STATE OF MAINE SUPERIOR COURT CUMBERLAND, SS. CIVIL ACTION DOCKET NO. CV-14-185
ALICE ALBEE, ) ) Plaintiff ) STATE OF MA\ME ) Cumtwa!'f~"A ~ ~IAN~ {)flee-- v. ) ) OCT .212015 JOHN TROTT, JR., et al., )
Defendants ) ) RECEIVED ORDER ON GINN PORTLAND, LLC'S MOTION FOR SUMMARY JUDGMENT
Defendant Ginn Portland, LLC's ("Ginn") has moved for summary judgment on
Plaintiff Alice Albee's negligence claim against Ginn as the owner of the commercial property
where she sustained the injuries for which she seeks damages in this action. Oral argument
was held on October 6, 2015.
Based on the entire record, Ginn's motion for summary judgment is granted.
I. Background
A. Undisputed Facts
For the purpose of summary judgment, the following facts in this case are not in dispute
as between the Plaintiff Alice Albee and Defendant Ginn:
On October 12, 2011, a vehicle operated by Defendant New Bern Transport
Corporation ("New Bern") and driven by Defendant John Trott, Jr. struck Plaintiff, resulting in
her injury. (Def.'s Supp. S.M.F. ~ 2.) The incident occurred on the paved parking area
adjacent to a 7-Eleven convenience store and gas station located at 704 Congress Street in
Portland, Maine. Id. ~~ 1, 8. New Bern, through its employee Trott, was delivering Pepsi
products to the 7-Eleven store at the time of Plaintiffs injury. Id. ~ 3. Ginn is the owner of
1 the property that encompasses the store and paved parking area where the accident happened.
Id. ~ 5.
Plaintiff filed a negligence complaint against Trott, New Bern, Pepsico, Inc., and Pepsi
Bottling Group, Inc. on April 16, 2014. (Compl. 1.) On June 11, 2104, Plaintiff amended her
complaint, dropping Pepsico, Inc. and Pepsi Bottling Group, Inc. from the lawsuit and adding
Ginn. (Am. Compl. 1). Plaintiff has not brought suit against the tenant who rents the
property from Ginn and operates the 7-Eleven convenience store.
On July 6, 2015, Ginn moved for summary judgment, claiming it is entitled to judgment
as a matter oflaw on Plaintiffs claim. Plaintiff Albee filed a timely opposition.
II. Analysis
A. Applicable Law
Plaintiff has brought a negligence claim against Ginn as the landlord of the property
whe~e her injury occurred. "To establish a prima facie case of negligence, a plaintiff must
establish that a duty was owed, the duty was breached, and the plaintiffs injuries or damages
were proximately caused by the breach of that duty." Radley v. Fish, 2004 ME 87, ~ 12, 856
A.2d 1196 (internal citation and quotation marks omitted). Whether a defendant owed the
plaintiff a duty of care is a legal question decided by the court. Brown v. Delta Tau Delta, 2015
ME 75, ~ 9, 118 A. 3d 789. The existence of a duty is fact specific, and the facts of a given case
determine whether a defendant owed a duty of care to the plaintiff. Id.
A possessor ofland owes persons lawfully on the property a duty to use reasonable care.
Hankard v. Beal, 543 A.2d 1376, 1378 (Me. 1988). When a tenant assumes exclusive possession
and control of a property, "the tenant becomes like the owner of the property for most
purposes." Stewart v. Aldrich, 2002 ME 16, ~ 14, 788 A.2d 603. Thus, a landlord is generally
not liable for injuries caused by a dangerous condition that came into being after a tenant takes exclusive possession and control of a property. Id. ~ 10. However, a landlord is deemed to
retain control over the common areas of a leased property and may be liable for injuries caused
by a dangerous condition in those areas. Chiu v. City of Portland, 2002 ME 8, ~ 11, 788 A.2d
183.
