MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2016 ME 100
Docket:   Cum-15-67
Argued:   December 9, 2015
Decided:  July 7, 2016

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.



                         ESTATE OF LOIS W. SMITH et al.

                                          v.

                              TIMOTHY SALVESEN


HJELM, J.

         [¶1] In this premises liability case, Eugene J. Smith, individually and as

personal representative of the Estate of Lois W. Smith, appeals from a summary

judgment entered in the Superior Court (Cumberland County, Mills, J.) in favor of

Timothy Salvesen on Smith’s complaint for the wrongful death of his wife based

on allegations of negligence. Smith argues that the court erred by (1) disregarding

certain statements in his affidavit and the affidavit of his expert witness, and

(2) concluding that he had not presented a prima facie case that Salvesen’s alleged

negligence was a proximate cause of his wife’s fatal injuries. We affirm the

judgment.
2

                               I. BACKGROUND

       [¶2]   Viewed in the light most favorable to Eugene Smith as the

nonprevailing party, the summary judgment record contains the following facts.

See Brown v. Delta Tau Delta, 2015 ME 75, ¶ 2, 118 A.3d 789.

       [¶3] In October 2012, Eugene and Lois Smith traveled to Maine to attend an

event at Hebron Academy, where they were being honored for their work as

benefactors and trustees. The Smiths had made arrangements through the school to

stay at the Maine Farmhouse, a guesthouse owned and operated by Salvesen and

located in Woodstock. A member of the school’s staff gave the Smiths directions

and a passcode to enter the guesthouse, and told them that they would be staying

on the second floor. The Smiths did not receive a room number or any other

information about their accommodations, nor did they speak with Salvesen before

their trip.

       [¶4] Upon arriving at the Maine Farmhouse, the Smiths let themselves in

the front door and selected a room on the second floor. The Smiths were not aware

that the room they chose was actually a two-floor suite with an upstairs bedroom

that was connected to a downstairs living room by a private staircase. After the

Smiths went out to dinner, they returned to their room and went to bed.

       [¶5] The next thing Eugene Smith remembers is being awakened around

7:00 a.m. by a loud crash and Lois Smith’s scream. He ran out of the room to
                                                                                                    3

search for her in the upstairs hallway and then, not finding her, returned to the

bedroom where, for the first time, he noticed the staircase located within the suite.

He found his wife lying on a landing on the staircase and bleeding from her head.

She was eventually transported to a hospital and died the next day from her

injuries.

       [¶6] In September 2013, Eugene Smith filed a complaint for negligence and

wrongful death, 18-A M.R.S. § 2-804 (2015),1 which, as later amended, named

Salvesen as the defendant. Smith alleged in the complaint that the guesthouse

premises were unreasonably dangerous, in part because the staircase in the

bedroom did not conform with applicable safety standards, and that the defects in

the staircase were a proximate cause of Lois Smith’s fatal injuries.

       [¶7] In October 2014, Salvesen moved for a summary judgment, see M.R.

Civ. P. 56, arguing that the evidence failed to support a claim that any alleged

negligence by Salvesen caused Lois Smith’s fall. In his statement of material facts,

Salvesen asserted that nobody knew how or from where Lois Smith fell. To

support these assertions, Salvesen cited to deposition testimony from Eugene

Smith, taken in October 2013, where Smith stated that at the time of the fall, he

was asleep and did not “have the slightest idea” whether his wife was descending


   1
      Title 18-A M.R.S. § 2-804 has since been amended, though not in any way that affects the present
case. P.L. 2016, ch. 451 (effective July 29, 2016) (to be codified at 18-A M.R.S. § 2-804(b)).
4

the staircase when she fell. Salvesen also cited to deposition testimony from

Richard Dolby, Smith’s designated expert on building code standards. Dolby

inspected the staircase and found two violations of the Life Safety Code, which he

determined applied to the Maine Farmhouse.2                         First, he found that when

descending the staircase from the second floor, the height of the first riser was one

inch less than the height of the next riser—a difference that exceeds permissible

limits. Second, he found that the staircase railing fell below minimum height

requirements measured from the steps, and that it was installed at an improper

angle so that it was two inches closer to the bottom steps than to the top steps.

When Salvesen deposed Dolby in May 2014, Dolby stated that he did not know

whether Lois Smith traversed the top two steps or whether the railing and riser

height violations had anything to do with her fall.

