Hakanson v. Royal Crest Condominium Association

STATE OF MAINE SUPERIOR COURT

YORK, ss. Civil Action

Docket No. CV-16-0229

TERI NAVARRO HAKANSON,

Plaintiff,

v.

ORDER ON MOTION FOR

ROYAL CREST CONDOMINIUM SUMMARY JUDGMENT

ASSOCIATION,

and

FORESIDE REAL ESTATE

MANAGEMENT, INC.,

Defendants.

Defendant Foreside Real Estate Management, Inc. has moved for summary

judgment based on its contention that it owed no legal duty to plaintiff. For the reasons

set out below, the motion is denied.

Summary Judgment Factual Recordt

On November 3, 2013 Teri Navarro Hakanson slipped, fell, and fractured her foot

on the steps leading into her residence, a condominium unit in the building ovmed by

Royal Crest Condominium Association (the "Association") located at 2 Ryefield Drive,

Old Orchard Beach, Maine (the "Premises"). (Pl.'s S.M.F. ~ 1-3.) She alleges that she

1 Several months after filing its reply brief, Foreside filed a motion for pennission to submit a

supplemental statement of material facts. Plaintiff filed a timely opposition. The facts set forth

in the supplemental statement are based upon depositions of two Association board members,

Christine Adams and Brad Woodward. These facts were known prior to the initial filing of

Foreside's motion for summary judgment. The motion for permission to submit a supplemental

statement of material facts is denied. Rule 56 does not contemplate such a filing. See M.R. Civ.

P. 56. Similar requests in other cases have been denied. O'Gara v. Horizon LLC, NO. CV-15-250,

2016 Me. Super. LEXIS 134, n. 1. (July 26, 2016); Barclays Capital Real Estate v. Hamilton, NO.

RE-08-038, 2008 Me. Supe1·. LEXIS 162, n. l (May 23, 2008). Even if considered, there slill

would remain disputed material facts that would prevent summary judgment.

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slipped on a 1/,i inch layer of pine needles that had accumulated on the steps. (Pl.'s

S.M.F. ,r 2.) Such pine needle accumulations occurred in the fall of every year, usually

for about a month. (Pl. 's S.M.F. ,i 28.)

In September 2012 the Association entered into an agreement with Foreside Real

Estate Management, Inc. ("Foreside") in which Foreside agreed to assume the

management responsibilities of the Premises (the "Agreement"). (Pl. 's S.M.F. 1 5; Def. 's

S.M.F. ,r 5.) Foreside's President ,Jeff Martin drafted the Agreement. (Pl.'s S.M.F. ,r 6.)

Under the terms of the Agreement, Foreside was "to furnish its best skill and judgment

... and to perform its administrative, financial, and management responsibilities in the

best manner consistent with effective management techniques and in [a] manner

consistent with the best interests of the Unit Owners' Association." (Pl.'s S.M.F. ,i 8.)

Although the Agreement expressly provided for a one-year term starting on November

1, 2012, Foreside continued to perform under the Agreement after the one-year period

expired and throughout 2013, including the date when plaintiff fell. (Pl.'s S.M.F. ,r 7;

Def.'s S.M.F. n 6, 8.)

Foreside was responsible under the Agreement for managing and collecting

assessments and other charges, preparing and executing the Association's budget,

paying the Association's bills, maintaining the Association's records, executing

contracts on the Association's behalf, soliciting vendors, and hiring and firing personnel

"required to maintain and operate the Association properly," among other administrative

tasks. (Pl.'s S.M.F. 11 11-14.)

Foreside was also responsible for "caus[ing] the property to be maintained and

repaired in accordance with state statutes and local ordinances, in a condition at all

times acceptable to the Board, including but not limited to such work as cleaning ...

grounds care, and such other maintenance and repair work as may be necessary." (Pl.'s

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S .M.F. ~ 16 .) Foreside agreed to pay "special attention ... to preventative maintenance."