While the plaintiff generally must establish facts supporting a pnma facie case of
negligence, the absence of control is an essential element that the landlord must establish in
order to avoid liability. 1 Id. ~ 12. "Control" in this context means "power over the property
that the landlord reserves pursuant to the terms of the lease or the tenancy, whether express or
implied, and does not include the incidental control that comes from being able to threaten
tenants with nonrenewal of a lease or with eviction." Stewart, 2002 ME 16, ~ 13, 788 A.2d 603.
B. Standard of Review
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 oflaw. M.R. Civ. P. 56( c); Dyer v. Dep't ifTransp., 2008 ME 106, ~ 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, ~ 14, 951 A.2d 821 (internal citation and quotation marks omitted). When
deciding a motion for summary judgment, the court reviews the evidence in the light most
favorable to the non-moving party. Id.
There are also three exceptions under which landlord may still be held liable for a dangerous condition on property under the exclusive control of a tenant: (a) when the landlord fails to disclose the existence of a latent defect which the landlord knew or should have known existed, but is not known to the tenant nor discoverable with reasonable care; (b) when the landlord gratuitously makes negligent repairs to the property; or (c) when the landlord expressly agrees to maintain the property in good repair. Stewart, 2002 ME 16, ~ 10, 788 A.2d 603 (internal citation omitted). Generally, in order to avoid liability, a landlord must also show that none of the enumerated exceptions applies. Id. ~ 12. Plaintiff, in her opposition, does not contend that any of these enumerated exceptions applies in this case. As noted above, Ginn bears the burden of proving that, as landlord, it has not exercised
or retained control over the property and thus is not liable to Plaintiff. When the party moving
for summary judgment bears the burden of persuasion on a claim or defense, the moving party
must establish the existence of each element of the claim or defense without dispute as to any
material fact in the record in order to obtain summary judgment. Cach, LLC v. Kulas, 2011 ME
70, ~ 9, 21 A.3d 1015. When a motion for summary judgment is properly supported, the
burden shifts to the non-moving party to respond with specific facts indicating a genuine issue
for trial in order to avoid summary judgment. M.R. Civ. P. 56(e). The evidence offered by the
non-moving party to establish a dispute of material fact "need not be persuasive at that stage,
but the evidence must be sufficient to allow a fact-finder to make a factual determination
without speculating." Estate of Smith v. Cumberland County, 2013 ME 13, ~ 19, 60 A.3d 7 59.
C. Ginn's Motion for Summary Judgment
The threshold issue raised by Ginn's motion is whether Ginn has met its initial burden
to establish that it does not exercise or retain control over its property. Only if Ginn has met
its burden does the focus shift to whether Albee has effectively controverted Ginn's showing by
generating a genuine issue of material fact that precludes summary judgment.
In support of its motion for summary judgment, Ginn contends that, under the terms of
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE SUPERIOR COURT CUMBERLAND, SS. CIVIL ACTION DOCKET NO. CV-14-185
ALICE ALBEE, ) ) Plaintiff ) STATE OF MA\ME ) Cumtwa!'f~"A ~ ~IAN~ {)flee-- v. ) ) OCT .212015 JOHN TROTT, JR., et al., )
Defendants ) ) RECEIVED ORDER ON GINN PORTLAND, LLC'S MOTION FOR SUMMARY JUDGMENT
Defendant Ginn Portland, LLC's ("Ginn") has moved for summary judgment on
Plaintiff Alice Albee's negligence claim against Ginn as the owner of the commercial property
where she sustained the injuries for which she seeks damages in this action. Oral argument
was held on October 6, 2015.
Based on the entire record, Ginn's motion for summary judgment is granted.
I. Background
A. Undisputed Facts
For the purpose of summary judgment, the following facts in this case are not in dispute
as between the Plaintiff Alice Albee and Defendant Ginn:
On October 12, 2011, a vehicle operated by Defendant New Bern Transport
Corporation ("New Bern") and driven by Defendant John Trott, Jr. struck Plaintiff, resulting in
her injury. (Def.'s Supp. S.M.F. ~ 2.) The incident occurred on the paved parking area
adjacent to a 7-Eleven convenience store and gas station located at 704 Congress Street in
Portland, Maine. Id. ~~ 1, 8. New Bern, through its employee Trott, was delivering Pepsi
products to the 7-Eleven store at the time of Plaintiffs injury. Id. ~ 3. Ginn is the owner of
1 the property that encompasses the store and paved parking area where the accident happened.
