Maine Injury Lawyer Blog

August 6, 2019

Can the Victim of a Maine Skiing Accident Hold the Resort Liable?

Maine is known for its excellent skiing and snowboarding. And while skiing and snowboarding are popular winter sports that all ages can enjoy, they can also present significant dangers. One common question that comes up after Maine skiing accidents is whether the ski resort can be held liable for a skier’s injuries. The answer, as is often the case in personal injury law, is “sometimes.”

Generally speaking, landowners owe a duty of care to those whom they invite onto their property. Thus, absent any other legislation, it would seem that ski resorts are bound by this duty and could be held liable for a skier’s injuries. However, the Maine State Legislature has the ability to clarify or eliminate a duty of care if it sees fit. Not surprisingly, given the fact that the ski tourism industry is a significant source of revenue for the state, lawmakers provide some legal protections to ski resorts.

Under Maine Revised Statutes section 15217, lawmakers have determined that skiers and snowboarders assume certain risks by engaging in these winter sports. In effect, section 15217 provides broad immunity to ski resorts by stating that skiers and snowboarders accept “the risks inherent in the sport and, to that extent, may not maintain an action against or recover from the ski area operator … for any losses, injuries, damages or death that result from the inherent risks of skiing.” The statute notes that weather conditions, surface conditions, and collisions with fixed objects, among other risks, are all inherent risks of the sport.

July 24, 2019

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

by Peter Thompson & Associates

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.”

July 12, 2019

Circuit Court Overseeing Maine District Courts Issues Opinion in Slip-and-Fall Case

by Peter Thompson & Associates

Earlier this year, the First Circuit Court of Appeals issued a written opinion in a premises liability case involving a slip-and-fall accident at a wedding. While the case did not arise under Maine law, it is relevant to Maine slip-and-fall accident victims because it shows the tendencies of the federal circuit court overseeing Maine courts. The case required the court to determine if the lower court correctly denied the plaintiff’s post-trial motion seeking judgment as a matter of law. Ultimately, the court concluded that the evidence supported the jury’s verdict, dismissing the plaintiff’s case.

As the court described the events leading up to the filing of the lawsuit, the plaintiff was a guest at a wedding which was located at the defendant resort. The wedding venue was adjacent to the swimming pool. As the night went on, and guests began to enjoy themselves, several of the guests started jumping in the pool. After getting into the pool, the guests returned to the dance floor. This resulted in the dance floor getting wet.

The plaintiff was walking across the dance floor, heading to the restroom to change into her bathing suit, when she slipped and fell. As a result of her fall, she fractured her wrist and seriously injured her back. The plaintiff filed a premises liability lawsuit against the resort. The case proceeded to trial, where a jury determined that the resort was not negligent. The plaintiff filed a post-trial motion, arguing that she was entitled to judgment as a matter of law and that the evidence did not support the jury’s verdict. That motion was denied, and the plaintiff appealed.

July 5, 2019

Maine Supreme Court Dismisses Medical Malpractice Claim for Lack of Evidence Linking Delay in Treatment to Plaintiff’s Injuries

by Peter Thompson & Associates

Maine’s Supreme Judicial Court recently decided a medical malpractice case resting on a claim that a man’s original misdiagnosis delayed his treatment and caused serious complications. According to the court’s opinion, in August 2012, the plaintiff had had a polyp surgically removed from his colon less than a week before he went to the emergency room at a Maine hospital complaining of abdominal pain. He was seen by the on-call surgeon, who ordered a CT scan. The next morning, a radiologist reviewed the results of the scan and found there were no findings that suggested an anastomotic leak. Later that night, based on the plaintiff’s condition, another surgeon decided emergency surgery had to be conducted, and in the course of that surgery, discovered a small anastomotic leak. The plaintiff was hospitalized and intubated, developed deep venous thrombosis, and had a stroke during his hospitalization.

The plaintiff and his wife filed a medical malpractice claim against the radiologist who interpreted the CT scan, the first on-call surgeon, and the hospital. They alleged that if the anastomotic leak had been identified and treated the night he went to the hospital, he could have avoided many of the resulting complications. A trial court found that the plaintiffs could not prove the claim against the hospital and the radiologist, and a jury found in the surgeon’s favor, and the plaintiffs appealed. They argued that the court should not have found in favor of the radiologist and that a jury could have found that the radiologist was negligent in reading the CT scan, and that his negligence caused the plaintiff’s injuries.

To prove the elements of a medical malpractice claim, the court explained, a plaintiff must show that the defendant departed from a recognized standard of care, proximately causing the plaintiff’s injury. To establish proximate cause in the medical malpractice claim, the evidence must show that the defendant’s’ conduct played a substantial part in causing the injury, and the injury was either a direct result or a reasonably foreseeable consequence of the conduct. The appeals court found that the record was devoid of evidence showing what role the radiologist’s reading of the CT scan played in the development of the man’s complications. Therefore, there was no evidence linking the radiologist’s conduct to the injury that related to the delay in time and the complications he suffered. For that reason, a verdict would have been based on mere speculation in finding that the radiologist’s conduct was the proximate cause of the man’s injuries.

June 26, 2019

Maine Lawmakers Fail to Pass Bill Mandating Vehicle Ice and Snow Removal

by Peter Thompson & Associates

Summer is in full swing, but lawmakers in Maine recently had their minds on the winds of winter when they debated a bill that would have penalized motorists who failed to remove ice and snow debris from the roofs of their cars before traveling at faster speeds. It’s already a requirement of motorists in numerous other states, including nearby New Hampshire with Jessica’s Law. Our injury lawyers have learned that the Maine bill, S.B. 1527, has died in committee. This is unfortunate given that the measure had bipartisan backing, and with vigilant enforcement, might have made a notable difference in Maine roadway safety this upcoming winter season.

