and too few inspectors. From now through mid-September is considered peak fair season, with state fairs popular in Maine and many other states. But the inspections may not be adequate to catch all the potential problems. For example, Ohio reportedly has eight inspectors in charge of permitting some 3,700 rides annually. The question then becomes how many hours of inspection does each ride get? One expert opined a thorough ride inspection takes between one and three days because the inspector must examine x-rays of the joints and welds. Continue reading

July 26, 2017

Summer Segway Tours in Maine May Pose Risk of Injuries

by Peter Thompson & Associates

A segway is known widely as being the primary mode of transportation for the goofy “Mall Cop” character Paul Blart. Segways, those two-wheeled, one-person motorized transportation devices, are typically seen as innocuous and easy-to-use, if a bit silly-looking. However, as recently reported by The Washington Post, summer Segway tours are increasingly popular throughout the country, including in Maine. But they pose dangers that might not be immediately obvious. As the Post reports, many tourists have suffered injuries as a result of Segway falls.

The Post detailed a case recently in which a reporter looked on as a group of four tourists tried out some final practice moves before heading out for a tour in Washington, D.C. However, one in the group crashed. The New Zealand tourist hit a small bump in the pavement, struck a wall with the handlebars, and then fell over onto the concrete. She immediately grabbed her knee in pain. She was helped into the building and later taken by ambulance to a local hospital. The reporter later learned she had suffered a broken leg and would need surgery upon her arrival back to New Zealand, which was going to occur much sooner thanks to the trip being cut short. In an email, her husband called it “a silly accident.”

However, as our attorneys know, these incidents may actually be a bit more complicated than that, both from a causation and liability standpoint. In fact, these devices may be more complicated to operate than they might appear at first blush. Currently, there are cases pending – some of them multi-million dollar claims – that involve injuries from falls off Segways.