Id. ~ 5.
Plaintiff filed a negligence complaint against Trott, New Bern, Pepsico, Inc., and Pepsi
Bottling Group, Inc. on April 16, 2014. (Compl. 1.) On June 11, 2104, Plaintiff amended her
complaint, dropping Pepsico, Inc. and Pepsi Bottling Group, Inc. from the lawsuit and adding
Ginn. (Am. Compl. 1). Plaintiff has not brought suit against the tenant who rents the
property from Ginn and operates the 7-Eleven convenience store.
On July 6, 2015, Ginn moved for summary judgment, claiming it is entitled to judgment
as a matter oflaw on Plaintiffs claim. Plaintiff Albee filed a timely opposition.
II. Analysis
A. Applicable Law
Plaintiff has brought a negligence claim against Ginn as the landlord of the property
whe~e her injury occurred. "To establish a prima facie case of negligence, a plaintiff must
establish that a duty was owed, the duty was breached, and the plaintiffs injuries or damages
were proximately caused by the breach of that duty." Radley v. Fish, 2004 ME 87, ~ 12, 856
A.2d 1196 (internal citation and quotation marks omitted). Whether a defendant owed the
plaintiff a duty of care is a legal question decided by the court. Brown v. Delta Tau Delta, 2015
ME 75, ~ 9, 118 A. 3d 789. The existence of a duty is fact specific, and the facts of a given case
determine whether a defendant owed a duty of care to the plaintiff. Id.
A possessor ofland owes persons lawfully on the property a duty to use reasonable care.
Hankard v. Beal, 543 A.2d 1376, 1378 (Me. 1988). When a tenant assumes exclusive possession
and control of a property, "the tenant becomes like the owner of the property for most
purposes." Stewart v. Aldrich, 2002 ME 16, ~ 14, 788 A.2d 603. Thus, a landlord is generally
not liable for injuries caused by a dangerous condition that came into being after a tenant takes exclusive possession and control of a property. Id. ~ 10. However, a landlord is deemed to
retain control over the common areas of a leased property and may be liable for injuries caused
by a dangerous condition in those areas. Chiu v. City of Portland, 2002 ME 8, ~ 11, 788 A.2d
183.
While the plaintiff generally must establish facts supporting a pnma facie case of
negligence, the absence of control is an essential element that the landlord must establish in
order to avoid liability. 1 Id. ~ 12. "Control" in this context means "power over the property
that the landlord reserves pursuant to the terms of the lease or the tenancy, whether express or
implied, and does not include the incidental control that comes from being able to threaten
tenants with nonrenewal of a lease or with eviction." Stewart, 2002 ME 16, ~ 13, 788 A.2d 603.
B. Standard of Review
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 oflaw. M.R. Civ. P. 56( c); Dyer v. Dep't ifTransp., 2008 ME 106, ~ 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, ~ 14, 951 A.2d 821 (internal citation and quotation marks omitted). When
deciding a motion for summary judgment, the court reviews the evidence in the light most
favorable to the non-moving party. Id.
