The opinion
EN If RED DEC o 9 7014
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. CV-13-198
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RACHEL BROWN and
DESTINY PHANEUF,
Plaintiffs
v. ORDERS ON PENDING MOTIONS
NEW HAMPSHIRE NORTHCOAST
CORPORATION,
Defendant
The plaintiffs, who were fourteen and thirteen years old respectively on the
morning of May 28, 2008, skipped school and in order to avoid detection by their
parents, decided to lie down on the railroad tracks near the Three Mile Pond trestle in
Lebanon. A train owned and operated by the defendant ran over them. They
survived the incident, but both suffered permanent injuries. They filed a negligence
complaint on August 28, 2013 using language based on the duty of care owed to
trespassers. The defendant answered denying liability.
On November 19, 2013 the court issued a standard scheduling order setting a
July 19,2014 discovery deadline.
On April 18, 2014 the defendant filed a motion for summary judgment, which
argued that the plaintiffs were trespassers, that there is a lesser duty of care toward
trespassers, and that there was no evidence of the willful, wanton or reckless
misconduct that is required to impose liability. The defendant also submitted a letter
to the Clerk asking that a discovery conference be held to discuss its request that further
discovery be stayed until the motion for summary judgment was decided.
After a lengthy conference with counsel I issued an order on May 22, 2014, which
granted the defendant's request to stay discovery and set a deadline ofJune 20, 2014 for
the plaintiffs to respond to the summary judgment motion including any request under
Rule 56(£), M.R. Civ.P. to delay a response pending further discovery.
The plaintiffs have filed a motion to reconsider the order granting a stay of
discovery and a motion pursuant to Rule 56(£). Those motions have been briefed and
argued.
My view as to the legal principles remains unchanged. The plaintiffs were
trespassers and their claims must be treated under the well-established Maine law
related to trespassers. Foster v. LaPlante, 244 A.2d 803(Me. 1968) did not involve a
claim by a trespasser.
My view as to the wisdom of further discovery remains unchanged. Much
discovery has been provided and it is unlikely, but possible, that sufficient new facts
will be found that will change the likely outcome of the case. My view as to the
opportunity to conduct further discovery has changed. The two key railroad
employees have not been deposed and the plaintiffs' expert or experts have apparently
not viewed the scene. I have on occasion, in the judgment of the Law Court, dismissed
or granted summary judgment prematurely. It seems wiser, though there is both a
financial and psychological cost in doing so, to permit further discovery.
The remaining discovery should focus on depositions and the entry onto and
inspection of land, rather than less productive disputes concerning the adequacy of
responses to request for admissions.
2
The entries are:
Plaintiffs' motion to reconsider order granting defendant's motion to stay
discovery is granted. The order of May 22, 2014 granting a stay is
vacated.
Plaintiffs' rule 56(£) motion is granted. The time to respond to
defendant's motion for summary judgment is extended through April30,.
2015.
A ruling on the defendant's motion for summary judgment is deferred.
· The discovery deadline is extended through March 31, 2015.
Dated: December 8, 2014
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Paul A. Fritzsche
Justice, Superior Court
3
CV-13-198
ATTORNEY FOR PLAINTIFFS:
GARY GOLDBERG
TERRY GARMEY & ASSOCIATES LLC
482 CONGRESS STREET SUITE 402
PORTLAND ME 04101
ATTORNEY FOR DEFENDANT:
MARTICA DOUGLAS
DOUGLAS DENHAM BUCCINA & ERNST
PO BOX 7108
PORTLAND ME 04112-7108