McBreairty v. Jordan's Store, Inc.

STATE OF MAINE SUPERIOR COURT

Cumberland, ss

Civil Action \,

Docket No. CV-04-488

. ve lee

A Boat

PAULA McBREAIRTY,

Plaintiff

DECISION AND ORDER

v. ON DEFENDANT'S MOTION FOR

SUMMARY JUDGMENT

JORDAN’S STORE, INC. *

Defendant

I. NATURE OF CASE

This is an action for personal injury to plaintiff’s ankle which she alleges

occurred when she stepped out of her vehicle before going into the defendant's store.

On August 22, 2003, plaintiff Paula McBreairty parked her car in front of Jordan’s

Store on Long Beach in East Sebago. As she stepped out of her car she stepped into a

pothole, rolled her left ankle and collapsed. She claims that the defendant, Jordan’s

Store, Inc. (Jordan’s), was negligent in its repair of the potholes in front of its store.

Plaintiff originally filed this complaint in the District Court at Bridgton. The

defendant removed the case to Superior Court, M.R.Civ.P. 76C, and requested a trial by

jury.

If. MOTION FOR SUMMARY JUDGMENT

The defendant has filed a motion for summary judgment, M.R.Civ.P. 56, alleging

that the pothole in question was not located on its Property but located in the roadway

on State property. Defendant argues that it has no duty to ensure that the State owned

land in front of its lot is in perfect repair.

Plaintiff responded to the motion, but did not properly dispute defendant’ s

statements of material fact. Instead of denying, admitting or qualifying them, plaintiff

chose to reword the facts. Therefore, because plaintitf did not deny or qualify any of

defendant's facts, all of the defendant's facts are deemed to be admitted. M.R.Civ.P.

56(h)(2).’ See also, Stanley v. Hancock County Commissioners, 2004 ME 157,

713,__ A 2d (“A party’s opposing statement of material facts must

explicitly admit, deny, or qualify facts by reference to each numbered paragraph, anda

denial or qualification must be supported by a record citation.” [Internal quotations

and citations omitted]).

In opposing defendant's request for summary judgment, the plaintiff

alternatively asks the court to grant summary judgment for her. Even though she did

not properly contest defendant’s facts, she did file a separate Statement of Material

Facts which was properly replied to by defendant.

III. DISCUSSION

A. Undisputed Facts.

Based on the defendant's Statement of Material Facts and M.R.Civ.P. 56(h)(2), the

court finds that the following facts are notin dispute:

I. Plaintiff was injured when she stopped her car at the side of the road in

front of defendant's store. (Defendant's statement of material facts { 1)

(DSMF J __).

2. Plaintiff stepped into a pothole and injured her ankle. (DSMF { 1).

3. The pothole was not located on the defendant's property. (DSMF { 2).

4. The pothole was located on State property. (DSMF { 3).

' M.R.Civ.P. 56 (2004), Summary Judgment

(h)(2} A party opposing a motion for summary judgment shall submit with its

opposition a separate, short, and concise statement of material facts. The opposing

statement shall admit, deny or qualify the facts by reference to each numbered paragraph of

the moving party’s statement of material facts and unless a fact is admitted, shall support

each denial or qualification by a record citation as tequired by this rule. Each statement

shall begin with the designation “Admitted,” “Denied,” or “Qualified” (and, in the case of an

admission, shall end with such designation), (emphasis added).

5. The plaintiff filed a notice of claim with the State. (DSMF q 4).

6. The State responded that it was immune from suit. (DSMF ¥ 5).

B. Disputed Facts.

In support of her own request for summary judgment, plaintitt offers a statement

of five separate facts that were properly denied or qualified by the defendant.

1. Plaintiff was injured when she stepped out of her vehicle into a pothole in the

parking area of [defendant's store]. (Plaintiff's statement of material facts qT 1)

(PSMF J ___). (Qualified by defendant) ?

2. The pothole was located on the boundary between the defendant's property

and the State of Maine’s property. (PSMF 2). (Denied).

3. The pothole was located in the area commonly used to access the defendant's

parking area. (PSMF { 3). (Qualified).

4. The defendant had knowledge of and/or repaired potholes located on

state owned land in the past. (See PSMF {{{ 4, 5). (Qualified).

However, even to the extent that any of these facts remain in dispute, they are

not sufficient to counter the facts alleged by defendant and defeat the Motion for

Summary Judgment.