        [¶8]     In his opposition to Salvesen’s motion, Eugene Smith denied

Salvesen’s assertion that nobody knew how or from where Lois Smith fell. He

submitted an additional statement of fact, see M.R. Civ. P. 56(h)(2), based on an

affidavit that he executed in October 2014, a year after his October 2013

deposition. In the affidavit, he stated that because he heard a loud crash, he

    2
      The Life Safety Code is a model code published by the National Fire Protection Association. The
Code of Maine Rules incorporates the 2009 edition of the Life Safety Code by reference, with certain
modifications and exclusions that are inapplicable here. See 9 C.M.R. 16 219 020 § 1 (2011). Although
Dolby appears to have relied on the 1991 edition of the code, there are no substantive differences between
the 2009 edition and the 1991 edition that are relevant in the present case.
                                                                                    5

“assume[d]” his wife fell from the top of the stairs. Smith also made an assertion

of fact that was based on an affidavit that Dolby executed in October 2014, after

Dolby had been deposed. In the affidavit, Dolby stated, “[I]t is my opinion that the

one-inch differential in riser height and the known risks associated with such a

defect should be considered a critical factor in deciding whether an inference of

causation can reasonably be drawn.” He further stated that, in his opinion, “the

railing defects may also have made Lois Smith’s fall even more inevitable, as

[they] could well have affected her stability and ability to regain her balance if she

lost it.”

       [¶9] In January 2015, the court entered a summary judgment in favor of

Salvesen, concluding that Smith had failed to make a prima facie showing of

causation. In its judgment, the court stated that it did not rely on Smith’s statement

that he believed his wife fell from the top of the stairs “to the extent it conflicts

with his [earlier] deposition testimony.” The court also stated that it did not rely

on Dolby’s statement that differences in the riser heights “should be considered” as

evidence of causation, reasoning that Dolby had not offered that opinion in his

prior sworn testimony, that it was “conjecture,” and that it constituted a “new

expert opinion” that had not been properly disclosed. Smith timely appealed. See

14 M.R.S. § 1851 (2015); M.R. App. P. 2.
6

                                  II. DISCUSSION

      [¶10] Smith asserts that the court erred by excluding from the record on

summary judgment statements that he and Dolby made in post-deposition

affidavits, and by concluding that the summary judgment record did not generate a

factual issue on causation. We consider these arguments in turn.

A.    Contradiction Between Affidavits and Deposition Testimony

      [¶11] Smith first argues that the court erred by not considering certain

statements in his affidavit and Dolby’s because, he argues, the statements did not

directly contradict their earlier deposition testimony.

      [¶12] In summary judgment motion practice, “a party will not be permitted

to create an issue of material fact . . . simply by submitting an affidavit disputing

his own prior sworn testimony,” unless he provides “a satisfactory explanation of

why the testimony is changed.” Zip Lube, Inc. v. Coastal Sav. Bank, 1998 ME 81,

¶ 10, 709 A.2d 733 (quotation marks omitted); accord, e.g., Schindler v. Nilsen,

2001 ME 58, ¶ 10, 770 A.2d 638 (concluding that a trial court properly excluded a

portion of a party’s affidavit that was “directly contrary to her prior sworn

testimony”).

      [¶13] Here, Smith testified in a deposition that he did not “have the slightest

idea” whether his wife was descending the stairs when she fell. After Salvesen

moved for summary judgment, Smith executed an affidavit stating that he heard
                                                                                                           7

“a loud crashing” noise, which he “assume[d] was [his wife] falling from the top of

the stairs.” In its judgment, the court merely stated that it would disregard the

statement in Smith’s affidavit “to the extent” that it conflicted with Smith’s earlier

deposition testimony. The court did not state that there was a conflict or, if so,

what the conflict entailed, and Smith did not move for the court to issue any further

conclusions on the issue. The court’s statement therefore is nothing more than a

reiteration of the doctrine prescribed in Zip Lube, Inc. and does not constitute

error.3

          [¶14] As to evidence of Dolby’s opinion, he testified during a deposition

that he did not know whether Smith’s wife was descending or ascending the

staircase when she fell, where she was when she fell, whether she was using the

handrail or even knew that it was there, or whether the railing and riser height

defects had anything to do with the fall. In the affidavit that Dolby executed after

Salvesen filed his motion for summary judgment, however, he acknowledged that

although he could not “say for certain” how Smith’s wife fell, it was his “opinion

that the [one-inch] differential in riser height and the known risks associated with


   3
      We also note that Smith assumed that the noise was from the top of the stairs and that his wife must
have fallen from there. Because Smith did not have personal knowledge about his wife’s location when
she fell, the record does not demonstrate that he was competent to testify on that point, and his statement
was subject to exclusion on that basis. See M.R. Civ. P. 56(e) (stating that “opposing affidavits . . . shall
set forth such facts as would be admissible in evidence” (emphasis added)); M.R. Evid. 602 (“A witness
may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness
has personal knowledge of the matter.”).
8

such a defect should be considered a critical factor in deciding whether an

inference of causation can reasonably be drawn.” As the court correctly noted,

Dolby never offered this opinion during his deposition.4 Further, the statement

contradicts his testimony given at that deposition that he did not know whether the

defects in the staircase were related in any way to the fall. Therefore, the court

properly disregarded it.5

        [¶15]     The court also excluded Dolby’s opinion on causation from the

summary judgment record for the separate reason that it constituted a “new expert

opinion” that Smith never properly disclosed. In the expert designation that, in a

scheduling order, the court ordered Smith to provide Salvesen, see M.R.

