LAW OFFICE OF CARL D.

MCCUE, LLC
40 Western Avenue, P.O. Box 655
Hampden, Maine 04444-0655
Carl D. McCue, Esq.
Debra K. McCue, Esq.
Robert E. Girvan, III, Esq.
Christina S. Lewis, Esq.

FAX:

TELEPHONE:
(207) 862-5290
(207) 862-3133
TOLL FREE:
(800) 499-5734
E-MAIL:
mccuelawllc@roadrunner.com

April 25, 2014

Attn:
Re:

Our Client:
Juliane E. Shaw
Your Insured:Debra Burke
Claim No.:
JDA69842KC
Date Of Loss:
February 17, 2009

Dear Ms. Plante:

I represent Julian E. Shaw in the above-referenced claim. I am sending this
demand package in a good-faith effort to resolve this case.
STATEMENT OF THE FACTS
On February 17, 2009, Juliane Shaw and her family moved into a double-wide
trailer in Plymouth, Maine. Shaw entered into a verbal lease agreement with the trailer's
owner, Debbie Burke, for a month-to-month tenancy. Prior to the verbal lease agreement,
the landlord expressly agreed to maintain the premises in good repair. On February 17,
2009, just eight days after moving into the trailer, Shaw slipped and fell on the back steps
on the exterior of the trailer, suffering physical injury thereby.
The incident happened at approximately 6:30 a.m. on a clear and sunny morning
when there was no snow or ice present. Ms. Shaw went out the front door and went to
the back of the trailer and had attached her dog to a lead which was tied to the top of the
staircase. When the lead became caught on one of the steps, Ms. Shaw went down the
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stairs to free the lead, when she fell. Having been living in the trailer for only eight days,
this was the first time Shaw had ever stepped foot beyond the top step of the staircase.
Burke's brother had built the staircase as it existed at the time of the accident.
There were six steps in all, beginning approximately three inches from the threshold of
the trailer. The door leading out to the steps was hinged on the left side such that the door
opened towards the left. Further, there was a handrail on the left, but not right, side of
the stairs. Being that the door opened to the left, it was difficult, if not impossible, to
hold on to the railing when first stepping out onto the stairway. Last but not least, upon
information and belief, the stairway was in violation of the State of Maine building code
in that the steps were not level, too steep, and not secure, had no railing on the right-hand
side, and were unattached to the trailer.
In May 2009, several weeks after Shaw's accident, Burke hired Shaw's husband to
replace the stairway with an alternate design in an attempt to make them safer.

LIABILITY
Ultimately this case may be a jury question. This writer understands the pit falls
in proving liability, however also realizes there is a strong likelihood prevailing. In
evaluating this case, this writer reduces the demanded amount because of the unknown of
proving liability. Please keep in mind, however, in evaluating this case it also consists of
a high amount of special damages.

QUESTION PRESENTED

Is Burke liable to Shaw for the injuries Shaw suffered as a proximate result of her
slip and fall on the trailer's exterior stairway?

DISCUSSION OF AUTHORITY
I.
Landlord's Common-Law Duty Of Care To Tenant For Personal Injury
Suffered On The Leased Premises.
Assuming that a landlord-tenant relationship exists between Shaw and Burke, see
infra Part II, Burke's duty as a landowner "must be analyzed according to the law
governing landlord-tenant relations." Chiu v. City of Portland, 2002 ME 8, & 15 n.6, 788
A.2d 183, 188 n.6.
"A landlord is generally not liable for a dangerous condition that comes into being
after the lessee takes exclusive possession and control of the premises." Stewart ex rel.
Stewart v. Aldrich, 2002 ME 16, & 10, 788 A.2d 603, 606. Rather, the general rule is that
"the tenant, under the principle of caveat emptor, takes the property for better or worse."
Cole v. Lord, 160 Me. 223, 226, 202 A.2d 560, 562 (1964).
However:
Under three recognized exceptions to this rule, a landlord may be found
liable in situations where he: (a) fails to disclose the existence of a latent
defect which he knows or should have known existed but which is not
known to the tenant nor discoverable by him in the exercise of reasonable
care, Cole v. Lord, 160 Me. at 228, 202 A.2d at 562; McKenzie v.
Cheatham, 83 Me. 543, 22 A. 469 (1891); (b) gratuitously undertakes to
make repairs and does so negligently, Gregor v. Cady, 82 Me. 131, 19 A.
108 (1889); or (c) expressly agrees to maintain the premises in good repair,
Jacobson v. Leaventhal, 128 Me. 424, 148 A. 281 (1930). A landlord also
may be found liable in negligence for injuries caused by defective
conditions in common areas of a rented building over which he is deemed
to have control. Anderson v. Martson, 161 Me. 378, 213 A.2d 48 (1965).
Nichols v. Marsden, 483 A.2d 341, 343 (Me. 1984).

