STATE OF MAINE SUPERIOR COURT HANCOCK, ss DOCKET NO. CV-10-27 I<, '!\.1 C-" J1 f\ N-. II /J.D Il 2))
CHRISTINA M. DARVEAU, p.p.a. OF DEVIN R. DARVEAU Plaintiff
V.
DOWN EAST FAMILY YOUNG MEN'S CHRISTIAN ASSOCIATION Defendant
DECISION AND ORDER
This matter is before the Court on a Motion for
Summary Judgment filed by the Defendant with the Court on
January 4, 2011, together with a supporting memorandum and
statement of material facts. Plaintiff has filed a
responsive memorandum together with an opposing statement
of material facts. The deposition transcripts of Christina
M. Darveau and Peter Farragher have likewise been filed and
considered by the Court in deciding this Motion.
Summary judgment is appropriate "if the record reflects
that there is no genuine issue of material fact and the
movant is entitled to a judgment as a matter of law."
Burdzel v. Sobus, 2000 ME 84, ~ 6, 750 A.2d 573, 575. "A
genuine issue of material fact exists when there is
sufficient evidence to require a fact-finder to choose
1 between competing versions of the truth at trial." Lever
v. Acadia Hosp. Corp., 2004 ME 35, ~ 2, 845 A.2d 1178,
1179. A material fact is one having the potential to affect
the outcome of the suit. Bay View Bank v. Highland Golf
Mortgages 202 ME 178 ~ 9, 814 A.2d 449, 452. In its
statement of material facts, a party "must explicitly
admit, deny, or qualify facts by reference to each numbered
paragraph, and a denial or qualification must be supported
by a record citation." Doyle v. Dep't of Human Servs.,
2003 ME 61, ~ 10, 824 A.2d 48, 52 (quoting Levine v. R.B.K.
Caly Corp., 2001 ME 77, ~ 6 n. 5, 770 A.2d 653, 655).
"Facts contained in a supporting or opposing statement of
material facts, if supported by record citations as
required by this rule, shall be deemed admitted unless
properly controverted." Stanley v. Hancock County Comm'rs,
204 ME 157, ~ 13, 864 A.2d 169, 174. In evaluating
material facts, the trial court shall consider only those
portions of the record referred to in the statement of
material facts. Corey v. Norman, Hanson & Detroy 1999 ME
196, ~8, 742 A.2d 933, 938. The trial court must give the
party opposing a summary judgment the benefit of any
inferences that might reasonably be drawn from the facts
presented. Curtis v. Porter, 2001 ME 158, ~9, 784 A.2d 18,
21. To withstand "a motion for a summary jUdgment, the
2 party opposing the motion must establish a prima facie case
for each element of his/her cause of action. If an
opposing party does not present sufficient evidence on the
essential elements . . . the moving party is entitled to a
summary judgment." Blake v. State, 2005 ME 32, ~ 4, 868
A.2d 234, 237 (quotation marks omitted).
Background
There does not appear to be any dispute as to the
material facts. The Ellsworth YMCA owned and operated a
Skate Park on its property in Ellsworth open to the public.
(Def. Req. to Admit, #2) On August 6, 2007, Devin R.
Darveau, then age 7 1 , was injured while riding his bicycle
at the Skate Park owned by the Down East Family YMCA. (Def.
Req. to Admit #8) Neither the Plaintiff nor her family
were charged any fees for use of the Skate Part owned by
the Down East Family YMCA on August 6, 2007 or at any time
prior to that. (Def. Req. to Admit #6). Neither Mr. and
Mrs. Darveau nor their children were dues paying members of
the Down East Family YMCA in 2007 (Mrs. Darveau's
deposition at pg. 25).
In their complaint, Plaintiff and her son allege
liability on the part of the defendant on a theory of
Christina Darveau's deposition at pg. 15.
3 negligence and negligent infliction of emotional distress.
