MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 64 Docket: Oxf-16-438 Argued: March 3, 2017 Decided: April 6, 2017
Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
AMY L. CANNEY
v.
STRATHGLASS HOLDINGS, LLC
MEAD, J.
[¶1] Amy L. Canney appeals from a summary judgment entered by the
Superior Court (Oxford County, Clifford J.) in favor of Strathglass Holdings, LLC,
on Canney’s complaint asserting that Strathglass was liable for injuries
sustained by her minor child, Nicholai, when he was bitten by a dog kept by
Eric Burns, a neighbor who performed on-call maintenance work on properties
owned by Strathglass. Canney asserts that the court erred by determining as a
matter of law that Burns was not acting within the scope of his employment at
the time of the dog bite, and by granting summary judgment on the issue of
Strathglass’s direct liability. We affirm the judgment. 2
I. BACKGROUND
[¶2] The summary judgment record establishes the following
undisputed facts, which are viewed in the light most favorable to Canney, the
nonprevailing party. See Remmes v. Mark Travel Corp., 2015 ME 63, ¶ 3,
116 A.3d 466. Strathglass is a Maine limited liability company that owns eight
residential rental units in Rumford. At all times relevant to this action,
Strathglass rented a unit in a duplex to Canney, who lived there with her
thirteen-year-old son Nicholai, and rented the adjacent unit to Eric Burns.
[¶3] Peter Evans is the sole member of Strathglass. Evans, who lived in
Portland and was not always able to directly respond to emergencies or other
problems arising at his rental properties, hired Burns to provide on-call
maintenance and property management services. In that role, Burns
performed tasks such as showing apartments to potential renters, reviewing
rental applications and contacting references, delivering written leases to
tenants, collecting rent and security deposits, performing repairs, purchasing
repair materials, painting, cutting grass, cleaning, and performing inspections
of rental units. Burns was given a key to access Strathglass’s rental units for
maintenance purposes. 3
[¶4] Burns did not work from an external office; rather, Strathglass
instructed tenants to contact Burns by knocking on the door of his home or
calling him on the phone. Burns did not have set hours of employment, but
Strathglass hoped that he would address tenants’ needs as they arose. In return
for his work, Burns was paid and was permitted to rent his unit using Section 8
vouchers.
[¶5] On September 10, 2015, Burns’s girlfriend’s daughter invited
Nicholai to use Burns’s swimming pool. The pool was behind Burns’s unit in a
private yard enclosed by a fence and gate. Around this time, Burns was in his
home fixing a piece of furniture. While in Burns’s yard, Nicholai saw Burns
come out of the back door of his unit with his two-year-old male pit bull that he
keeps at the unit. Burns’s pit bull approached Nicholai and glared at him,
making him fearful that the dog might attack. The dog first nipped and then bit
down on Nicholai’s leg. The dog was not restrained prior to biting Nicholai.
Burns attempted to separate the dog from Nicholai after the attack. Nicholai
suffered serious injuries as a result of the bite. Prior to this event, Burns’s dog
had not bitten anyone or done anything to suggest to Burns that it was likely to
bite someone. Strathglass’s member, Evans, had been aware that Burns kept a 4
dog at his unit, but did not believe, and had no objective reason to believe, that
Burns’s dog was dangerous.
[¶6] On June 22, 2015, Canney filed a five-count complaint in the
Superior Court on behalf of Nicholai against Burns and Strathglass. The
complaint alleged that Burns possessed a dog with dangerous propensities;
negligently failed to warn Nicholai about the dog; negligently failed to properly
and reasonably secure the dog; and “was at all pertinent times the agent,
servant or employee of [Strathglass] and was maintaining the property for the
benefit of [Strathglass] and in the course of its business.”
[¶7] On January 25, 2016, Strathglass filed a motion for summary
judgment, a supporting statement of material facts, and affidavits of Burns and
Evans. Canney opposed the motion. See M.R. Civ. P. 56(h)(2). The court
granted Strathglass’s motion for summary judgment on the grounds that no
material facts were in dispute, the bite occurred in an area controlled by Burns,
Burns was not acting within the scope of his employment at the time of the bite,
and there was no evidence of the dog’s vicious propensity.
[¶8] Thereafter, Canney filed a motion for default judgment against
Burns after he failed to appear at an alternative dispute resolution session. The 5
court granted Canney’s motion and, after a hearing on damages at which Burns
did not appear, awarded Canney $75,000 plus interest and costs.
[¶9] Canney timely appealed from the court’s entry of summary
judgment in favor of Strathglass.1 See 14 M.R.S. § 1851 (2016); M.R. App. P. 2.