Had S.B. 1527 passed, it would have amended Sec. 1. 29-A MRSA §2396, sub-§5 (pertaining to unsecured loads) to include a provision fining $250 to any motorist traveling 40 mph or faster on a public way with a “load of solid precipitation on the motor vehicle.” Solid precipitation was defined to include snow, ice, sleet and hail. Exceptions were to be made for “minor amounts” of solid precipitation where a reasonable effort had been made to remove the load, but otherwise, having a lump of snow on the roof of your car would be grounds for a steep fine under the act which would have doubled for second or subsequent offenses. The one major weakness in the measure was that it exempted commercial vehicles, very often the culprit in these cases.

Why Snow and Ice on Cars is So Dangerous

Car accident lawyers know public opinion on car snow and ice removal is somewhat split. Obviously, there are those who say daily snow and ice removal from one’s vehicles is a major hassle. On the flip side, those clumps of debris and shards of ice can cause serious accidents. For example, Jessica’s Law in New Hampshire is named for a teenager who was struck and killed in 1999 by another driver who lost control on the highway when a huge chunk of ice that flew from a box truck smashed his windshield. This January in Wells, Maine, a driver’s entire front windshield was shattered when a hunk of solid ice came flying off another vehicle. In another similar incident that same month in Freeport, a woman and her three daughters narrowly escaped injury when ice from a box truck hurtled their direction and shattered the windshield. In February, a New Hampshire DOT worker was hurt when ice from atop a box truck flew off the back and slammed into the windshield. Continue reading

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

May 22, 2019

Maine Workers’ Compensation Reform Could Expand Injured Employee Benefits

by Peter Thompson & Associates

Workers injured on-the-job in Maine are almost all entitled to no-fault workers’ compensation benefits in accordance with Title 39-A of Maine Revised Statutes. With very few exceptions, those hurt in the course and scope of employment can receive compensation for lost wages, medical expenses and vocational training. Survivors of employees who die of these injuries can collect death benefits.

As Portland workers’ compensation attorneys can explain, this was all part of the “grand bargain” struck between labor unions and employers in the early 20th century, in exchange for strictly curtailing, in most cases, a worker’s right to sue an employer for such injuries. However, employee advocates say benefits are insufficient and too difficult to obtain, thanks to years of legislative efforts (the biggest push being in 1992) favoring insurance companies and big industry. This, they say, combined with a twenty-six percent cost of living increase in Maine, makes the current situation untenable for injured workers.

State legislative committees have scheduled hearings, where workers and their families are slated to testify, arguing that reform is necessary because the state’s current workers’ compensation framework is unfair and causes undue hardship. State lawmakers are considering more than two dozen bills that would amount to sweeping reform of Maine’s workers’ compensation system. The objective, say supporters, is to balance the scales. The system was overhauled roughly 25 years ago by those who insisted the state’s approach – the most expensive in the nation – put the entire system on the verge of collapse.

May 8, 2019

Spring Bicycle Accident Safety Tips From Bangor Injury Lawyers

by Peter Thompson & Associates

With spring in full swing and summer almost here, we’re seeing more bicyclists take to the streets in Maine cities like Bangor and Portland. Our Bangor injury lawyers are encouraging all drivers to use extra caution and remember that Maine Bicycling Law affords bicyclists most of the same rights, and responsibilities, as any motorist.

State law also requires those behind the wheel maintain a three-foot distance when passing bicyclists and to use extra care if they observe a child bicyclist.

It’s easy sometimes to forget how dangerous Maine roads can be for bicyclists, thanks to drivers who are careless, distracted or drunk. May is National Bike Month, and the National Safety Council reports a nearly 30 percent increase in collisions during the last eight years. There were more than 1,000 bicyclist deaths in 2017, nearly 700 of those involving motor vehicles.

Unfortunately, many who cause bicycle accidents – even serious ones – are often given a slap on the wrist. Continue reading

May 3, 2019

Deluge of Maine Pedestrian Accident Injuries and Deaths are Cause for Deep Concern

by Peter Thompson & Associates

A record-breaking number of Maine pedestrian accidents in recent years is vexing traffic safety officials. Maine Public Radio reported pedestrian accident deaths nationally last year were the highest they had been in 30 years. In Maine, officials recorded a 24-year high in 2017. This year is not shaping up to be any safer.

The biggest factor, as noted by numerous traffic safety officials and our own Portland pedestrian accident lawyers, is distraction. Smartphones are the most ubiquitous example, with the average adult spending four hours daily on their phones. A recent comprehensive data analysis by Zendrive reveals distracted driving is 100 times worse than government data reports. These statistics illustrate the real risks when it comes to walking on Maine roads.

Maine Pedestrian Accident Injuries and Deaths Reported Last Three Months

If recent headlines in the Portland Press-Herald and Lewiston Sun-Journal are any indication, it’s unlikely the trend will ease anytime soon. Among those incidents:

In April, a 40-year-old woman was struck and killed in a pedestrian accident reportedly caused by a drunk driver on Yarmouth Road. The 58-year-old driver was arrested. Her 11-year-old daughter was also in the vehicle.
A few weeks earlier, a 21-year-old woman walking on Franklin Street was struck by a 23-year-old male driver. The Portland pedestrian accident resulted in serious but not life-threatening injuries.
In February, a woman was struck and killed in a Turner pedestrian accident involving a truck on Route 4.
Also in February, a 36-year-old woman in Lisbon was struck by a box truck while jogging on Route 196. She told police she tried to jump out of the way when the truck veered toward her, but the vehicle nonetheless knocked her to the ground. Although it was early morning, the woman was wearing an illuminated running vest. The 25-year-old driver reportedly did not stop and is facing criminal charges.