Negligence four elements of proof: duty, breach, causation
and damages. Maddocks v. Whitcomb, 2006 ME 47, ~10, 896 .2d
265, 268. The lack of one or more of the elements defeats
the claim for negligence and negligent infliction of
emotional distress.
Discussion
The thrust of defendant's Motion for Summary Judgment
is that the activities Devin was engaged in, at the time he
suffered his injuries and where he was injured, fall within
the recreational activity statute. It is the defendant's
position that, as a matter of law on these facts, the
defendant owes no duty to Devin Darveau or his mother as
has been alleged based on the language in 14 M.R.S. §159-A.
The recreational activities statute provides in pertinent
part:
"1 (A) "Premises" means improved and unimproved lands ...or structures on those lands. l(B) "Recreational or harvesting activities: means recreational activities conducted out-of-doors including, but not limited to, biking. 2. Limited duty. An owner ... does not have a duty of care to keep the premises safe for entry or use by others for recreational ... activities or to give warning of any hazardous condition, use, structure or activity on the premises to persons entering for those purposes. 4. Limitations on section. This section does not limit the liability that would otherwise exist: A. For a willful or malicious failure to guard or to warn against a dangerous condition, use, structure or activity.
4 5. No duty created. Nothing in this section creates a duty of care or ground of liability for injury to a person or property."
In the context of this statute, the submissions of the
parties establish as uncontested fact that Skate Park and
the structures in it (i.e. ramps, jumps etc.) where this
incident happened was owned by defendant Down East Family
YMCA. Likewise it is undisputed that Devin was riding a
bike when the incident happened resulting in his injuries
and that activity is specifically covered by the
recreational activity statute. (14 M.R.S. 159-A (l.B.)
There is neither an allegation nor facts that support the
suggestion that the injury sustained by Devin resulted from
a willful or malicious failure to warn or guard against a
hazardous condition, use, structure or activity, an
exception or limitation within the statute (14 M.R.S.159-A
(4.)(A.). Although plaintiff makes reference to subsequent
remedial measures (i.e. employees supervising on site and
securing the moveable elements of the Skate Park), that
evidence is neither material to the allegations of
negligence, nor admissible under the Rules of Evidence
(Rule 407), nor does it demonstrate willful or malicious
failure to warn, falling within the statutory exception.
The recreational activity statute is clear and
unambiguous on its face and must be given its plain
5 meaning. Maddocks v. Whitcomb, supra at ~4, Stanley v.
Tilcon Maine, Inc., 541 A.2d 951, 952 (Me. 1988) It does
not need to be interpreted. By its clear terms "biking" is
included in those recreational activities that the statute
protects from liability. While plaintiff, through counsel,
argues that the recreational activity statute should be
interpreted to apply only to activities that take place on
non-urban properties, that is a distinction to be drawn by
the legislature not the courts. Stanley v. Tilcon, supra
at 953. The legislature could have imposed a variety of
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STATE OF MAINE SUPERIOR COURT HANCOCK, ss DOCKET NO. CV-10-27 I<, '!\.1 C-" J1 f\ N-. II /J.D Il 2))
CHRISTINA M. DARVEAU, p.p.a. OF DEVIN R. DARVEAU Plaintiff
V.
DOWN EAST FAMILY YOUNG MEN'S CHRISTIAN ASSOCIATION Defendant
DECISION AND ORDER
This matter is before the Court on a Motion for
Summary Judgment filed by the Defendant with the Court on
January 4, 2011, together with a supporting memorandum and
statement of material facts. Plaintiff has filed a
responsive memorandum together with an opposing statement
of material facts. The deposition transcripts of Christina
M. Darveau and Peter Farragher have likewise been filed and
considered by the Court in deciding this Motion.
Summary judgment is appropriate "if the record reflects
that there is no genuine issue of material fact and the
movant is entitled to a judgment as a matter of law."
