Mixer v. Tarratine Market, corrected 3-11-99
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1999 ME 27
Docket: 	Han-98-340
Submitted
on Briefs:	January 25, 1999
Decided:	February 11, 1999	


Panel: 	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER and
CALKINS, JJ.

BESSIE MIXER

v.

TARRATINE MARKET

CALKINS, J. 

	[¶1]  Bessie Mixer appeals from a judgment entered on a jury verdict
in the Superior Court (Hancock County, Marsano, J.) in favor of Tarratine
Market in a slip and fall negligence action.   On appeal, Mixer contends that
the court erred in failing to give requested jury instructions and by
admitting evidence of her balance problems.  We affirm the judgment.
	[¶2]  On January 31, 1993, Bessie Mixer, age 68, slipped and fell a few
feet outside the entry door to Tarratine Market.  She had walked to the
market which was a ten minute walk from her home in Castine.  She
purchased two items in the market and was exiting when she fell.  She
broke her hip.  It had been snowing for several hours before Mixer's fall. 
There was conflicting evidence as to how much snow had fallen and what
efforts Tarratine's employees made to clear the snow from the entry ramp.
	[¶3]  Mixer brought this negligence action against Tarratine in which
the jury found that both Tarratine and Mixer were negligent and that
Mixer's negligence was equal to or greater than Tarratine.  Accordingly, 
judgment was entered for Tarratine.

I.  Jury Instructions

	[¶4]  The primary issue on appeal concerns the jury instructions.  The
trial court charged the jury in basic and general terms regarding the duty of
a landowner to use ordinary care to make his premises reasonably safe:

In evaluating the question of negligence in this case, if you find
that there was a condition of the premises which created a risk
of injury to persons using the premises and you find that the
condition was or should have been apparent to persons on the
premises, then you should recognize the following:  Any person
has a duty to take reasonable care for their own safety.  That duty
includes the duty to see that which is to be seen and to exercise
reasonable caution regarding risks which are apparent to be
seen.  Even if the condition of the premises which creates a risk
of injury is or should be apparent to persons on the premises,
the owner of the premises has a duty to warn of or take other
reasonable actions to correct or avoid the condition if the owner
should anticipate that persons using the premises will
nevertheless encounter the condition or because the person is
likely to be distracted. 

	[¶5]   Mixer does not contend that the instruction misstated the law. 
She simply argues that the court should have given her requested
instructions.  Mixer submitted fifteen repetitive and overlapping
instructions on the duty of a landowner in maintaining premises, and several
referred to conditions of snow or ice.  
	[¶6]  When the jury instructions given by the court are substantially
correct, the refusal of the trial judge to give further amplifying instructions
is reviewed for abuse of discretion.  See Larochelle v. Cyr, 1998 ME 52,
¶ 12, 707 A.2d 799, 802.  A party is entitled to a requested jury instruction
when that instruction "(1) states the law correctly; (2) appears to be
supported by the facts of the case; (3) is not misleading or confusing; (4) is
not already sufficiently covered in the given charge; and (5) when refusal to
give the instruction would result in prejudice to the party requesting it."
Emery v. Hussey Seating Co., 1997 ME 162, ¶ 8, 697 A.2d 1284, 1287. 
Mixer's requested instructions generally met the first requirement above in
that they stated the law correctly.  Some met the second requirement
because they were supported by the facts of the case, but several, which
were quotes from Isaacson v. Husson College, 297 A.2d 98 (Me. 1972), refer
to specific facts in that case that were not present in this case.  
	[¶7]  More important, the points made by Mixer's proposed
instructions were covered sufficiently by the charge that was given.  We have
repeatedly found no abuse of discretion where the trial court has covered
the relevant law in a relatively short general instruction and declined to
tailor its instructions in detail to fit the particular facts of the case.  See
Lambert v. Tripp, 560 A.2d 1097, 1100 (Me. 1989) (finding no abuse of
discretion in negligence instruction covering duty of care but not defining
duty owed by motorists to children near the road); see also Bailey v. Sears,
Roebuck & Co., 651 A.2d 840, 843 (Me. 1994); Olsen v. French, 456 A.2d
869, 877 (Me. 1983).  Here the trial court's instructions adequately defined
Tarratine's duty of care.  While an instruction which refers to snow would
have been appropriate, this jury had listened to several witnesses testifying
about how much snow had fallen and what had been done to remove it.  It
would have been obvious to the jury that snow was the "condition" referred
to in the instruction that was given.  The trial court did not abuse its
discretion in declining to give proposed instructions that covered in
unnecessary detail what the given charge explained adequately.
	[¶8]  Finally, even if the trial court should have given one or more of
Mixer's proposed instructions, she suffered no prejudice from its refusal to
do so.  The proposals related to the duty of Tarratine to remedy the
condition caused by the snow.  Even without the proposed instructions, the
jury found that Tarratine was negligent.  It also found, however, that Mixer
was equally or more negligent than Tarratine.  In a similar situation in which
the jury found both the plaintiff and defendant negligent we held that failure
to give the plaintiff's requested instruction, amplifying the defendant's duty,
was not prejudicial.  See Thomas v. Wilson, 356 A.2d 737, 739 (Me. 1976)
(per curiam).  Mixer fails to explain plausibly how she was prejudiced by the
failure to give her requested instructions.

II.  Evidence

	[¶9]  The remaining issue concerns the deposition testimony of Dr.
Philip Kimball, Mixer's medical expert and treating physician, which was
read to the jury.  Dr. Kimball testified that when he treated Mixer for her
broken hip, she told him she had had balance problems and weakness in her
left leg as a result of back surgery in 1988.  Mixer moved in limine to
exclude that particular portion of the deposition, and the motion was
denied.   
	[¶10]  Mixer objected to the evidence on the ground that it is
inadmissible character evidence.  See M.R. Evid. 404(a).  Evidence of a
balance problem, however, is not character evidence; it is evidence of a
physical condition.  A leading treatise states: "A person's physical
characteristics, e.g., color-blindness, clumsiness, or strength, should not be
considered as part of his character for purposes of Rule 404.  Such traits are
capable of objective proof or disproof and present little danger of prejudice
. . . ."  22 Wright & Graham, Federal Practice & Procedure § 233, at 355
(1978); see also Field & Murray, Maine Evidence § 404.11, at 143 (4th ed.
1997).  Mixer further argues that the trial court erred in admitting the
evidence in light of M.R. Evid. 403.  She has failed to demonstrate that the
trial court abused its discretion in finding that the probative value was not
outweighed by the danger of unfair prejudice.
	The entry is

Judgment affirmed.

Attorney for plaintiff:

Arthur J. Greif, Esq.
Gilbert Law Offices, P.A.
P O Box 2339
Bangor, ME 04402-2339

Attorney for defendant:

John C. Walker, Esq.
P O Box 1206
Windham, ME 04062