Brown v. New Hampshire Northcoast Corp.

• Court: Superior Court of Maine
• Decided: December 8, 2014
• Docket: YORcv-13-198
• Status: Unpublished

Opinion

EN If RED DEC o 9 7014

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. CV-13-198 fAf -'IV~- IA-OV-14- 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

{/~L~ 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