II. DISCUSSION
[¶10] “Summary judgment is appropriate when the parties’ statements
of material facts and the portions of the record referred to therein disclose no
genuine issues of material fact and reveal that one party is entitled to judgment
as a matter of law.” Spencer v. V.I.P., Inc., 2006 ME 120, ¶ 5, 910 A.2d 366; see
M.R. Civ. P. 56(c). “We review the grant of a motion for summary judgment
de novo and consider both the evidence and any reasonable inferences that the
evidence produces in the light most favorable to the party against whom the
summary judgment has been granted in order to determine if there is a genuine
issue of material fact.” Levis v. Konitzky, 2016 ME 167, ¶ 20, 151 A.3d 20
(quotation marks omitted). “We will affirm the grant of a summary judgment
against a plaintiff who presents insufficient evidence to support an essential
element in her cause of action, such that the defendant would be entitled to
1 Canney first appealed from the entry of summary judgment prior to obtaining the default judgment against Burns, and we dismissed that appeal as interlocutory due to her unresolved claims against Burns. 6
judgment as a matter of law on that state of the evidence at a trial.” Bell v.
Dawson, 2013 ME 108, ¶ 16, 82 A.3d 827.
A. Scope of Employment
[¶11] Canney asserts that the court erred by resolving the issue of
whether Burns acted within the scope of his employment because that issue is
a question of fact properly reserved for the fact-finder. We have long held that
whether an employee is acting within the scope of employment may be a
question of fact or law depending on the evidence presented in a particular
case. See R. I. Mitchell, Inc. v. Belgrade Shoe Co., 152 Me. 100, 102, 125 A.2d 80
(1956); Stevens v. Frost, 140 Me. 1, 3, 32 A.2d 164 (1943). Here, all material
facts have been deemed admitted by both parties; neither suggests the
existence of any other facts—disputed or otherwise—that need to be explored
on the scope of employment issue. Thus, the court did not err in determining,
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 64 Docket: Oxf-16-438 Argued: March 3, 2017 Decided: April 6, 2017
Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
AMY L. CANNEY
v.
STRATHGLASS HOLDINGS, LLC
MEAD, J.
[¶1] Amy L. Canney appeals from a summary judgment entered by the
Superior Court (Oxford County, Clifford J.) in favor of Strathglass Holdings, LLC,
on Canney’s complaint asserting that Strathglass was liable for injuries
sustained by her minor child, Nicholai, when he was bitten by a dog kept by
Eric Burns, a neighbor who performed on-call maintenance work on properties
owned by Strathglass. Canney asserts that the court erred by determining as a
matter of law that Burns was not acting within the scope of his employment at
the time of the dog bite, and by granting summary judgment on the issue of
Strathglass’s direct liability. We affirm the judgment. 2
I. BACKGROUND
[¶2] The summary judgment record establishes the following
undisputed facts, which are viewed in the light most favorable to Canney, the
nonprevailing party. See Remmes v. Mark Travel Corp., 2015 ME 63, ¶ 3,
116 A.3d 466. Strathglass is a Maine limited liability company that owns eight
residential rental units in Rumford. At all times relevant to this action,
Strathglass rented a unit in a duplex to Canney, who lived there with her
thirteen-year-old son Nicholai, and rented the adjacent unit to Eric Burns.
[¶3] Peter Evans is the sole member of Strathglass. Evans, who lived in
Portland and was not always able to directly respond to emergencies or other
problems arising at his rental properties, hired Burns to provide on-call
maintenance and property management services. In that role, Burns
performed tasks such as showing apartments to potential renters, reviewing
rental applications and contacting references, delivering written leases to
tenants, collecting rent and security deposits, performing repairs, purchasing
repair materials, painting, cutting grass, cleaning, and performing inspections
of rental units. Burns was given a key to access Strathglass’s rental units for
maintenance purposes. 3
[¶4] Burns did not work from an external office; rather, Strathglass
instructed tenants to contact Burns by knocking on the door of his home or
calling him on the phone. Burns did not have set hours of employment, but
Strathglass hoped that he would address tenants’ needs as they arose. In return
for his work, Burns was paid and was permitted to rent his unit using Section 8
vouchers.
[¶5] On September 10, 2015, Burns’s girlfriend’s daughter invited
Nicholai to use Burns’s swimming pool. The pool was behind Burns’s unit in a
private yard enclosed by a fence and gate. Around this time, Burns was in his
home fixing a piece of furniture. While in Burns’s yard, Nicholai saw Burns
come out of the back door of his unit with his two-year-old male pit bull that he
keeps at the unit. Burns’s pit bull approached Nicholai and glared at him,
making him fearful that the dog might attack. The dog first nipped and then bit
down on Nicholai’s leg. The dog was not restrained prior to biting Nicholai.