Civ. P. 16(a)(1), Smith designated Dolby as a building code expert to explain that

the staircase failed to meet code requirements. Smith did not designate Dolby as

an expert on fall causation or otherwise supplement the record to disclose that

Dolby would be offering opinions on that subject. See M.R. Civ. P. 26(e)(1).

Dolby’s statement that the stairway’s design defects might support an inference of
    4
        Although Smith’s statement of additional material facts, see M.R. Civ. P. 56(h)(2), includes a
general assertion by Dolby that “inconsistent riser heights [are] a leading cause of stairway falls,” Smith
has not presented an opinion by Dolby that the riser heights caused Lois Smith to fall, and, as noted in the
text and as Salvesen correctly asserted in his statement of material facts, see M.R. Civ.P. 56(h)(1), Dolby
testified that he does not know from where she fell or whether either of the alleged defects in the stair
system were related in any way to the fall.
    5
       Dolby also asserted in his affidavit that in his opinion, the defects in the handrail may have
contributed to Lois Smith’s fall. Although, in its judgment, the court did not comment on whether it
relied on Dolby’s opinion about the handrail defects, we note that it too must be disregarded because it
contradicts his deposition testimony.
                                                                                  9

causation therefore exceeds the bounds of the expert witness designation, and the

court properly excluded it from the summary judgment record. Cf. Poulis-Minott

v. Smith, 388 F.3d 354, 359 (1st Cir. 2004) (affirming a court’s decision to strike

portions of an affidavit expressing an expert opinion that exceeded the scope of the

expert witness designation); Samaan v. St. Joseph Hosp., 274 F.R.D. 41, 46-48

(D. Me. 2011) (precluding expert testimony from two witnesses on the issue of

proximate cause when the plaintiff failed to designate the witnesses as causation

experts).

      [¶16]    The court therefore did not err by refusing to consider Smith’s

assertion that he believed his wife fell from the top of the stairs, and Dolby’s

assertion that the defects in the staircase constitute evidence of causation.

B.    Prima Facie Showing of Causation

      [¶17] Smith next contends that the trial court erred by granting a summary

judgment in favor of Salvesen, arguing that a jury could reasonably infer causation

from evidence that aspects of the stairway were defective because they did not

meet code standards.

      [¶18] We review the grant of a motion for summary judgment de novo,

viewing the evidence and any reasonable inferences in the light most favorable to

the nonprevailing party to determine whether a genuine issue of material fact

exists. Bell v. Dawson, 2013 ME 108, ¶ 15, 82 A.3d 827. “An issue is genuine if
10

the party opposing summary judgment presents sufficient evidence to require a

fact-finder to choose between competing versions of the truth at trial.” Id. To

successfully oppose a motion for summary judgment, “the plaintiff must establish

a prima facie case for each element of [his or] her cause of action.” Id. ¶ 16

(quotation marks omitted). “We will affirm the grant of a summary judgment

against a plaintiff who presents insufficient evidence to support an essential

element in her cause of action, such that the defendant would be entitled to

judgment as a matter of law on that state of the evidence at a trial.” Id.

      [¶19] Here, to establish a prima facie case for negligence, Smith must

present sufficient evidence that would allow a fact-finder to reasonably determine

that Salvesen owed Smith’s wife a duty of care, that Salvesen breached that duty,

and that the breach of duty caused Smith’s wife’s injuries. See id. ¶ 17; Durham v.

HTH Corp., 2005 ME 53, ¶ 8, 870 A.2d 577.

      [¶20] There is no dispute that, as the owner of a commercial guesthouse,

Salvesen had a “positive duty” to exercise reasonable care to protect guests from

dangerous conditions on the premises of which he knew or reasonably should have

known. See Durham, 2005 ME 53, ¶ 8, 870 A.2d 577 (quotation marks omitted).

The evidence presented here would permit a jury to reasonably find that Salvesen

did not satisfy that duty because the staircase in the guesthouse did not comply
                                                                                                           11

with applicable building codes.6                The remaining question is whether there is

evidence that would allow a jury to reasonably find that Salvesen’s failure to

remedy the alleged defects in the staircase was a proximate cause of Lois Smith’s

fall.

