Knox County Jury Awards $85,000 In Which Both Parties Died Before Trial

A Knox County jury awarded $85,000 to the Estate of a Vinalhaven woman who fell through a trap door in a house she had just rented. Mary Ellen Foisy was cleaning before moving her belongings in when she fell through a hidden trap door in the master bedroom closet. She landed on the cellar floor below, suffering four broken ribs and a broken wrist that required surgery. The suit was against the landlord for leaving the trap door in place without warning Ms. Foisy about it.

Eleven months after the fall Ms. Foisy died of pancreatic cancer. Ms. Foisy’s son, Michael, who became the Personal Representative of her Estate, said, “Mom asked me to continue the case because she believed strongly that Mr. Schmidt should accept responsibility.” So he continued the suit. Incredibly, four days after Ms. Foisy’s death, Mr. Schmidt also died of cancer.

Attorney Daniel Kagan of Berman & Simmons represented the Estate. “It was a highly unusual circumstance. Sometimes one or the other party in a lawsuit dies before the case reaches trial, but for both plaintiff and defendant to die–it just doesn’t happen,” stated Kagan. When the insurance company refused to consider a settlement, Kagan pressed the case to trial. Without either a plaintiff or a defendant to testify, Kagan faced a difficult challenge in meeting the Plaintiff’s burden of proof. Attorney Kagan had to use nonconventional methods to present the case, such as the use of a Skype videotape deposition of a key witness located in Texas. Another challenge Attorney Kagan confronted was explaining Maine probate law to the jury which allows a case to continue through the person’s estate if the plaintiff or defendant dies. In his opening argument, Kagan explained, “Death does not extinguish a plaintiff’s claim for damages. Nor does death absolve a defendant from the harm he causes through negligence.”

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