Burns attempted to separate the dog from Nicholai after the attack. Nicholai
suffered serious injuries as a result of the bite. Prior to this event, Burns’s dog
had not bitten anyone or done anything to suggest to Burns that it was likely to
bite someone. Strathglass’s member, Evans, had been aware that Burns kept a 4
dog at his unit, but did not believe, and had no objective reason to believe, that
Burns’s dog was dangerous.
[¶6] On June 22, 2015, Canney filed a five-count complaint in the
Superior Court on behalf of Nicholai against Burns and Strathglass. The
complaint alleged that Burns possessed a dog with dangerous propensities;
negligently failed to warn Nicholai about the dog; negligently failed to properly
and reasonably secure the dog; and “was at all pertinent times the agent,
servant or employee of [Strathglass] and was maintaining the property for the
benefit of [Strathglass] and in the course of its business.”
[¶7] On January 25, 2016, Strathglass filed a motion for summary
judgment, a supporting statement of material facts, and affidavits of Burns and
Evans. Canney opposed the motion. See M.R. Civ. P. 56(h)(2). The court
granted Strathglass’s motion for summary judgment on the grounds that no
material facts were in dispute, the bite occurred in an area controlled by Burns,
Burns was not acting within the scope of his employment at the time of the bite,
and there was no evidence of the dog’s vicious propensity.
[¶8] Thereafter, Canney filed a motion for default judgment against
Burns after he failed to appear at an alternative dispute resolution session. The 5
court granted Canney’s motion and, after a hearing on damages at which Burns
did not appear, awarded Canney $75,000 plus interest and costs.
[¶9] Canney timely appealed from the court’s entry of summary
judgment in favor of Strathglass.1 See 14 M.R.S. § 1851 (2016); M.R. App. P. 2.
II. DISCUSSION
[¶10] “Summary judgment is appropriate when the parties’ statements
of material facts and the portions of the record referred to therein disclose no
genuine issues of material fact and reveal that one party is entitled to judgment
as a matter of law.” Spencer v. V.I.P., Inc., 2006 ME 120, ¶ 5, 910 A.2d 366; see
M.R. Civ. P. 56(c). “We review the grant of a motion for summary judgment
de novo and consider both the evidence and any reasonable inferences that the
evidence produces in the light most favorable to the party against whom the
summary judgment has been granted in order to determine if there is a genuine
issue of material fact.” Levis v. Konitzky, 2016 ME 167, ¶ 20, 151 A.3d 20
(quotation marks omitted). “We will affirm the grant of a summary judgment
against a plaintiff who presents insufficient evidence to support an essential
element in her cause of action, such that the defendant would be entitled to
1 Canney first appealed from the entry of summary judgment prior to obtaining the default judgment against Burns, and we dismissed that appeal as interlocutory due to her unresolved claims against Burns. 6
judgment as a matter of law on that state of the evidence at a trial.” Bell v.
Dawson, 2013 ME 108, ¶ 16, 82 A.3d 827.
A. Scope of Employment
[¶11] Canney asserts that the court erred by resolving the issue of
whether Burns acted within the scope of his employment because that issue is
a question of fact properly reserved for the fact-finder. We have long held that
whether an employee is acting within the scope of employment may be a
question of fact or law depending on the evidence presented in a particular
case. See R. I. Mitchell, Inc. v. Belgrade Shoe Co., 152 Me. 100, 102, 125 A.2d 80
(1956); Stevens v. Frost, 140 Me. 1, 3, 32 A.2d 164 (1943). Here, all material
facts have been deemed admitted by both parties; neither suggests the
existence of any other facts—disputed or otherwise—that need to be explored
on the scope of employment issue. Thus, the court did not err in determining,
as a question of law, whether Burns was acting within the scope of his
employment.
[¶12] Next, we consider whether the court erred in concluding that
Burns was not acting within the scope of his employment at the time of the dog
bite. The Restatement (Third) of Agency provides, in relevant part:
An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course 7
of conduct subject to the employer’s control. An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.
Restatement (Third) of Agency § 7.07(2) (Am. Law Inst. 2006); see also Picher
v. Roman Catholic Bishop of Portland, 2009 ME 67, ¶ 32, 974 A.2d 286.