Ill. DISCUSSION

Defendant alleges that the pothole in question was not on its land; rather it was

on land owned by the State of Maine. Plaintiff did not directly counter this, but argues

generally that; (1) that the pothole was on the boundary line between the defendant's

land and that of the state; and, (2) that the defendant has a duty to maintain the

“parking area typically and customarily used as access to the parking area.” Both

arguments rest on the premise that defendant was responsible for repairs to land that it

did not own.

A. Duty to Repair.

* These facts, as set out by plaintiff, are summarized in whole or in part.

Plaintiff's opposition to the Motion for Summary Judgment admits that plaintiff

“injured herself by stepping into a pot hole located at or in close proximity to Jordan’s

property boundary.” See plaintiff's opposition to defendant’s Motion for Summary

Judgment. Clearly, if the pothole was located on the defendant's land, it would have a

duty to repair the pothole and/or warn patrons of its existence. However, it is admitted

that the pothole was not, in fact, on the defendant's property but in the roadway that is

owned and maintained by the State.

To make out a prima facie case of negligence, a plaintiff must establish that a

duty was owed, that the duty was breached, and that the plaintiff's injuries or damages

were proximately caused by the breach of that duty. Parrish v. Wright, 2003 ME 90, { 8,

828 A.2d 778, 783.

In order to avoid summary judgment, a plaintiff must make a prima facie

showing of each element of the negligence claim. Champagne v. Mid-Maine Medical Ctr.,

1998 ME 87, 7 9, 711 A.2d 842, 845. Whether one party owes a duty to another is a

question of law. Trusiani v. Cumberland & York Distributors, 538 A.2d 258, 261 (Me.

1988). A possessor of land has a duty to use reasonable care towards all persons who

are lawfully on the premises. Quadrino v. Bar Harbor Banking & Trust Co., 588 A.2d 303,

304 (Me. 1991), see also Joy v. Eastern Maine Medical Center, 529 A.2d 1364, 1365 (Me.

1987).

Before the court can determine whether a defendant owes a duty of care toa

plaintiff, it must be established that the defendant was, in fact, the possessor of the land

at the time of the injury. Quadrino, 588 A.2d at 305, A possessor of land is one who

manifests intent to control the land. Id., see also Hankard v. Beal, 543 A.2d 1379, 1378 (Me.

1988). There is no evidence in the record that the defendant possessed or had intent to

possess the State’s land in the roadway.

The defendant did not have any possessory interest in the land where the

pothole was located; therefore, the defendant did not owe the plaintiff a duty of care.

B. Duty to Maintain.

Plaintiff cites several Maine cases for the proposition that owners are responsible

for maintaining the entrance to their properties. All of the cited cases, however, deal

with injuries that actually took place on land that the defendant owned. Shaw v. Piel,

139 Me 57, 27 A.2d 137 (1942) (plaintiff was injured by an open trap door in defendant's

greenhouse) °, Orr v. First National Stores, 280 A.2d 785 (Me. 1971) (injury took place

inside defendant's store).

Defendant Jordan’s Store did not own the land upon which plaintiff was injured

and had no duty to maintain or repair it.

C. Duty to Warm.

The Law Court has held that there is no general obligation to protect others from

harm not created by the actor. Bryan R. v. Watchtower Bible & Tract Society of N.Y., 1998

ME 144, J 12, 738 A.2d 839, 844. Without a relationship of some type between the

parties, there is no generalized duty to protect others from a dangerous situation unless

3 Plaintiff also cites to Carleton vy. Franconia Co., 99 Mass 216 (1868), which is quoted in Shaw:

The owner or occupant of land is liable in damages to those coming to it, using due care,

at his invitation or inducement, express or implied, on any business to be transacted with

or permitted by him, for an injury occasioned by the unsafe condition of the land or of the

access to it, which is know to him, and not to them, and which he had negligently

suffered to exist and has given them no notice of.

id, However, in this case, though the plaintiff was going to do business with the defendant, she was not

on land that he owned or occupied when she was injured. There was no testimony that any of the

defendant’s employees knew about the pothole. The fact that one of defendant’s employees filled the

hole after plaintiff injured herself is not enough evidence to conclude that defendant had, at some

previous time, assumed the responsibility to fix any and al] potholes in the vicinity.

one creates the situation. Id. at [ 14, 738 A.2d at 845. The requirement that a person

protect others from dangers he creates rests on the premise that the person knows or

should know of the danger.

Although the Law Court has held that non-possessors of land who negligently

create a dangerous condition on land may be liable for reasonably foreseeable harms,

the defendant did not create this condition, the wear on the road did. See Colvin v. A. R.

Cable Services-ME, Inc., 1997 ME 163, { 7, 697 A.2d 1289, 1290 (Defendant installed a

cable box that interfered with passage on an outside stairway to an apartment house.).