A.

Landlords Responsibility Concerning Steps

It has long been clearly established that a landlord has a duty to exercise
reasonable care to keep stairways and approaches which remain in the landlord's control
subject to use by tenants in safe repair. See Horr v. Jones, 157 Me. 1, 4, 170 A.2d 144,
145 (1961).
In a recent case from the Appellate Court of Connecticut, the court found that a
landlord retained exclusive possession and control over a walkway and stairway leading
to a rented premise. See Stein v. Tong, 979 A.2d 494, 500-01 (Conn. App. Ct. 2009)
(trial court did not err in crediting tenant's evidence that landlord had exclusive control
over sidewalk leading to stairway to leased premises where tenant tripped and sustained
injury). Although not stated explicitly, the Stein opinion suggests that the leased premises
was a single family home or the like, and thus analogous to the trailer here, rather than a
condominium or apartment complex.
At least, however, this may present a question of fact for the jury to consider. See
Rodrigue v. Rodrigue, 1997 ME 99, && 12-13, 694 A.2d 924, 926-27 ("Plaintiff
contends that she had no possession or control of the cellar stairs, let alone exclusive
possession and control. She denies that the stairs or the cellar were included in the leased
premises under the terms of her oral lease."; "Restricted access to the stairs does not, as a
matter of law, preclude a factual finding that plaintiff never obtained possession or, that
defendant has retained some control over the stairs themselves.").
B.

Latent Defect

As suggested above:

If, at the time of the letting, there is a latent or concealed defect in the
premises which renders their occupancy dangerous, and which is known to
the lessor, or should have been known to him, and which is not known to
the lessee or discoverable by him in the exercise of ordinary and reasonable
care, the lessor owes the duty to the lessee to disclose that defect to the
lessee, and a failure to do so is actionable negligence in the event that injury
results.
Cole, 160 Me. at 228-29, 202 A.2d at 563. In fact, this rule has specifically been stated
in the context of a stairway. See Rosenberg v. Chapman Nat'l Bank, 126 Me. 403, 139 A.
82, 83 (1927) ("If a landlord knows or should know of a concealed defect in such a
stairway, which menaces its safety, it is his legal duty to make it known to his tenant.").
"A 'latent defect' is one which is hidden from knowledge as well as from sight and one
which could not be discovered by ordinary and reasonable care." Cole, 160 Me. at 228,
202 A.2d at 563.
C.

Express Agreement to Make Repairs

Upon information and belief, Burke made an express promise to repair any part of
the stairway. Lawrence v. Celtic Holdings, LLC, 925 N.Y.S.2d 172, 174 (App. Div. 2011)
(pursuant to lease, building owner and its managing agent were contractually bound to
perform maintenance and repairs to area of staircase where plaintiff allegedly tripped and
fell).
D.

Unreasonably Dangerous

"The condition must be unreasonably dangerous, and the risk of injury

foreseeable." Weissenberger & McFarland, supra, ' 9.14, at 258 (citing, inter alia, Papa
v. Pittsburgh Penn-Ctr., 218 A.2d 783 (Pa. 1966); Smeriglio v. Conn. Sav. Bank, 29 A.2d
443 (Conn. 1942)); e.g., id.

