ZAWACKI et al v. FOLEY et al
Filing
43
MEMORANDUM OF DECISION denying 37 Motion for Summary Judgment By MAGISTRATE JUDGE JOHN C. NIVISON. (mlm)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
CYNTHIA ZAWACKI, et al.,
Plaintiffs,
v.
WILLIAM P FOLEY, d/b/a
MOOSEHEAD HILLS CABINS,
et al.,
Defendants.
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1:14-cv-00089-JCN
MEMORANDUM OF DECISION 1
In this action, Plaintiffs Cynthia and William Zawacki seek to recover damages that they
allegedly suffered as the result of a January 1, 2010, incident that occurred on the property of
Defendants William Foley and Sally Johnson, who at the time were doing business as Moosehead
Hills Cabins. The matter is before the Court on Defendants’ Motion for Summary Judgment (ECF
No. 37).
As explained below, following a review of the summary judgment record, and after
consideration of the parties’ written arguments, the Court denies the motion.
BACKGROUND 2
Plaintiff Cynthia Zawacki rented a cabin from Defendants for a stay to begin on December
27, 2009, and conclude on January 1, 2010. (Plaintiffs’ Statement of Additional Material Facts
1
Pursuant to 28 U.S.C. § 636(c), the parties have consented to have United States Magistrate Judge John C. Nivison
conduct all proceedings in this case, including trial, and to order entry of judgment.
The facts set forth herein are derived from the parties’ Local Rule 56 statements of material facts, and are presented
in the light most favorable to Plaintiffs.
2
(PSAMF) ¶ 17, ECF No. 40.) 3 She and her group stayed at one cabin for the first three nights,
and then relocated to another cabin for their final night. (Id. ¶ 18.) On the final evening, after the
other members of Ms. Zawacki’s group went to bed, she relaxed in the living area of the cabin.
(Id. ¶ 20.) When she retired for the evening, Ms. Zawacki fell down a set of stairs when she
mistook the doorway to the stairs for the lower level for the doorway to her bedroom. (Id. ¶ 22.)
The doorway to the stairs down which she fell was next to the doorway to her bedroom. (Id. ¶ 19.)
The doorway to the stairs was not secured by a door or gate. (Defendants’ Statement of Material
Facts (DSMF) ¶ 2, ECF No. 38.) 4
According to Ms. Zawacki, all of the lights in the cabin were off at the time of her fall, but
the cabin was dimly lit, including by natural light from a full moon. (DSMF ¶¶ 6 – 7.) She
recollects “stepping off” and falling. (Id. ¶¶ 9 – 10.) Ms. Zawacki concedes that the incident
would not have occurred if the lights had been on because she would have seen what was there to
be seen. (Id. ¶ 8.)
Plaintiffs’ liability expert, William Flanders, P.E., opines that the stairs do not comply with
common construction practices (i.e., the Maine Uniform Building and Energy Code and the 2009
International Residential Code).5 (PSAMF ¶ 29.) Mr. Flanders maintains that the stairs are too
steep and present an unsafe or dangerous condition, particularly for nighttime travel to the
bedroom. (Id. ¶ 32.) Mr. Flanders is not aware of the circumstances of Ms. Zawacki’s fall, and
he offers no opinion on causation. (DSMF ¶¶ 15 – 16.)
Citations to Plaintiffs’ Statement of Additional Material Facts are meant to include reference to Defendants’ Reply
Statement (ECF No. 41), wherein Defendants admit, qualify, or deny Plaintiffs’ statements.
3
4
Citations to Defendants’ Statement of Material Facts are meant to include reference to Plaintiffs’ Opposing Statement
(ECF No. 40), wherein Plaintiffs admit, qualify, or deny Defendants’ statements.
5
The Town of Greenville has not adopted the Code, but Mr. Flanders considers the standards contained in the Code
to reflect common construction standards. (PSAMF ¶ 31.)
2
STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “After the moving party has presented evidence in support of its motion for summary
judgment, ‘the burden shifts to the nonmoving party, with respect to each issue on which he has
the burden of proof, to demonstrate that a trier of fact reasonably could find in his favor.’”
Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013) (quoting Hodgens v. Gen. Dynamics
Corp., 144 F.3d 151, 158 (1st Cir.1998)).
A court reviews the factual record in the light most favorable to the non-moving party,
resolving evidentiary conflicts and drawing reasonable inferences in the non-movant’s favor.
Hannon v. Beard, 645 F.3d 45, 47-48 (1st Cir. 2011). If the court’s review of the record reveals
evidence sufficient to support findings in favor of the non-moving party on one or more of his
claims, then there is a trial-worthy controversy and summary judgment must be denied to the extent
there are supported claims. Unsupported claims are properly dismissed. Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986) (“One of the principal purposes of the summary judgment rule is to
isolate and dispose of factually unsupported claims or defenses.”).
DISCUSSION
Defendants contend that they are entitled to summary judgment because Plaintiffs cannot
establish that Defendants proximately caused Ms. Zawacki’s fall. (Motion at 2 – 3.) “The question
of whether a defendant’s acts or omissions were the proximate cause of a plaintiff’s injuries is
generally a question of fact, reserved for the jury’s determination.” Tolliver v. Dep’t of Transp.,
2008 ME 83, ¶ 42, 948 A.2d 1223, 1236. The Maine Supreme Judicial Court has explained that
proximate cause contains two elements, substantiality and foreseeability:
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Evidence is sufficient to support a finding of proximate cause if the evidence and
inferences that may reasonably be drawn from the evidence indicate that the
negligence played a substantial part in bringing about or actually causing the injury
or damage and that the injury or damage was either a direct result or a reasonably
foreseeable consequence of the negligence.
Id. (quoting Merriam v. Wanger, 2000 ME 159, ¶ 8, 757 A.2d 778, 780). See also Merriam, 2000
ME 159, ¶ 9, 757 A.2d at 781 (“A consequence of negligence is reasonably foreseeable if the
negligence has created a risk which might reasonably be expected to result in the injury or damage
at issue, even if the exact nature of the injury need not, itself, be foreseeable.”).
According to Defendants, Ms. Zawacki’s concession that she would not have fallen had
the lights been on precludes any possibility that she might prove causation. Defendants rely,
principally, on Addy v. Jenkins, Inc., 2009 ME 46, 969 A.2d 935, in which the Maine Supreme
Judicial Court affirmed the entry of summary judgment in favor of a defendant contractor who set
up unsafe staging, where the plaintiff, a subcontractor’s employee, lacked a memory of how or
why he fell.
The facts of Addy are distinguishable from the circumstances of Plaintiff’s fall and the
record evidence in this case. First, in Addy, where no one witnessed the plaintiff’s fall, the plaintiff
did not know whether he fell from the staging, the roof of an adjacent building, or from a ladder.
2009 ME 46, ¶ 5. In addition, after acknowledging that the record contained evidence that the
plaintiff fell from the staging, the Court noted that the plaintiff “does not recall whether his fall
was connected in any way to the absence of a ladder, platform, or railing on the staging.” Id. at ¶
11.
Unlike in Addy, Plaintiffs have not only presented reliable evidence regarding the location
of the fall (i.e., down the stairs after taking a step through the doorway), but have also introduced
evidence upon which a fact finder could connect Defendant’s alleged negligence to the fall.
4
Plaintiff’s claim is based at least in part on Defendants’ failure to identify or guard adequately the
stairway down which Ms. Zawacki fell. On this record, a fact finder could reasonably conclude
that she would not have fallen if the stairway had been identified differently or guarded in some
way. Whether reasonable care required Defendants to place a guard at the top of the stairs or to
identify for their guests the location of the stairway is an issue for the fact finder. Accordingly,
Defendants are not entitled to summary judgment.6
CONCLUSION
Based on the foregoing analysis, the Court denies Defendants’ Motion for Summary
Judgment.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 10th day of August, 2015.
6
The fact that Ms. Zawacki testified that the incident would not have occurred if the lights were on is not dispositive
of the causation issue. An injury can have more than one legal cause. Hinton v. Outboard Marine Corp., 828 F. Supp.
2d 366, 382 (D. Me. 2011) (citing Donald G. Alexander, Maine Jury Instruction Manual § 7-81 (4th ed. 2003)).
5
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