The duty to warn regarding dangerous conditions on the land rests with the

landowner if the danger is artificial. Radley v. Fish, 2004 ME 87, { 10, 856 A.2d 1196,

1200. In this case, the duty to warn regarding the pothole, if there was such a duty,

rested with the State of Maine, not the defendant.

IV. DECISION AND ORDER

There are no material facts that remain in dispute. The clerk will make the

following entry as the Decision and Order pf the court:

1. Detendant’s Motion for summary judgment is granted.

2. Judgment for defendant without costs.

SO ORDERED.

Dated: at 2005 (>

Thomas ERelahaity U ~

Justice, Supert ourt

PAULA MCBREAIRTY - PLAINTIFF SUPERIOR COURT

CUMBERLAND, ss.

Attorney for: PAULA MCBREAIRTY Decket No PORSC-Cy¥-2004-00488

MIKLOS M PONGRATZ - RETAINED 08/03/2004

ROBERT M NEAULT & ASSOCIATES, PA

68 ROOSEVELT TRAIL DOCKET RECORD

PO BOX 1575

NAPLES ME 04055

VS

JORDANS STORE INC. - DEFENDANT

Attorney for: JORDANS STORE INC,

TRACY HILL

- RETAINED

GERMANI & RIGGLE, LLC

93 EXCHANGE ST

PORTLAND ME 04101

Filing Document: NOTICE OF REMOVAL Minor Case Type: OTHER PERSONAL INJURY TORT

Filing Date: 08/03/2004

Docket Events:

08/03/2004

08/04/2004

08/04/2004

08/09/2004

08/10/2004

08/10/2004

08/10/2004

08/16/2004

PILING DOCUMENT - NOTICE OF REMOVAL FILED ON 08/03/2004 :

ALL PAPERWORK RECEIVED FROM STH DISTRICT COURT, DIVISION OF NORTHERN CUMBERLAND COUNTY

(DISTRICT COURT DOCKET NO: BRIDC-CV-2004-79}.

Party(s}: JORDANS STORE INC.

ATTORNEY - RETAINED ENTERED ON 08/03/2004

Defendant's Attorney: TRACY HILL

Party(s): PAULA MCBREAIRTY

ATTORNEY - RETAINED ENTERED ON 08/03/2004

Plaintiff's Attorney: MIKLOS M PONGRATZ

Party(s): PAULA MCBREAIRTY

MOTION - MOTION TO WAIVE ADR FILED ON o8/o39/2004

OF PLAINTIFF PAULA MCBREAIRTY WITH PROPOSED ORDER. DB

ASSIGNMENT - SINGLE JUDGE/JUSTICE ASSIGNED TO JUSTICE ON 08/04/2004

THOMAS E HUMPHREY , JUSTICE

Party(s): PAULA MCBREAIRTY

DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 08/10/2004

PLAINTIFFS INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS PROPOUNDED UPON

DEFENDANT SERVED ON TRACY HILL, ESQ ON 8-9-04.

Party(s): PAULA MCBREAIRTY

MOTION - CTHER MOTION FILED ON 08/09/2004

OF PLAINTIFF'S MOTION FOR ADR EXEMPTION. AD CERTIFICATE OF

SERVICE OF MIKLOS PONGRATZ, ESQ.

Party{s}: PAULA MCBREAIRTY

MOTION - OTHER MOTION GRANTED ON 08/13/2004

THOMAS E HUMPHREY , JUSTICE

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04/19/2005

04/19/2005

04/19/2005

PORSC-CV- 2004-00488

DOCKET RECORD

OF PLAINTIFF'S MOTION FOR ADR EXEMPTION. AD CERTIFICATE OF

SERVICE OF MIKLOS PONGRATZ, ESQ. MOTION GRANTED. COUNSEL HAS

INDICATED TO THE CLERK THAT DEFENDANT DOES NOT OBJECT TO THIS MOTION. ON 06-16-04 COPIES

MAILED TO MIKLOS PONGRATZ, ESQ. AND TRACY HILL, ESQ. AD

ORDER - SCHEDULING ORDER ENTERED ON 08/16/2004

THOMAS E HUMPHREY , JUSTICE

DISCOVERY DEADLINE IS APRIL 18, 2005. ON 08-16-04 COPIES MAILED TO TRACY HILL, ESQ. AND

MIKLOS PONGRATZ, ESQ.

DISCOVERY FILING - DISCOVERY DEADLINE ENTERED ON 04/18/2005

Party(s): JORDANS STORE INC.

DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 09/03/2004

DEFENDANT'S OBJECTIONS TO PLAINTIFF'S INTERROGATORIES AND REQUEST FOR PRODUCTION OF

DOCUMENTS SERVED ON MIKLOS M. PONGRATZ ESQ. ON 9-2-04 (GA}

Party({s}: JORDANS STORE INC.

DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 09/13/2004

OF DEFENDANT'S ANSWERS TO INTERROGATORIES AND DEFENDANT'S RESPONSES TO REQUEST FOR

PRODUCTION GF DOCUMENTS SERVED ON MIKLOS M. PONGRATZ, ESQ. ON SEPTEMBER 10, 2004. AD

Party(s): JORDANS STORE INC.

JURY FILING - DEMAND FOR JURY TRIAL FILED ON 03/13/2004

JURY FEE PAID.

Party(s): JORDANS STORE INC.

DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICH FILED ON 09/28/2004

NOTICE TO TAKE ORAL DEPOSITION OF PLAINTIFF SERVED ON MIKLOS M. PONGRATZ, ESQ. ON 9/27/04.

LJ

Party(s): PAULA MCBREAIRTY

MOTION - MOTION TO WAIVE ADR GRANTED ON 08/13/2004

THOMAS E HUMPHREY , JUSTICE

ON 8-13-04 COPIES MAILED TO ATTORNEYS.

ORDER - FINAL PRETRIAL ORDER ENTERED ON 04/07/2005

THOMAS E DELAHANTY It, JUSTICE

RULE 16{B} PRETRIAL ORDER ENTERED. ON 04-07-05 COPIES MAILED TO TRACY HILL AND MIKLOS

PONGRATZ, ESQS. AD

Party(s)}: JORDANS STORE INC.

MOTION - MOTION SUMMARY JUDGMENT FILED ON 04/19/2005

OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WITH INCORPORATED MEMORANDUM OF LAW;

DEFENDANT'S STATEMENT OF MATERIAL FACTS WITH EXHIBITS A THRU E; REQUEST FOR HEARING. aD

Party(s): JORDANS STORE INC.

OTHER FILING - WITNESS LIST FILED ON 04/19/2005

OF DEFENDANT, JORDAN'S STORE, INC. AD

Party(s): JORDANS STORE INC.

OTHER FILING - EXHIBIT LIST FILED ON 04/19/2005

OF DEFENDANT, JORDAN'S STORE, INC. AD

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05/05/2005

06/10/2005

06/10/2005

PORSC-CV-2004-00488

DOCKET RECORD

Party(s): JORDANS STORE INC,

MOTION - MOTION TO CONTINUE FILED ON 04/22/2005

OF DEFENDANT, JORDAN'S STORE, INC, ASSENTED-TO MOTION TO CONTINUF. aD

Party(s): PAULA MCBREAIRTY

OTHER FILING - OPPOSING MEMORANDUM FILED ON 04/22/2005

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WITH INCORPORATED

MEMORANDUM OF LAW; STATEMENT OF MATERIAL FACTS WITH EXHIBITS A AND B; PROPOSED ORDER. AD

Party(s): PAULA MCBREAIRTY

OTHER FILING - WITNESS LIST FILED ON 64/22/2005

OF PLAINTIFF'S.

Party(s): PAULA MCBREAIRTY

OTHER FILING - EXHIBIT LIST FILED ON 04/22/2005

OF PLAINTIFF'S. AD

Party(s}: JORDANS STORE INC.

JURY FILING ~ PROPOSED JURY INSTRUCTIONS FILED ON 04/25/2005

OF DEFENDANT'S REQUESTED JURY INSTURCTIONS. AD

Party(s): JORDANS STORE inc.

JURY FILING - PROPOSED VOIR DIRE FILED ON 04/25/2005

OF DEFENDANT'S VOIR DIRE REQUESTS. AD

Party(s): JORDANS STORE INC.

JURY FILING - PROPOSED SPECIAL VERDICT FORM FILED ON 04/05/2005

OF DEFENDANT'S JURY SPECIAL VERDICT FORM. AD

Party(s): JORDANS STORE INC.

OTHER FILING - REPLY MEMORANDUM FILED ON 04/28/2005

OF DEFENDANT'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; DEFENDANT'S REPLY

STATEMENT OF MATERIAL FACTS WITH EXHIBITS A, A-1, B, C, D. apd

Party(s}: JORDANS STORE INC.