(Pl.'s S.M.F. ~ 17.) The Agreement also provided that Foreside was to facilitate "regular

building/ amenity/ grmmds inspections." (Pl. 's S.M.F. ,i 18.) Additionally, the

Association's 30(b)(6) deponent, Linda Morehouse, testified that Foreside was

responsible for conducting maintenance on the Premises and that the Association

retained no such responsibility. (Pl.'s S.M.F. ,i,i 15, 19.) Morehouse also testified that

the Premises was not "at all times" kept in a condition that was acceptable to the Board

if needles were permitted to accumulate on the front steps. (Pl.'s S.M.F. ,i 31.) She also

expressed that this problem would be "of grave concern" to the Association's Board. (Pl. 's

S.M.F. ,r 32.)

In addition, Foreside was responsible for receiving and responding to owner

complaints about hazards on the Premises. (Pl.'s S.M.F. ,r 24.) To this end, Foreside's

contact information was posted in the building's lobby. (Pl.'s S.M.F. ,r 24.) As required

by the Agreement, Foreside was active in the meetings of the Association's Board of

Directors and participated in decisions concerning subcontractors, grounds

maintenance, trash pick-up, cleaning, and finances . (Pl.'s S.M.F. ,r 23.) In exchange for

the services provided, the Association paid Foreside a per unit management fee . (PL 's

S.M.F. ,r 26 .)

In March of 2013, Foreside executed a Grounds Maintenance contract with

Seabreeze Property Services, Inc. on behalf of Royal Crest for cleanup work on the

Premises. (Def. 's S.M.F. ,r 9.) The contract included a requirement for a "Fall Cleanup"

to be "completed in November" that included "removal of leaves from established lawn

areas, shrub beds and hard surfaces" and a "Spring Cleanup" that included "[s]weep[ingJ

entrances, exits, roadways, walkways and parking areas for removal of winter sands."

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(Def. S.M.F. 1 9, at Ex. 2 to Aff. of Jeff Ma1tin.J Seabreeze Property Services is not a

party to this action.

Plaintiff contends that Foreside was not conducting regular grounds inspections

at the time of her fall because Foreside was having trouble collecting payment from the

Associations for "little things." (Pl.'s S.M.F. 1 30.) Foresicle claims that it did not engage

in any grounds maintenance for the Premises, including sweeping or removal of leaves

or pine needles. (DeJ.'s S.M.F. 1 10.)

On September 16, 2016, plaintiff brought the instant action asserting negligence

claims against the Association (counts I - N) and Foreside (count VJ. Defendant

Foreside moved for summary judgment, arguing that it owed no duty to the plaintiff.

Summary Judgment Standard

Summary judgment is appropriate if, based on the parties' statements of material

fact and the cited record, there is no genuine issue of material fact and the moving party

is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); Dyer v. Dep't of Transp.,

2008 ME 106, 1 14, 951 A.2d 821. "A material fact is one that can affect the outcome

of the case. A genuine issue of material fact exists when the fact finder must choose

between competing versions of the truth." Dyer, 2008 ME 106, ,i 14, 951 A.2d

821 (internal citation and quotation marks omitted).

To survive a summary judgment motion, a plaintiff must set forth a prirna facie

case for each element of the operative cause of action. Bonin v. Crepeau, 2005 ME 59, 1

8, 873 A.2d 346; Burdzel v. Sobus, 2000 ME 84, ,i 9, 750 A.2cl 573. Plaintiff must,

therefore, make aprimafacie showing as to each element of her negligence claim: duty,

breach, causation, and damages. The court reviews the record submitted in the light

most favorable to plaintiff, who is the non-moving party. Id.

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Discussion

Foreside's motion for summary judgment is based on its contention that plaintiff

has failed to establish a prima facie case of negligence because, as a matter of law, it

had no duty to her. First, Foreside asserts that it owed no duty to plaintiff under Maine

premises liability law because it did not possess the Premises. Second, Foreside

contends it owed no duty under general principles of common law negligence because

its conduct did not create the condition that caused plaintiff to fall and injure herself,

namely the natural accumulation of pine needles. Finally, Foreside argues that it owed

no duty to plaintiff based on its contract with the Association.