There are also three exceptions under which landlord may still be held liable for a dangerous condition on property under the exclusive control of a tenant: (a) when the landlord fails to disclose the existence of a latent defect which the landlord knew or should have known existed, but is not known to the tenant nor discoverable with reasonable care; (b) when the landlord gratuitously makes negligent repairs to the property; or (c) when the landlord expressly agrees to maintain the property in good repair. Stewart, 2002 ME 16, ~ 10, 788 A.2d 603 (internal citation omitted). Generally, in order to avoid liability, a landlord must also show that none of the enumerated exceptions applies. Id. ~ 12. Plaintiff, in her opposition, does not contend that any of these enumerated exceptions applies in this case. As noted above, Ginn bears the burden of proving that, as landlord, it has not exercised
or retained control over the property and thus is not liable to Plaintiff. When the party moving
for summary judgment bears the burden of persuasion on a claim or defense, the moving party
must establish the existence of each element of the claim or defense without dispute as to any
material fact in the record in order to obtain summary judgment. Cach, LLC v. Kulas, 2011 ME
70, ~ 9, 21 A.3d 1015. When a motion for summary judgment is properly supported, the
burden shifts to the non-moving party to respond with specific facts indicating a genuine issue
for trial in order to avoid summary judgment. M.R. Civ. P. 56(e). The evidence offered by the
non-moving party to establish a dispute of material fact "need not be persuasive at that stage,
but the evidence must be sufficient to allow a fact-finder to make a factual determination
without speculating." Estate of Smith v. Cumberland County, 2013 ME 13, ~ 19, 60 A.3d 7 59.
C. Ginn's Motion for Summary Judgment
The threshold issue raised by Ginn's motion is whether Ginn has met its initial burden
to establish that it does not exercise or retain control over its property. Only if Ginn has met
its burden does the focus shift to whether Albee has effectively controverted Ginn's showing by
generating a genuine issue of material fact that precludes summary judgment.
In support of its motion for summary judgment, Ginn contends that, under the terms of
its lease with the tenant, 7-Eleven, Inc., Ginn does not control, possess, maintain, or monitor
the property. (Def's Supp. S.M.F. ~ ~ 9-12). Ginn further contends that it did not in fact
control, possess, maintain, or monitor the property on October 12, 2011, the date of Plaintiffs
injury. Id. ~~ 13-16. Ginn further contends that it exercised no control over the loading and
unloading of trucks on the property at any time on or before October 12, 2011. !d. ~ 18.
Ginn's position relies on two affidavits of Ellen Fontaine, a property manager for Ginn,
and the exhibits thereto, as well as deposition testimony of Ms. Fontaine. According to
4 Fontaine, Ginn does not in fact control, posses, monitor, or maintain the property, and that
Ginn has never exercised control over the loading or unloading of trucks on the property at or
before the time of Plaintiffs injury. Id. ~ ~ 10-14. Fontaine asserts that 7-Eleven, Inc. has
been in exclusive possession and control of the entire property since assuming the lease for the
property in 1998. Id. ~ 16.
Plaintiffs opposition to summary judgment contends that there are genuine issues of
fact as to the extent of Ginn's control. Plaintiff contends that Ginn failed to establish that the
lease agreement provided by Ginn was the actual agreement defining Ginn's relationship with
Ginn's tenant as of the date of her injury. (Pl.'s Opp. S.M.F. ~ ~ 4, 7, 10.) Plaintiff also
contends that, even if the lease presented by Ginn governs, the terms indicate that Ginn has
retained a sufficient degree of control over the property to support Plaintiffs premises liability
claim against Ginn. Id. ~ ~ 9, 11 IS, 16, 18-19. Plaintiff makes further arguments independent
ofthe Lease Agreement that are addressed below.
( 1) Whether the Lease Agreement Governs, and If So, Whether It Allocates to Ginn The Type or Degree of Control Necessary to Create Landlord Liability for Injury
Ginn contends that a document titled Lease Agreement and dated August 17, 1978
defines Ginn's landlord rights and responsibility regarding the ·property at 704 Congress St.
(Fontaine Aff. 6/29115 ~ .'3, Ex. A.) According to the Lease Agreement, the lessor of the
property in 1978 was Mark H. Ginn and the lessee was RMR, Inc. Id. Ex. A~ 1.
The Lease Agreement states that Mark H. Ginn leased to RMR, Inc. the property with
"the right to use all adjoining parking areas, driveways, sidewalks, roads, alleys, and means of
ingress and egress in so far as lessor has the power to lease." Id. Ex. A ~ 2. The Lease
Agreement further provides that, in addition to maintaining the building on the property in
good repair, the tenant is also responsible for maintaining "the surface of the parking area,
sidewalks, and driveways.'' Id. Ex. A ~ 9. There are no terms in the Lease Agreement under
5 which the landlord retains control over the property, the parking area, sidewalks, or driveways.