MOTION - MOTION TO CONTINUE GRANTED ON 05/03/2005

THOMAS E DELAHANTY IL, JUSTICE

IT IS HEREBY ORDERED THAT THE DEFENDANT'S MOTION IS GRANTED, THIS CASE SHALL BE REMOVED

PROM THE CURRENT TRIAL LIST THAT RUNS FROM MAY 9, 2005 THROUGH JUNE 17, 2005, AND THE

TRIAL MANAGEMENT CONFERENCE CURRENTLY SCHEDULED FOR MAY 3, 2005 SHALL ALSO BE CONTINUED.

TO BE RESCHEDULED ON SEPT/OCT TRIAL LIST. AT THE DIRECTION OF THE COURT, THIS ORDER SHALL

BE INCORPORATED INTO THE DOCKET BY REFERENCE. RULE 79(A). ON 05-05-05 COPIES MAILED To

TRACY HILL, ESQ. AN DMIKLOS PONGRATZ, ESO. AD

Party(s): PAULA MCBREAIRTY

MOTION - MOTION TO CONTINUE FILED ON 06/07/2005

OF PLAINTIFF, PAULA MCBREAIRTY. AD

Party(s): PAULA MCBREAIRTY

MOTION - MOTION TO CONTINUE OTHER DECISION ON 06/10/2005

PER JUSTICE DELAHANTY ORALLY TO BE RESET FOR JUNE 22, 2004 AT 11:00 A.M.

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06/23/2005

06/23/2005

A TRUE COPY

ATTEST:

HEARING - MOTION SUMMARY JUDGMENT HELD ON 06/22/2605

THOMAS E DELAHANTY II, JUSTICE

Defendant's Attorney: TRACY HILL

Plaintiff's Attorney: MIKLOS M PONGRATZ

HEARING HELD ON DEFENDANT, JORDANS STORE INC. MOTION FOR SUMMARY JUDGMENT.

MATTER UNDER ADVISEMENT. NO RECORD MADE.

Party(s): JORDANS STORE INC.

MOTION - MOTION SUMMARY JUDGMENT UNDER ADVISEMENT ON 66/22/2005

THOMAS E DELAHANTY IT, JUSTICE

Defendant's Attorney: TRACY HILL

Plaintiff's Attorney: MIKLOS M PONGRATZ

Party(s): JORDANS STORE INC.

MOTION - MOTION SUMMARY JUDGMENT GRANTED ON 06/23/2005

THOMAS E DELAHANTY II, JUSTICE

PORSC=-CV-2004-00498

‘DOCKET RECORD

COURT TAKES

THE CLERK WILL MAKE THE FOLLOWING ENTRY AS THE DECISION AND ORDER OF THE COURT: 1.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IS GRANTED. 2. JUDGMENT FOR DEFENDANT WITHOUT

COSTS. SQ ORDERED. ON 06-23-05 COPIES MAILED TO MIKLOS PONGRATZ ESQ. AND TRACY HILL, ESQ. ;

MS. DEBORAH FIRESTONE, THE DONALD GARBRECHT LAW LIBRARY, GOSS MIMEOGRAPH AND LOISLAW.COM,

INC. AD

FINDING - JUDGMENT DETERMINATION ENTERED ON 06/23/2005

THOMAS E DELAHANTY II, JUSTICE

THE CLERK WILL MAKE THE FOLLOWING ENTRY AS THE DECISION AND ORDER OF TH ECOURT: 1.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IS GRANTED. 3. JUDGMENT FO R DEFENDANT WITHOUT

COSTS. SO ORDERED. ON 06-23-05 COPIES MAILED TO MIKLOS PONGRATZ, ESQ., TRACY HILL, ESQ.,

LOISLAW.COM, GOSS MIMECGRAPH, THE DONALD GARBRECHT LAW AND MS. DEBORAH FIRESTONE. AD

ORDER - SUMMARY JUDGMENT ENTERED ON 06/23/2005

THOMAS E DELAHANTY II, JUSTICE

THE CLERK WILL MAKE THE FOLLOWING ENTRY AS THE DECISION AND ORDER OF TH ECOURT: 1.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IS GRANTED. 3. JUDGMENT FO R DEFENDANT WITHOUT

COSTS. SO ORDERED. ON 06-23-05 COPIES MAILED TO MIKLOS PONGRATZ, ESQ., TRACY HILL, ESQ.,

LOISLAW.COM, GOSS MIMECGRAPH, THE DONALD GARBRECHT LAW AND MS. DEBORAH FIRESTONE. AD

Judgment entered for JORDANS STORE INC. and against PAULA MCBREAIRTY.

FINDING - FINAL JUDGMENT CASE CLOSED ON 06/23/2005

A True Copy J og

A hi of é

Attest: ~/atty Lf

eh ierk oF USUrS

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