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Saturday, October 19, 2019

UMS student missed filing deadline in slip-and-fall case, Maine's high court rules

By Karen Kidd | May 2, 2017

PORTLAND, Maine (Legal Newsline) – A University of Maine System student waited too long to file a notice of claim after being insured in a slip-and-fall on campus, the state's highest court ruled recently in affirming a lower court ruling.

Aleshia D. Diviney had 180 days to file a notice after suffering injuries in a fall on UMS' campus in 2014 but she missed that deadline, according to a decision handed down by the Maine Supreme Judicial Court on March 28. That 180-day notice is required to government entities under Maine's statute, §8107.

"Diviney failed to submit sufficient evidentiary support as to 'why notice could not have been reasonably filed' within the 180-day filing period, or more specifically, during those remaining sixty-three days," the Maine high court decision said. "Because the record contained no disputed material factual issues, and the court properly applied the language of section 8107 to the facts available in the record, the trial court did not err in granting summary judgment for UMS."

The case stems from Diviney's fall in icy conditions outside her USM dormitory on Jan. 17, 2014, in which Diviney suffered a broken leg, torn ligaments and later required surgery to repair the injuries, according to the lawsuit. 

A few weeks later, Diviney's father emailed the university's risk management office about her injuries. "He also stated that he hoped the University would assume some degree of responsibility, because the incident stemmed from maintenance of walks, steps and parking areas on the campus," the lawsuit said.

The university's vice president of risk management expressed sympathy and recommended she file an incident report, in addition to asking whether a claim would be filed, court documents state. The father replied that neither he nor his daughter planned to involve legal counsel because they had faith that the university would satisfy medical and other related expenses.

Email correspondence continued intermittently between Diviney's father and the risk management office for weeks after over topics that included a need for an investigation, production of medical records and the incident report. The matter ultimately, but still within the 180-day notice deadline, was referred to an insurer who informed the family they likely would not recover very much, though they could expect to receive something. Ultimately, the insurer denied the claim but 63 days still remained if 180-day notice deadline.

A personal injury attorney was hired at the end of October and a formal notice of claim was served 170 days after the insurer formally denied the claim.

The trial court granted the university's motion for summary judgment, saying the plaintiff had not filed a notice that satisfied the 180-day deadline. The trial court also maintained the plaintiff failed to show good cause as to why that notice was not timely filed.

Diviney appealed the case and the high court heard arguments Feb. 7 and then handed down its ruling later the following month, affirming the lower court's summary judgment in the case.

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