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DIFIORE v. CASCO NORTHERN BANK3/12/1993
Casco Northern Bank, N.A., appeals from a judgment entered in the Superior Court (Cumberland County, Silsby, J.) in favor of plaintiff Leo DiFiore on his personal injury claim. After a bench trial, the court determined that the Bank, through its employee, was negligent and DiFiore was not contributorily negligent. The court assessed damages of $40,000 and, accordingly, entered judgment for DiFiore in that amount. We affirm the judgment.
I.
Leo DiFiore had a stroke in 1947 that left him paralyzed on his right side and unable to speak but for a few words and sounds. Over several years, DiFiore learned to communicate with those close to him through sounds, hand gestures, and facial expressions.
On December 15, 1987, DiFiore drove his car to the drive-through window of Casco Northern Bank to cash a check. Because the window in his car malfunctioned, he opened the door to conduct the transaction. He held on to the armrest on the door, pulled himself up, and stood outside on his left leg. The teller then opened the transaction drawer. DiFiore felt and heard the drawer hit the car door which, in turn, hit his left knee.
After a couple days of severe pain, DiFiore went to Mercy Hospital to have his knee examined. He then consulted a second doctor, who drained fluid from his knee on two occasions. He next had three office visits with a third doctor. Finally, DiFiore went to a fourth doctor at the Togus VA Hospital, who drained fluid from his knee three times. Although his third doctor diagnosed the condition as either a torn meniscus or a degenerative lesion on the femur caused by a traumatic injury, and recommended surgery, DiFiore declined surgery because he was afraid of the prospect of losing the ability to walk.
There was evidence that before December 15, 1987, DiFiore did all of the cleaning, laundry, and grocery shopping for the household. He shoveled snow and frequently washed his car. He walked regularly, played beano four times per week, frequently went shopping and to flea markets with his wife, and enjoyed dancing with her. After the accident, however, DiFiore's participation in those activities either ended or was greatly diminished.
Alfred DiFiore, the plaintiff's son, testified about markings on the plaintiff's car and the damages that DiFiore had suffered as a result of the accident. The Bank sought to have Alfred DiFiore disqualified as an "interpreter" for his father. Furthermore, the Bank filed a motion in limine to exclude the plaintiff's testimony on the ground that he was not competent. The Bank argued that DiFiore could not adequately express himself so as to be understood and that he lacked reasonable ability to remember. The trial court denied the motion.
At the end of the bench trial, the court found that DiFiore was a business invitee of the Bank and that the teller acted as the Bank's agent. The court found that the teller's actions were negligent and that there was no contributory negligence on the part of the plaintiff. With respect to damages, the court found that there was no loss of income suffered, there were $337 in special damages, a torn meniscus that might require surgery costing $4,000 to $5,000, fear that surgery would confine the plaintiff to a wheelchair, pain and suffering resulting from the injury, and considerable diminution in plaintiff's lifestyle. The court further found that the injury was permanent and the condition continuing.
II.
The Bank argues that the trial court erred in determining that DiFiore was competent to testify, both because he was incapable of expressing himself concerning the matter so as to be understood by the judge either directly or through
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