1. Possession

Whether a party owes a duty of care in tort, and the scope of any duty owed, are

questions of law to be determined by the court. Brown v. Delta Tau Delta, 2015 ME 75,

ir,J 9, 14, 118 A.3d 789; Davis v. R. C. & Sons Paving, Inc., 2011 ME 88, 1 11, 26 A.3d

787.; Trnsiani v. Cumberland & Yor/c Distri.bs., Inc., 538 A.2d 258, 261 (Me. 1988).

However, the "inquiry as to the existence of a duty is fact-intensive;" and requires

analysis of "facts relevant to foreseeability, control, and the relationship of the parties."

Brown, 2015 ME 75, ii 14, 118 A.3d 789.

In the context of premises liability ca ses, the existence of a duty generally turns

on the question of possession. Denman v. Peoples Heritage Ban/c, 1998 ME 12, 1 4, 704

A.2d 411 (citations omitted). "Possession" does not require actual title or ownership. Id.

A possessor may simply be "one who, by occupancy, manifests an intent to control the

land." Id., quoting Quadrina v. Bar Harbor Banking & Trust, 588 A.2d 303, 305 (Me.

1991) (internal quotation marks omitted); see also Restatement (Second) of Torts § 328E

(1979). Whether one manifests an intention to control the land is an issue of fact. Id.,

citing Hanlcard v. Beal, 543 A.2d 1376 (Me. 1988).

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There are genuine issues of material facts with respect to the scope of Foreside's

responsibilities, undertaking, and control with regard to the Premises. The record sets

forth that Foreside was the only entity responsible for maintaining the Premises; was

responsible for keeping "the property ... in a condition at all times acceptable to the

Board, including but not limited to such work as cleaning ... grounds care, and such i

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other maintenance and repair work as may be necessary; had agreed to give "special

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I

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attention . . . to preventative maintenance work;" had agreed to facilitate regular

inspection; and had been delegated all maintenance responsibilities. (Pl.'s S.M.F. ~1

15-19.) Foreside disputes these facts, in whole or part. (Def.'s S.M.F. n 15- 19.) The

fact that Foreside subcontracted out some of the maintenance responsibilities does not

necessarily negate its responsibilities to oversee, inspect and assure proper

maintenance of the Premises, or at least creates a disputed issue factual issue with

respect thereto.

In addition, a non-possessor of land may be liable for injuries resulting from its

actions in certain circumstances. In Colvin v. A. R. Cable Services-Me, l 997 ME 163,

697 A.2cl 1289, the Law Court rejected a subcontract's defense that it had no duty, and

therefore no liability, for injuries arising from a dangerous condition it had created,

merely because it was not in possession of the premises. The Court noted: "[N]egligence

is gauged by the ability to anticipate. The common-law test of duty is the probability or

foreseeability of injmy to the plaintiff." Id., ~ 7 (citation omitted). The "reasonable

foreseeability of injury to others from one's acts or from one's failure to act raises a duty

in law to proceed in the exercise of reasonable care. It is not necessary that the precise

type of injury be foreseen nor the specific person injured," even if one does not possess

the property on which the injury occurs. Quinn v. Moore, 292 A.2d 846, 850 (Me. 1972).

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This principle finds support in section 387 of the Second Restatement of Torts,

which provides:

An independent contractor or servant to whom the owner or possessor of

land turns over the entire charge of the land is subject to the same liability

for harm caused to others, upon or outside of the land, by his failure to

exercise reasonable care to maintain the land in safe repair as though he

were the possessor of the land.

Restatement (Second) of Torts § 387 (1979). The comment to this section further

explains:

In order to create liability under the rule stated in this Section it is not

necessary that the contractor be given the possession or occupation of the

land or building. On the other hand, the contractor must have talcen over

the entire charge of the land or building. It is not enough to create liability

under the rule stated in this Section that he has undertaken to make

specific repairs, or even to inspect the land or building and from time to

time make such repairs as he should discover to be necessary.

Thus a painter employed to paint a room is not given entire charge of the

house, even though the owner may vacate it while the work is being done,

while one to whom the premises are turned over, even gratuitously, to

occupy for two days for a rummage sale has entire charge.

