# McBreairty v. Jordan's Store, Inc. > Superior Court of Maine · June 23, 2005 URL: https://www.frixlaw.com/law-library/cases/10808369 ## Case - **Court:** Superior Court of Maine - **Decided:** June 23, 2005 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Thomas E. Delahanty II - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10808369 ## Opinion text 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 Page 1 of 4 Printed on: 06/23/2005 08/16/2004 06/16/2004 09/03/2004 09/13/2004 09/14/2004 09/28/2004 10/22/2004 04/14/2005 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 Page 2 of 4 Printed on: 06/23/2005 04/22/2005 04/22/2005 04/22/2005 04/22/2005 04/25/2005 04/25/2005 04/25/2005 04/28/2005 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. Page 3 of 4 Printed on: 06/23/2005 06/22/2005 06/22/2005 06/23/2005 06/23/2005 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 Page 4 of 4 Printed on: 06/23/2005 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10808369. Public record. Not legal advice.