[¶13] Here, Burns was hired by Strathglass to provide on-call assistance
for tenants’ emergencies and maintenance requests. Part of his responsibility
necessarily involved being reachable by tenants at his home or via his phone,
and Strathglass hoped that Burns would respond to tenants’ needs as they
arose. However, the fact that Burns was on call at his home when Nicholai was
injured does not, by itself, establish that Burns’s acts or omissions were within
the scope of his employment by Strathglass.2 See Clickner v. City of Lowell,
663 N.E.2d 852, 855 (Mass. 1996) (“Most jurisdictions have ruled that the mere
fact of being on call does not place employees within the scope of their
employment.”).
[¶14] Neither party disputes that Nicholai entered Burns’s private yard
for purposes completely unrelated to Burns’s employment with Strathglass.
2 We have held that injuries that occurred while an employee was “on call” were not necessarily within the course of employment for worker’s compensation purposes. See Westberry v. Town of Cape Elizabeth, 492 A.2d 888, 890 (Me. 1985) (“The fact that [an employee] was on call twenty-four hours a day is not, without more, enough to bring him within the course of employment.”). 8
There is no record evidence suggesting that, at the time of the dog bite, Burns
was performing any work assigned by Strathglass or that Burns was engaged
in any course of conduct over which Strathglass had control. To the contrary,
the record indicates that Burns was in his home fixing a piece of furniture prior
to the dog bite and that Nicholai entered the backyard of the property for purely
recreational purposes.
[¶15] Canney urges us to find this case similar to Rodriguez v. Town of
Moose River, which involved a town clerk who, pursuant to an agreement with
the Town, conducted official town business from her home. 2007 ME 68,
¶¶ 3, 4, 922 A.2d 484. When visiting the clerk’s home to register two motor
vehicles, Rodriguez fell down the building’s front stairs, which had no handrail.
Id. ¶¶ 7-9. We concluded that because the clerk “was required to open her
home to the public as part of her duties . . . , her failure to replace the handrail
on her stairs was an act within the scope of her employment” with the Town.
Id. ¶ 26.
[¶16] Here, unlike the plaintiff in Rodriguez who was visiting the clerk’s
home to conduct Town business, Nicholai entered Burns’s property for purely
recreational purposes unrelated to any business with Strathglass. Moreover,
while Rodriguez entered the clerk’s home to conduct business using its front 9
stairs, there is nothing in the record suggesting that Burns’s gated and fenced
backyard was an area where Burns’s duties to Strathglass were undertaken;
Canney admitted in her pleadings that Burns’s yard was private and not shared
with other tenants or the public.
[¶17] In sum, it is clear based on the uncontroverted facts that neither
Burns’s acts or omissions nor Nicholai’s presence on his premises were in any
way related to Burns’s employment or agency with Strathglass. The court’s
finding that Strathglass was entitled to a grant of summary judgment on
Canney’s respondeat superior claims was proper.
B. Direct Liability for Negligence
[¶18] Canney asserts that even if Burns was acting outside the scope of
his employment, Strathglass is directly liable on a negligence theory for
damages it proximately caused as the owner of business premises.
[¶19] To survive a summary judgment on a direct liability theory, Canney
must assert a prima facie case of negligence against Strathglass. See Stanton v.
Univ. of Me. Sys., 2001 ME 96, ¶ 6, 773 A.2d 1045. “A prima facie case of
negligence requires a plaintiff to establish the following elements: a duty owed,
a breach of that duty, and an injury to the plaintiff that is proximately caused
by a breach of that duty.” Id. ¶ 7. 10
[¶20] Here, Canney asserts in her complaint that Strathglass is “licensed
to do business in the State of Maine,” and that Burns was acting as Strathglass’s
“agent, servant or employee . . . and was maintaining the property for the
benefit of [Strathglass] and in the course of its business.” These allegations
suggest only that Strathglass is subject to vicarious liability for Burns’s acts or
omissions. Canney’s complaint fails to allege a theory of direct liability against
Strathglass, and she offers no evidence in the summary judgment record that
would support a direct claim of negligence against Strathglass. Accordingly, the
court did not err when it granted summary judgment on all counts of Canney’s
complaint.
The entry is:
Judgment affirmed.
William C. Herbert, Esq. (orally), Hardy, Wolf & Downing, P.A., Lewiston, for appellant Amy L. Canney
James B. Haddow, Esq. (orally), Petruccelli, Martin & Haddow, LLP, Portland, for appellee Strathglass Holdings, LLC
Oxford County Superior Court docket number CV-2015-36 FOR CLERK REFERENCE ONLY