Id. cmt. a (emphasis added). The accompanying illustration 1s also particularly

comparable to this case:

A contracts with the B Realty Company to take charge of his office building,

the Company to rent the offices, collect the rents, and see to the repairs,

paying over to A from time to time the amount of the rents after deducting

the cost of repairs and its expenses and commissions. The B Company

fails to exercise reasonable care to keep the building in repair. In

consequence the ceiling of one of the offices falls upon C, the tenant, and

D, a friend of the tenant paying a social call upon the tenant's invitation.

For the same reason a part of the cornice falls upon E, a traveler upon the

highway upon which the building abuts. The B Company is subject to

liability to C, D, and E.

Id.

Although the Law Court has not adopted section 387, its decision in Campbell v.

Sugar Co., 62 Me. 552 (1873) reflects the same principle. In Campbell, an individual

was injured on wharf owned by the Portland Sugar Company, which was leased and

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occupied by merchants and managed by another entity, who collected the rents and

kepl the premises in good repair. Id. at 566. Although the manager did not maintain a

physical presence on the premises, similarly to Foreside here, the Law Court held, "It is

the actual personal negligence of the agents which constitutes the constructive

negligence of the corporation. The corporation acts through and by them, and they act

for the corporation, and when their acts or neglects result in injmy to third parties, they

are equally responsible with their principals." Id.

Foreside contracted with the Association to keep the Premises in a suitable

condition acceptable to the Board. The Association "act[ed] through and by" Foreside.

At the very least, Foreside's actions and undertakings pursuant to and after the

expiration of the one-year Agreement raises a question of fact as to whether Foreside

intended to exercise sufficient control over the Premises as to give rise to a duty to the

condominium residents, including plaintiff.

Foreside relies upon several "winter weather" cases to support the position that

its responsibilities under the Agreement cannot provide a source of duty to plaintiff.

See Denman v. Peoples Heritage Bank, 1998 ME 12, 704 A.2d 411; Alexander v. Mitchell,

2007 ME 108, 930 A.2d 1016.2 Denman and Alexander involved public property-a

public sidewalk and a public street, respectively. The contractors hired to clear these

2

Jn Denman, a pedestrian was injured in a fall on a public sidewalk. Neither the owner of the

abutting land nor the contractor hired to clear the sidewalk had sufficient possession or control

to support a legal duty to the pedestrian because a city ordinance required the sidewalk to be

clear; and "there was no evidence to support a finding that defendants intended to control the

public sidewalk. To the contrary, defendants' actions were involuntary and undertaken in

compliance with applicable law." Denman, 1998 ME 12, ,r,r 5-6, 704 A.2d 411. Thus, "any failure

to remove snow and ice in violation of an ordinance does not create a cause of action in favor of

pedestrians injured thereby." Id. ~ 6, citing Ouelette v. Miller, 134 Me. 162, 183 A. 341 (1936).

This rule was affirmed in Alexander v. Mitchell, 2007 ME 108, ,r 30 n.13, 930 A.2d 1016,

("[Defendant] did not intend to control the road and instead acted to satisfy the Town's legal

obligations pursuant to [statute]. Although [defendantl may have voluntarily signed the

contract, the Town's underlying obligation was mandatory, not voluntary. These legal obligations

did not generate a common law duty running from [defendant] to [plaintiff].") (citations omitted).

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areas did not have the requisite intent to control or possess the areas in question.

Moreover, they were acting pursuant to an agreement or other obligation based upon

town ordinance or state statute. The instant case presents a different situation. Here,

Foreside had assumed, undertaken, and acted to discharge responsibility to inspect and

maintain the entire Premises, which was private property, for the property owner; and

this included "grounds care" and other "preventative maintenance". Questions of

material fact remain as to whether Foreside intended to and/ or assumed control over

the property by virtue of its Agreement with the Association; and if so, to what extent.