Upon information and belief, however, Shaw could likely substantiate such a claim
regarding the stairway at the back of the trailer in this case. But cf. McCarthy v. First
Fin. Ins., 705 So. 2d 1137, 1142 (La. App. 1997) (even if condition of portable wooden
steps in front of mobile home caused trailer park resident's fall, steps were not
unreasonably dangerous such that owner or manager of trailer park could be held liable,
where resident presented no evidence comparing steps with other steps employed for
mobile homes and manager testified that he removed steps from vacant trailers to keep
children from attempting to enter those trailers; requiring trailer park owners to supply
concrete steps would pose too great of an economic burden, as well as prove impractical,
when compared to risk of injury posed by portable wooden steps). Here, in this case, in
comparing the steps of other trailer parks, the steps in this case clearly had a lesser
standard of maintenance. Ultimately this case may be a jury question. This writer
understands the pit falls in proving liability, however also realizes there is a strong
likelihood prevailing. In evaluating this case, this writer reduces the demanded amount
because of the unknown of proving liability. Please keep in mind, however, in evaluating
this case it also consists of a high amount of special damages.

INJURIES
The injuries sustained by Mrs. Shaw are set forth in the enclosed medical records.
All of her treating physicians clearly state that Mrs. Shaw sustained a severe lower back
injury which radiates down from her buttocks to the knees. Mrs. Shaw also suffers from
severe anxiety due to the severe pain in which she suffers on a daily basis. Please note in

the Medical Records from Sebasticook Regional Family Practice dated February 19,
2010, Cynthia Robertson, MD states .waitress who is here with anxiety. Gets racey
and face will turn bright red. Cannot move or exercise for thirteen months secondary to
back pain after an injury falling down eight wooden stairs. The medical records also
show that Mrs. Shaw attempted physical therapy and it proved to be unsuccessful in
treating her injuries and severe daily pain. She received spinal injections, and a nerve
root procedure conducted an anesthesiologist. Despite all of these treatments, she is still
suffering from severe, daily, ongoing pain and anxiety.
Because she is suffering from severe anxiety and depression she is currently seeing
a Psychologist, Dannel Starbird for treatment. I do not have the medical expenses of the
report at this time but will forward them to you upon receipt. We are currently waiting
for additional medical records and billing from Julia Long, MD of Orthopaedic Surgery
of Maine and Sebasticook Regional Family Care of Maine, in regard to the ulcers, Mrs.
Shaw developed due to the consumption of pain medication related to her injury. These
records will be forwarded to you upon receipt.

LOSS OF CONSORTIUM
Mrs. Shaw is forty-six (46) year old woman who has been married for since
September 6, 2009 to her current husband. Mr. Shaw would be an excellent and critical
witness who would testify that Mrs. Shaw was in severe pain after her injury, became
irritable, lost her sense of humor, was unable to perform her usual household activities,
and was not intimately available to her husband. Mr. Shaws biggest complaint was that

their social life suffered and the couple did not participate in the normal activities they
did in the past. We hope that because you require the signature of Mr. Shaw on the
release, adequate compensation would be considered on the loss of consortium claim.

PAIN AND SUFFERING

After Mrs. Shaw fell down the steps, she pulled herself up the steps and crawled
on the floor and managed to pull herself up onto the couch. She laid there for a period of
time and then drove herself to work. She works as a waitress at Anglers in Newport,
Maine. Because of the severe pain from the fall she could only work for a few hours.
The owner told her that she needed to leave and seek medical treatment right away. She
drove herself to Newport Family Practice immediately. At the medical facility she was
prescribed Percocet, Oxycodone/Acetaminophen for the pain.
Throughout all of the medical records, it clearly states that she experienced
chronic pain. Attempts were made to alter the medications, to find a better way to deal
with her pain and anxiety, all of which were unsuccessful. Additional medication
attempts consisted of the following: Ativan, Cymbalta, and Meloxicam. The treating
physicians and physical therapists that treated Mrs. Shaw would testify to the severe pain
and anxiety to which she suffered. Prior to the accident on February 17, 2009, Mrs.
Shaw enjoyed daily horseback rides. Since the accident, because of severe pain, her
previously enjoyable horseback riding was severely diminished.

