Discussion CMP asserts it is entitled to summary judgment because the record reveals that it did not have control of the parking lot where Mr. Colfer was injured; rather, exclusive possession and control belonged to its tenant, BIW. CMP argues that without such control, Mr. Colfer cannot establish that CMP owed him a duty of care4a requisite element of negligence. Bell v. Dawson, 2013 ME 108, § 17, 82 A.3d 827 (<8A cause of action for negligence has four elements: (1) a duty of care owed to the plaintiff; (2) a breach of that duty; (3) an injury; and (4) causation, that is, a finding that the breach of the duty of care was a cause of the injury.=).
Nevertheless, a landlord may be found liable for injuries sustained on land over which the landlord is deemed to have
The Law Court has defined
3 There are various additional exceptions to the general rule of landlord nonliability that do not appear to be at issue for purposes of this motion. Under those exceptions, liability may attach when the landlord <8(a) fails to disclose the existence of a latent defect which he knows or should have known existed but which is not known to the tenant nor discoverable by him in the exercise of reasonable care; (b) gratuitously undertakes to make repairs and does so negligently; or (c) expressly agrees to maintain the premises in good repair.= Boles, 2021 ME 49, § 7, 260 A.3d 697. Retention of control is a question of fact to be determined in the light of all the significant circumstances. Chiu, 2002 ME 8, J 12, 788 A.2d 183; Rodrigue v. Rodrigue, 1997 ME 99, § 11, 694 A.2d 924. However, control is best ascertained by the intent of the parties as expressed in the lease. See Boles, 2021 ME 49, J 7-8, 260 A.3d 697. And
Here, for CMP to be entitled to summary judgment, it must demonstrate that it did not have any control over the parking lot area where Mr. Colfer was injured. Chiu, 2002 ME 8, 7 13, 788 A.2d 183. The court finds there is a genuine issue of material fact regarding that issue. The court9s analysis begins with the terms of the lease agreement entered by BIW and CMP. Under the lease, CMP agreed to lease to BIW three parcels of land adjacent to Castine street in Bath, excluding from the leased premises
Nevertheless, the uses to which BIW could put the property4and BIW9s right under the lease4were expressly limited and subject to CMP9s use of the land for public utility purposes. Specifically, Section Seven of the lease stated:
To that end, the lease further:
e
Tenant shall, throughout the Term of this Lease, at its sole cost and expense, maintain the parking area within the Premises in good condition and repair, safe, clean and free of refuse, obstructions, ice and snow... . Landlord shall not be required to maintain the Premises, or to furnish any services, or to make any improvements, repairs or alterations in or to the Premises during the Term of this Lease; except in the event that such maintenance, improvements, repairs or alterations are necessitated by Landlord9s actions or negligence. _
Id. at p. 3.
While BIW had an obligation to maintain the parking lot and keep it free of ice and snow, Section Six contemplated that CMP would maintain the premises when such maintenance was necessitated by CMP9s
* Additionally, to the extent the slope of the parking lot is an issue in this case, see Pl.9s $.M.F. J 22, the court further observes that CMP reserved the right to approve or veto any excavation work that could affect vertical clearance between CMP9s transmission lines. Lease Agreement at p. 17. the lease, the court is unconvinced that Section Six establishes a definitive intent that BIW assume exclusive control over the parking lot. As one court observed, provisions of this sort are not necessarily determinative of control and are
On appeal, the plaintiff argued that the trial court erred in concluding that the premises was under the exclusive control of the tenant because the landlord had reserved the right to access the premises
In reaching its decision, the Law Court observed that the
This case is distinguishable from Boles in a number of ways. First, under the present lease agreement, CMP reserved rights to the premises beyond the mere reservation of access for purposes of repair and inspection4not least, a right to use the premises for public utility purposes that was superior to the
e CMP initiated the process of closing the parking lot to facilitate certain construction projects and upgrades to its substation, Def.9s S.M.F. | 7, 12-14; e On February 4 and 19, 2020, CMP agents entered the premises to evaluate potential obstacles, safety hazards, and outreach needs associated with its upcoming upgrades; Pl.9s S.M.F. J] 13-14, Def.9s S.M.F. 9 16- 17, 20; e Throughout February 2020, project managers, surveyors, and site engineers visited the premises as they needed to conduct planning and other
The entry is: CMP9s motion for summary judgment is denied.
The Clerk shall enter this Order upon the doc reference.
Dated: May 24, 2023 | Deborah P. Cashman Justice, Maine Superior Court
Entered on the docket Lo/Zi- 12.3