Id. Ex. A. Fontaine's affidavit asserts that 7-Eleven, Inc., the current tenant, assumed the
Lease Agreement in 1998. Id. ~ 5.
Plaintiff contends that without proof of an assignment, there is no evidence that the
Lease Agreement produced by Ginn is the actual lease agreement that was in effect on the date
of Plaintiffs injury and either (1) Ginn has failed to produce the actual lease agreement, or (2)
7-Eleven, Inc. was actually a tenant-at-will at the time of Plaintiffs injury.
In fact, Ginn has produced sufficient evidence to support its contention that the Lease
Agreement defines the landlord-tenant relationship regarding the property. The Fontaine
affidavits and her deposition testimony establish the following facts, none of which has been
controverted by Plaintiff:
The original tenant, RMR, Inc. assigned the Lease Agreement to Christy's Market, Inc. on December 15, 199S. ((Def.'s Supp. S.M.F. ~~ 4-5, 7; Fontaine Aff. 6/29/15 ~~ S-7; Fontaine Aff. 8/19/15 ~ s, Ex. B.) In May 1998, the Southland Corporation acquired Christy's Market, Inc. and was assigned the Lease Agreement. (Fontaine Aff. 8119115 ~ ~ 4-5, Ex. C.) The Southland Corporation became 7-Eleven, Inc. in 1999. (Fontaine Aff. 8/19115 ~ 6.); (Pl.'s Ex. B Fontaine Dep. 1S-15.) In 2007, 7-Eleven, Inc. exercised its second ten-year option under the Lease Agreement, extending the 1978 Lease Agreement for the property at 704 Congress Street in Portland, Maine through September 2018. (Fontaine Aff. 8/19/15 ~ 8, Ex. D.)
The court concludes that Ginn has established that the Lease Agreement defines its
lease obligations, so the question becomes whether anything in the Lease Agreement affords
Ginn the type or degree of control over the premises necessary to render Ginn potentially
liable to the Plaintiff. Plaintiff asserts that paragraphs 10 and 20 of the Lease Agreement meet
that standard.
Paragraph ten states in total:
10. ALTERATIONS. LESSEE shall not make any alterations involving structural changes without securing LESSOR'S written consent. Other alterations or additions, such as to store front, marquee and nonweightbearing
6 partitions may be made by LESSEE in good workmanlike manner without cost to LESSOR.
(Pl.'s Ex. A ~ 10.) As stated above, "control" in this context means "power over the property
that the landlord reserves pursuant to the terms of the lease or the tenancy, whether express or
implied." Stewart, 2002 ME 16, ~ 13, 788 A.2d 603. Under paragraph ten, Ginn expressly
reserves only the power to approve the tenant's structural changes. Paragraph ten does not
reserve for Ginn any power to make structural changes on the property on its own. There is
no language in paragraph ten under which Ginn expressly or impliedly reserves control over
the entire property or the parking area. Also, there is no evidence that any structural changes
were in progress as ofthe date of Plaintiffs injury.
Furthermore, Plaintiffs argument ignores paragraph nme of the Lease Agreement,
under which the tenant assumes exclusive control over the maintenance of the property,
including the parking area. Paragraph nine states:
9. MAINTENANCE. LESSEE agrees to maintain in good repair the outside walls, roof and floor of the building and the surface of the parking area, sidewalks, and driveways, as well as structural soundness of the building ...
(Pl.'s Ex. A ~ 9.) When paragraphs nine and ten are read together, it is clear that the tenant
has assumed exclusive control over the maintenance of the property, including the parking
area, and that Ginn has retained only the power to approve structural changes. Therefore, the
language of paragraph ten does not support a finding that Ginn retained control over the
property or owed Plaintiff a duty of care.
Plaintiff also argues that paragraph twenty of the Lease Agreement gives Ginn the
necessary degree of control over the property. (Pl.'s Opp'n to Def's Mot. Summ. J. 3-4.)
