The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. CV-01-023
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PEBBLEDENE TRUST, et al.,
Plaintiffs
“ ORDER
TOWN OF YORK, et al., Law Ligpagy
Defendants . FEB ¢ oo
The plaintiffs have filed an 11 count amended complaint against the Town of
York and five employees of its Public Works Department resulting from hedge
trimming and an alleged assault. The defendants have moved for summary judgment
and both sides have presented detailed written submissions. The issues, while legally
complex for a brief occurrence, can be readily resolved at the summary judgment level.
As a trial is likely to be lengthy the Superior Court is willing to conduct an additional
settlement conference, with either the assigned Justice or another Justice presiding, if
both sides believe it would be productive to do so.
The first issue is whether Eileen Ceccanti, as the non-owner of the property, has
the right to bring a number of the claims. The answer is that she does either as the
possessor of the property or because she has claims that relate to her person rather than
the property.
The second issue is whether the individual defendants are entitled to qualified
- immunity on the state, Count I, and federal, Count IL, civil rights claims. The standard
is the familiar one set out in Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738,
73 L. Ed. 2d 396 (1982) and referred to in such cases Lyons v. City of Lewiston, 666 A.2d
95, 99 (Me. 1995) and Creamer v. Sceviour, 652 A.2d 110, 113 (Me. 1995). The issues are
whether the plaintiffs’ constitutional rights were violated and whether those rights
were so clearly established that reasonable defendants would have known that their
specific actions violated those rights. Harlow at 818. A resolution of these issues
depends upon what the facts are. If the plaintiffs are correct that the defendants knew
that there was a boundary dispute, trespassed anyway, deliberately destroyed property
and threatened and assaulted Ms. Ceccanti, then there is no qualified immunity for the
individual defendants. If there was no trespass and no assault then qualified immunity,
while providing protection and eliminating the need for a trial on some issues, is
unnecessary aS nO wrongs were committed. If there was an honest dispute as to what
the boundary was and any assault was done in self-defense to protect against the
alleged aggressive obstructionist acts of Ms. Ceccanti,then the plaintiffs will not recover
on Counts I and Il.
At this point there are factual disputes which preclude the granting of summary
judgment for the Town employees based on qualified immunity. The law is clear that
trespass, destruction of the property of another and assault are violations of clearly
established constitutional rights.
However, since there is no indication that the Town of York has established a
policy that violates the Constitution, summary judgment will be granted for the Town
on Counts Tand Il. Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct.
2018, 2037, 56 L. Ed. 2d 611 (1978). “Likewise, there is no failure of training which
reflects an indifference to the constitutional rights of the residents of the Town. City of
Canton v. Harris. 489 U.S. 378, 388, 109 S.Ct. 1197, 1204, 103 L. Ed. 2d 412 (1989).
The third issue is whether there is discretionary function immunity under 14
M.R.S.A. §8111(1)(C). While the four factors listed in Darling v. Augusta Mental Health
Institute, 535 A.2d 421, 426 (Me. 1987) are only guides in determining the existence of
discretionary function immunity this case really involves a boundary dispute, the
cutting of a hedge and apparently an agitated plaintiff and persistent defendants, some
of whom were involved in a minor altercation. Discretionary function immunity is
designed for cases involving policy choices and the exercise of a more profound
discretion.
The final issue is whether a portion of the amended complaint must fail because
the plaintiffs do not own as much land as they claim. There are two surveyors who
reach different conclusions and the boundary cannot be determined now.
The parties are reminded that this case has been made more complex than it
should have been. While there are significant factual disputes regarding what the
boundary is, whether a trespass took place, whether an assault existed and whether
civil rights liability exists, there are more counts and issues than are necessary for a fair
determination by a fact finder should the case not settle. Further settlement
_ discussions, preceded by a reexamination of the case by both sides, are recommended.
If the Court can help in those discussions we would be most willing to assist.
The entry is:
Defendants’ motion for summary judgment is granted in part. Judgment
for the Town of York on Counts I and II of the amended complaint.
Motion otherwise denied.
Dated: January 27, 2004
Tot b Jak reko
Paul A. Fritzsche ¢
Justice, Superior Court
John C. Bannon, Esq. - PLS
Edward R. Benjamin, Jr., Esq. — DEFS