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STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION

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PAUL BOOKER,
Plaintiff

v. ORDER
FOUR SEASONS JANITORIAL

CONTRACTOR, INC. et al.,
Defendants

This matter is before the court on defendant Four Season Janitorial Contractor, Inc.'s motion for summary judgment.1 In his complaint, plaintiff alleged that defendant maintained and provided services to the Bank of America premises (formerly Fleet Bank) located at 33 Main Street, Waterville, Maine, and that plaintiff, on January 14, 2005, while lawfully on the premises and while exercising due care and caution for his own safety, fell on the stairs in the Bank of America premises located at 33 Main Street, Waterville. He alleges that his injuries and damages were caused solely by and were the direct and proximate result of negligent acts of the defendant. Most specifically, plaintiff asserts that the defendants allowed to exist and did not take reasonable measures to rectify a dangerous condition located on the stairs, failure to abate a nuisance, allowing the existence of a dangerous slippery condition on the stairs, failure to properly inspect the property, and failure to maintain the stairs in conformance with recognized standards of safety and otherwise being negligent under law.
The defendant's motion for summary judgment argues that such judgment is warranted because the undisputed facts establish that the defendant is entitled to judgment as a matter of law and that there is no evidence that the defendant breached any duty owed to the plaintiff.
The respective statements of material fact reveal that on the morning of January 14, 2005, plaintiff, in accordance with his managerial responsibilities to the Bank, was inside the Bank of America at 33 Main Street in Waterville. While preparing to open the Bank and unlock the rear entrance door for the Bank patrons, he slipped on the top of the stairs that descend to the rear entrance and fell. In the defendant's statement, he states that plaintiff does not know "actually what caused [his] fall." (Citing plaintiff's dep.) Plaintiff responds that while plaintiff said that he did not notice any foreign substances, he knew the floors were slippery due to cleaning residue. In response to defendant's statement that the plaintiff testified that there were no foreign substances on the stairway or in the area of the fallon the date of the accident, the plaintiff responds that his deposition testimony did not say there "were no foreign substances on the stairway or in the area of the fall on the day of the accident," rather, the plaintiff testified that he did not notice any foreign substances. He seeks to establish that there is a difference between "there was none" and he did not notice any. The statements agree that the plaintiff did not see any residue or moisture on the stairs or in the area of the
fall on the date of the accident.
To defendant's statement that no witnesses saw any foreign substance, residue, or moisture on the stairs or in the area of the fall on the day of the accident, the plaintiff responds that one witness had no recollection of whether the floors were wet or dry and no recollection of any foreign substances, another witness had no knowledge as to why the plaintiff fell or what caused him to fall, and a third witness testified she was not aware of whether or not the floors were wet with any substance or any substance being
on the ground. To the statement of the defendant that no one knows what caused the
plaintiff's fall, the plaintiff responds that while he said he did not notice any foreign
substances, he knew the floors were slippery due to cleaning residue.
Defendants supplied a supplemental statement of material fact in which he
asserts the defendants were notified that customers were slipping on the floor, that his
foot slipped out from under him because the floor was slippery, that the floor was not
slippery because of water on the tile floor, that it was slippery because of residue left on
the floor by the cleaners, and the defendant acknowledged that there was a problem
with the slippery condition of the floors and certain conversations had taken place
constituting notice to the defendants. These statements refer to plaintiff's deposition, his
affidavit and his answers to interrogatories.
As to notification to the defendant of the dangerous condition, plaintiff describes a conversation with a third party in which he understood that other conversations had taken place with the defendant. He claims he has no knowledge as to the individual's relation to either of the defendants.
In his deposition of November 10, 2008, plaintiff testified that he did not notice any foreign substances in the stairway after he fell, nor was there any moisture on the stairs, and he did not remember any residue on the floors on the day of the accident. The response to the question, "Did you observe anything about the stairs where you fell at any time either when you fell or when you went back up?" His response was "No, not that I remember." The next question was, "Do you recall looking at the ground in that general area to see how it was that you had fallen?" His response was, "I don't remember." Later in the interrogatories the defendant stated that his information with respect to a white residue ostensibly from a deicing compound was received from another employee who heard it from a third contractor. Then, the plaintiff was asked,
"Mr. Booker, since you didn't see any residue on the stairs or near the area where you
fell on the date of your fall, do you have any reason to believe that it was actually
residue that caused you to fall?" The plaintiff's response under oath was, "1 would say
I'm not sure actually what caused my fall."
Plaintiff answered interrogatories on September 30, 2008. He testified in a deposition on November 30, 2008. In opposition to defendant's motion for summary judgment, he filed an affidavit dated July 31, 2009. Notwithstanding his testimony in the deposition and answers, his affidavit asserts that the floor was slippery because of an unidentified cleaning process leaving residue on the floor and that the subject had been discussed with the defendants. In spite of his testimony that he saw no residue on the surface he slipped on, his affidavit insists it was the residue which created the dangerous condition. The court declines to find material issues of fact based on an affidavit which is inconsistent with sworn testimony and sworn answers.
The defendant is entitled to a summary judgment in its favor if the evidence presented by the plaintiff in opposition to a motion for summary judgment would, if produced at trial, entitle defendant to a judgment as a matter law. Addy v. Jenkins, Inc., 2009 ME 246, 969 A.2d 935. The first matter that must be established is the presence of negligence. While the plaintiff has speculated that the condition of the floor was caused from a residue of deicing compound brought in from the parking lot, the plaintiff has unequivocally established that he did notsee any white residue in the area of his fall. In the presence of lack of direct evidence of notification to the defendant that it was creating a slippery condition in its treatment of the deicing compound, it must then consider whether there is evidence of a dangerous condition.
The defendant relies on Houde v. Millett, 2001 ME 183, 787 A.2d 757. In that case, the plaintiff asserted that chimney soot on the kitchen floor presented a slippery condition causing her to fall and receive injuries. There was evidence that such soot had been present on the floor at some previous time but the plaintiff stated she cleaned the floor before her fall. She relied solely on having found some evidence of soot on the knee of her pajamas that she had been wearing to establish that the soot caused the fall. The Court found that the plaintiff had failed to present sufficient evidence to support a finding by the fact finder that it was soot that caused her to slip. It further notes that "she acknowledges that neither she nor anyone else had seen any soot on the floor of the kitchen on the morning of her accident or immediately following her fall. Absent some evidence more directly establishing that the soot was the cause of her fall, a fact finder cannot reasonably conclude, without engaging in speculation that it was soot that caused her to slip." Houde v. Millett, 2001 Me. 183; 787 A.2d 760. Also noteworthy is Durham v. HP Corp., 2005 lYlE 53,870 A.2d 577.
It is clear that a plaintiff may under many circumstances be completely unable to remember or account or explain an accident, but nevertheless recover if the deficiency is met by other reliable evidence. The issue is one of probability versus possibility. In the dissent in Addy v. Jenkins, 2009 ME 246, 969 A.2d 935, the analysis indicates that where an inference is rational and flows logically from the evidence, it may be considered by the fact finder. The analysis goes on to say that if there are multiple reasonable inferences, and they are not equally probably, the fact finder may consider them~ It is only if the inferences are equally probable that evidence is speculative." Addy v. Jenkins, 2009 A.2d 246, 969 at 940.
In the present instance, at the time of the injury, there is no evidence that the unseen residue was a more probable cause than any other of the accident.
The entry will be: Defendant's motion for summary judgment is GRANTED.
DATED:
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Maine Law