2. Natural Conditions

Foreside next argues that even if there is a question of material fact concerning

its possession or control of the Premises, it cannot be held liable for injuries caused by

the accumulation of pine needles, a naturally occurring condition. Ouelette v. Miller,

134 Me. 162, 164-65, 183 A. 341, 342 (1936) ("At common law private individuals are

not liable for injuries to others occasioned by natural causes.") See also Davis, 2011 ME

88, ,r,r 21 -22, 26 A.3d 787 (weather, not contractor, created hazardous condition);

Alexander, 2007 ME 108, ,r,r 18-19, 930 A.2d 1016 (snowplow operator did not create

dangerous condition; rather, caused by natural accumulation of snow and ice).

Maine law has imposed a duty upon property owners or possessors in situations

where they did not "use ordinary care to ensure that the premises are reasonably safe

for invitees" due to hazardous conditions created by nature. Isaacson v. Husson Coll.,

297 A.2d 98, 103 (Me. 1972) ("mere fact that snow and ice conditions are prevalent

during the course of our severe Maine winters is not in and of itself sufficient rationale

for the insulation of the possessor of land from liability to his business invitees"). See

also Budzko v. One City Ctr. Assocs., 2001 ME 37, ,r 16 767 A.2d 310 ("Business owners

have a duty to reasonably respond to foreseeable dangers and keep premises re:rnonably

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safe when significant numbers of invitees may be anticipated to enter or leave the

premises during a winter storm."); Davis, 2011 ME 88, if~ 23-25, 26 A.3d 787 (Silver,

J., dissenting) ("It makes no sense to remove any legal duty at precisely the moment a

snow and ice removal business begins to respond to the triggering storm3 , simply

because the business had no hand in causing the storm."); Restatement (Second) of

Torts § 343 (1979) (possessor who fails to exercise reasonable care may be liable to

invitees for harm caused by condition of land if it is known or should have been known);

Brewer v. Roosevelt Motor Lodge, 295 A.2d 647, 651 (Me. 1972)( "The common-law test

of duty is the probability or foreseeability of injury to the plaintiff.")

These cases are consistent with the general notion referenced above that a duty

arises out of the "reasonable foreseeability of injury to others" in a situation where a

defendant has undertaken or assumed responsibility-here initially at least by virtue of

a contract with the property owner-to oversee, inspect and maintain the property.

Because there are material facts in dispute as to the extent or scope of Foreside's

responsibilities as well as its knowledge of the hazardous condition, its motion for

summary judgment is denied.

3. Third-Party Beneficiary

Foreside argues further that plaintiff was not a third-party beneficiary of the

Agreement as to give Foreside a duty to her. Plaintiff does not address this issue in her

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Justice Silver in Davis also cited to section 324A of the Second Restatement of Torts, which

provides:

One who undertakes, gratuitously or for consideration, to render services to

another which he should recognize as necessary for the protection of a third

person or his things, is subject to liability to the third person for physical harm

resulting from his failure to exercise reasonable care to protect his undertaking,

if

(a) his failure to exercise reasonable care increases the lisk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the thlrd person upon

the undertaking.

Restatement (Second) ofTorts § 324A (1979).

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opposition, thus it is waived for purposes of this motion. See Mehlhom v. Derby, 2006

ME 110, , 11, 905 A.2d 290 (citations omitted). Because there is still a question of

material fact concerning Foreside's duty to plaintiff as discussed above, the motion for

summary judgment will be denied and thus it is unnecessary to address this issue.

Conclusion and Order

Plaintiff has made a prima facie showing with regard to her negligence claim,

including the element of Foreside's duty of care, as there remain in dispute material

facts relevant to that issue.

Accordingly, it is hereby ordered that Foreside's motion for summary judgment

is denied; the clerk shall schedule this matter for a trial management conference at the

start of the July/ August 2018 trial list; and the entry shall be: "Defendant Foreside Real

Estate Management, Inc.'s motion for surrunary judgment denied."

The clerk may incorporate this Order on Motion for Summary Judgment on the

docket by reference pursuant to M.R. Civ. P. 79(a).

SO ORDERED.

DATED: May 1, 2018

~NTERED ON THE DOCKET ON: ~

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