LOST WAGES

Between the date of injury February 17, 2009 and October 1, 2010, Mrs. Shaw
worked very limited hours. Since October 1, 2010 she has not been able to work per
order of her physician, Julie Long from Eastern Maine Medical Center. It seems as
though Mrs. Shaw is permanently disabled.
Mrs. Shaw worked full time prior to the accident as a waitress at Anglers
Restaurant in Newport, Maine.
In 2008, Mrs. Shaw earned $13,353.00. I used this amount as base pay in 2008 to
calculate the below figures. Mrs. Shaw made $12,259.00 in 2009, so the lost wages
would be $1,094. In 2010, Mrs. Shaw made $7,634.00, so her lost wages on this amount
would be $5,718.00. She did not work at all in 2011. Therefore, her lost wages year to
date would be estimated to be $11,128.00 (Jan. Oct.). The total lost wages amount would
accumulate to $17,940.00. Enclosed please find Mrs. Shaws Social Security statement
along with her last earning statement from Anglers Restaurant.
Mrs. Shaws life expectancy is 34.3 years. Using the base pay of $13,353.00 per
year, multiplied by 19 years which would bring her to the retirement age of 65 would
estimate her future earnings to be $253,707.00.
Juliane E. Shaws Medical Expenses
As a result of the above-summarized medical treatment, Mrs. Shaw has incurred
significant medical-related expenses. To wit:
$19,131.00
$ 465.00
$ 373.00
$11,402.00
$ 485.00
$ 600.00
$ 6,501.25

Eastern Maine Medical Center

Northern Maine Radiology Assoc. of ME
NE Cardiologist Dr. Hoffman
Sebasticook Valley Hospital/Regional Family Care
Newport Family
Dannel H. Starbird, PhD
Rite Aid - Medications

$38,957.25

Total

*(These figures still excludes pending bills.)

SPECIAL DAMAGES
1. Medical Expenses:
2. Lost Wages:
3. Mileage: 1,936.9 miles @ $ 0.505 per mile
4. Prescriptions
5. Pain and Suffering
6. Future Lost Wages
TOTAL
=

VII.

$ 32,456.00
$ 17,940.00
$
978.13
$
6,501.25
$ 88,417.62
$ 253,707.00
$ 400,000.00

Conclusion
Based on Ms. Burkes liability and the particular facts thereof, as well as Mrs.

Shaw's significant injuries and damage sustained, I would recommend to Mrs. Shaw a
settlement figure of $400,000.00 in full satisfaction of all claims arising from the
accident. Otherwise, Met Life remains legally liable for these damages.
I have enclosed the following documentation for your review:
1.

Copy of all of Mrs. Shaw's medical records in our possession related

to her treatment stemming from the fall:
a. Newport Family Practice
DOS: 02/17/2009 7/30/2009
b. Sebasticook Valley Hospital
DOS: 06/03/2009 04/08/2011
c. EMMC Orthopaedic Surgery of ME Julie Long, MD
DOS: 12/16/2009 08/05/2010
d. Sebasticook Valley Hospital-Rehabilitation Services
DOS: 02/04/2010 02/25/2010
e. Rx Notes: Orthopaedic Surgery of Maine Julie Long, MD
DOS: 12/16/2009 Physical Therapy Referral
DOS: 09/24/2010 Out of Work-Julie Long, MD
f. Sebasticook Valley Regional Family Care
DOS: 02/19/2010 04/08/2011
g. Eastern Maine Medical Center
DOS: 03/09/2010 07/30/2010
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h. Eastern Maine Medical Center Letter

DOS: 10/07/2010
i. Eastern Maine Medical Center Procedure
DOS: 10/18/2010
j. Northeast Cardiology Assoc., PA
DOS: 03/28/2011
2.

Copy of all of Mrs. Shaw's medical bills in our possession related to

her treatment stemming from the fall:
a. Newport Family Practice
DOS: 02/17/2009 12/21/2009
b. Eastern Maine Medical Center
DOS: 02/16/2010 10/18/2010
c. Spectrum Radiology, North
DOS: 02/26/2010 07/26/2010
d. Sebasticook Valley Hospital/Regional Family Care
DOS: 06/03/2009 04/22/2011
e. Dannel H. Starbird, PhD
DOS: 10/15/2010 04/15/2011

3.

Copy of all of Mrs. Shaw's Prescriptions in our possession related to

her treatment stemming from the fall:
a.

4.

Rite Aid Pharmacy

DOS: 02/17/2009 05/06/2011

A list of the mileage to and from Mrs. Shaw's medical appointments

related to her treatment stemming from the fall:
a. Mileage Log

5.

Loss wage information regarding her income prior to her fall and
how loss wages were calculated.

If you have any questions or wish to discuss the foregoing, please do not hesitate
to contact me at the phone number listed above.
Sincerely,
Carl D. McCue, Esquire
CDM/eca
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cc:

Juliane E. Shaw (w/o encls.)

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