        [¶21] “Causation is . . . a question of fact, requiring proof that there is some

reasonable causal connection demonstrated in the record between the act or

omission of the defendant and the damage that the plaintiff has suffered.” Estate of

Smith v. Cumberland Cty., 2013 ME 13, ¶ 17, 60 A.3d 759. Causation need not be

proved directly but may be inferred if the inference flows logically from the facts

and is not unduly speculative. See Marcoux v. Parker Hannifin/Nichols Portland

Div., 2005 ME 107, ¶¶ 25-26, 881 A.2d 1138; Rodrigue v. Rodrigue, 1997 ME 99,

¶¶ 14-15, 694 A.2d 924. If, however, “there is so little evidence tending to show

that the defendant’s acts or omissions were the proximate cause of the plaintiff’s

injuries that the jury would have to engage in conjecture or speculation in order to

return a verdict for the plaintiff,” then the defendant is entitled to summary

judgment. Addy v. Jenkins, Inc., 2009 ME 46, ¶ 12, 969 A.2d 935 (quotation

marks omitted).

   6
      Smith also argues that Salvesen breached his duty of care by failing to install warning signs,
emergency lighting, or a gate at the top of the staircase, and by failing to have staff present to warn guests
about possible hazards on the premises. Because there is no evidence that any of these alleged defects fell
below the applicable standard of care or that there was a causal connection between these defects and
Lois Smith’s fall, we do not discuss them further.
12

      [¶22] In Addy, we concluded that the evidence was insufficient to support

an inference of causation when the plaintiff alleged that he fell from staging,

erected by the defendant, that “had not been fully completed and was missing some

ladders, platforms, and railings.” Id. ¶ 11. We concluded that because the plaintiff

had “presented evidence of only from where he fell, rather than how he fell,” he

had failed to establish causation. Id. ¶ 14. On that record, any finding of causation

necessarily “would be based on speculation or conjecture,” and we therefore

affirmed the entry of a summary judgment in favor of the defendant. Id. ¶ 15.

      [¶23]   In a number of other cases, we concluded that an inference of

causation was not unduly speculative when the evidence was sufficient for a

fact-finder to determine that the plaintiff came into direct contact with an allegedly

dangerous condition created by the defendant. See Marcoux, 2005 ME 107, ¶ 26,

881 A.2d 1138 (concluding that the plaintiff made a prima facie showing of

causation when she alleged that she saw a green stain on the floor and “felt

something slippery when she fell”); Rodrigue, 1997 ME 99, ¶ 15, 694 A.2d 924

(involving a plaintiff who testified that she “slipped when she stepped on some of

the debris left on the stairs”); Thompson v. Frankus, 151 Me. 54, 58-61,

115 A.2d 718 (1955) (concluding that the evidence supported an inference of

causation when it established that the plaintiff fell from a step covered with

defective linoleum and there was no other explanation for the accident).
                                                                                  13

      [¶24] Here, the evidence is insufficient for a jury to reasonably infer that

there was a causal connection between either of the two defects in the stairway and

Lois Smith’s fall. In Addy, the plaintiff presented evidence sufficient for a jury to

infer that he fell from the dangerous staging. 2009 ME 46, ¶ 11, 969 A.2d 935.

Here, as the court correctly observed, Smith’s evidence of causation falls short of

the type of evidence presented in Addy, which itself was insufficient to withstand a

motion for summary judgment, because the present record would not even allow a

determination that Lois Smith fell when she was on the staircase.

      [¶25] Further, even if there were evidence allowing a jury to find that Lois

Smith fell from the staircase, the record would not allow a determination that she

had encountered either of its dangerous defects. Just as Smith’s own expert was

unable to determine whether Lois Smith used the handrail or traversed the section

of the staircase where the riser heights varied, a jury would not be able to make

such a finding without resorting to guesswork.        The circumstances here are

therefore distinguishable from those in Marcoux, Rodrigue, and Thompson,

because a jury would be left to speculate about whether Lois Smith came into

contact with the allegedly dangerous conditions and therefore whether her fall was

linked in any way to those conditions.

      [¶26] In short, as with the absence of causal evidence in Addy, the record

here is devoid of evidence that would allow a jury to make a reasonable finding of
14

how she fell. The record also is insufficient to allow a jury to determine even her

location at the time of the fall. Consequently, the evidence cannot support any

finding that the arguably unsafe premises bore a causal connection to Lois Smith’s

injuries, and Salvesen is entitled to judgment as a matter of law.7

         The entry is:

                           Judgment affirmed.



On the briefs and at oral argument:

         Michelle Allott, Esq., Farris Law, Gardiner, for appellants
         Eugene J. Smith and Estate of Lois Smith

         Elizabeth A. Germani, Esq., Germani Martemucci & Hill,
         Portland, for appellee Timothy Salvesen



Cumberland Superior Court docket number CV-2013-388
FOR CLERK REFERENCE ONLY




     7
      Salvesen also argues that Lois Smith had a number of medical conditions that could explain her fall
just as easily as the defective staircase. Because Eugene Smith has not made a prima facie showing that
the fall resulted from the condition of the staircase, the existence of alternative nonnegligent explanations
need not be considered.