Under paragraph twenty, Ginn may "enter into and upon the same property or any part thereof
in the name of the whole and repossess the same as of his former estate, and expel the
TENANT" for any violation ofthe Lease Agreement. (Pl.'s Ex. A~ 20.) As discussed above,
7 "control" over the property does not include incidental control that comes from "the power to
coerce tenants through the power of eviction or nonrenewal of a lease." Stewart, 2002 ME 16,
~ 13, 788 A.2d 603. Thus, the fact that the Lease Agreement expressly grants Ginn the power
to evict the tenant is insufficient evidence for a fact finder to conclude that Ginn retained
control over the property. Therefore, paragraph twenty does not support a finding that Ginn
retained control over the property.
(2) Whether Circumstances Outside the Lease Agreement Raise Genuine Issues as to The Type or Degree of Control Retained by Ginn Over the Property
Plaintiff makes two arguments, based on circumstances apart from the terms of the
Lease Agreement, that she contends raise genuine issues as to whether Ginn retains sufficient
control over the property to make it liable to her.
She contends that Ginn demonstrated control over the property by contacting its tenant
regarding this lawsuit. (Pl.'s Opp'n to Def's Mot. Summ. J. 4-5.) At deposition, Fontaine
testified that Ginn contacted 7-Eleven, Inc. after learning of this lawsuit. (Pl.'s Ex. B Fontaine
Dep. 17, 30-31.) However, "control" in this context means "power over the property that the
landlord reserves pursuant to the terms of the lease or the tenancy, whether express or
implied." Stewart, 2002 ME 16, ~ 13, 788 A.2d 603. Contacting the tenant to inquire about
this lawsuit does not evidence that Ginn has expressly or impliedly retained any control over
the property under the terms of the lease and does not support a finding that Ginn retained
control over the property.
Plaintiff also argues that her injury occurred in a common area of the property under
Ginn's control, meaning, apparently, an area outside the property leased by Ginn to 7-Eleven,
Inc. (Pl.'s Opp'n to Def's Mot. Summ. J. 5.) However, Plaintiff cites no facts supporting her
contention that the parking area where her injury occurred was outside the property leased
exclusively to the operator ofthe 7-Eleven store. (Pl.'s Opp. S.M.F. ~~ 9, 13, 18-19). There is
8 no indication in the Lease Agreement or anywhere in the record that there are other tenants on
the property or that the parking lot of the property is a common area. In its response to
Plaintiffs opposition, Ginn cites to the affidavits and testimony of Fontaine, which name 7-
Eleven, Inc. as the only tenant on the property. (Def's Reply to Pl.'s Opp. S.M.F. ~~ 9, 18-19).
Further, as previously discussed, the Lease Agreement places on the tenant the responsibility
to maintain "the surface of the parking area, sidewalks, and driveways" under the terms of the
Lease Agreement. (Pl.'s Ex. A~ 9.) Nothing in the Lease Agreement grants Ginn the right to
control the parking area. Thus, there is no factual basis for finding that the injury occurred in a
common area under Ginn's control.
III. Conclusion
Based on the entire record, the court concludes that Defendant Ginn Portland LLC has
established that there are no genuine issues of material fact regarding its control over the
property where Plaintiff was injured, and that it is entitled to judgment as a matter oflaw on
Plaintiffs claim against it, because it has leased the property to a tenant without retaining or
exercising the type or degree of control over the property that is essential to imposing liability
on a landlord for injury to a third party on leased property controlled by the tenant.
It is hereby ORDERED AND ADJUDGED AS FOLLOWS:
Defendant Ginn Portland, LLC's motion for summary judgment on Plaintiff Alice
Albee's negligence claim is granted. Plaintiffs negligence claim against Defendants John
Trott, Jr. and New Bern Transport Corporation remains pending.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this Order by
reference in the docket. .~~U1: 4 ~;; / Dated October 20, 2015 , A.M. Horton Plaintiff-Steven Silin Esq/Caj Boatright Esq Defendant Trott and New Bern-Elizabeth Justice, Superior Court Stouder Esq Defendant Ginn Portland LLC-Stephen Wade Esq