Burdzel v. Sobus, 2000 ME 84, ~ 6, 750 A.2d 573, 575. "A
genuine issue of material fact exists when there is
sufficient evidence to require a fact-finder to choose
1 between competing versions of the truth at trial." Lever
v. Acadia Hosp. Corp., 2004 ME 35, ~ 2, 845 A.2d 1178,
1179. A material fact is one having the potential to affect
the outcome of the suit. Bay View Bank v. Highland Golf
Mortgages 202 ME 178 ~ 9, 814 A.2d 449, 452. In its
statement of material facts, a party "must explicitly
admit, deny, or qualify facts by reference to each numbered
paragraph, and a denial or qualification must be supported
by a record citation." Doyle v. Dep't of Human Servs.,
2003 ME 61, ~ 10, 824 A.2d 48, 52 (quoting Levine v. R.B.K.
Caly Corp., 2001 ME 77, ~ 6 n. 5, 770 A.2d 653, 655).
"Facts contained in a supporting or opposing statement of
material facts, if supported by record citations as
required by this rule, shall be deemed admitted unless
properly controverted." Stanley v. Hancock County Comm'rs,
204 ME 157, ~ 13, 864 A.2d 169, 174. In evaluating
material facts, the trial court shall consider only those
portions of the record referred to in the statement of
material facts. Corey v. Norman, Hanson & Detroy 1999 ME
196, ~8, 742 A.2d 933, 938. The trial court must give the
party opposing a summary judgment the benefit of any
inferences that might reasonably be drawn from the facts
presented. Curtis v. Porter, 2001 ME 158, ~9, 784 A.2d 18,
21. To withstand "a motion for a summary jUdgment, the
2 party opposing the motion must establish a prima facie case
for each element of his/her cause of action. If an
opposing party does not present sufficient evidence on the
essential elements . . . the moving party is entitled to a
summary judgment." Blake v. State, 2005 ME 32, ~ 4, 868
A.2d 234, 237 (quotation marks omitted).
Background
There does not appear to be any dispute as to the
material facts. The Ellsworth YMCA owned and operated a
Skate Park on its property in Ellsworth open to the public.
(Def. Req. to Admit, #2) On August 6, 2007, Devin R.
Darveau, then age 7 1 , was injured while riding his bicycle
at the Skate Park owned by the Down East Family YMCA. (Def.
Req. to Admit #8) Neither the Plaintiff nor her family
were charged any fees for use of the Skate Part owned by
the Down East Family YMCA on August 6, 2007 or at any time
prior to that. (Def. Req. to Admit #6). Neither Mr. and
Mrs. Darveau nor their children were dues paying members of
the Down East Family YMCA in 2007 (Mrs. Darveau's
deposition at pg. 25).
In their complaint, Plaintiff and her son allege
liability on the part of the defendant on a theory of
Christina Darveau's deposition at pg. 15.
3 negligence and negligent infliction of emotional distress.
Negligence four elements of proof: duty, breach, causation
and damages. Maddocks v. Whitcomb, 2006 ME 47, ~10, 896 .2d
265, 268. The lack of one or more of the elements defeats
the claim for negligence and negligent infliction of
emotional distress.
Discussion
The thrust of defendant's Motion for Summary Judgment
is that the activities Devin was engaged in, at the time he
suffered his injuries and where he was injured, fall within
the recreational activity statute. It is the defendant's
position that, as a matter of law on these facts, the
defendant owes no duty to Devin Darveau or his mother as
has been alleged based on the language in 14 M.R.S. §159-A.
The recreational activities statute provides in pertinent
part:
"1 (A) "Premises" means improved and unimproved lands ...or structures on those lands. l(B) "Recreational or harvesting activities: means recreational activities conducted out-of-doors including, but not limited to, biking. 2. Limited duty. An owner ... does not have a duty of care to keep the premises safe for entry or use by others for recreational ... activities or to give warning of any hazardous condition, use, structure or activity on the premises to persons entering for those purposes. 4. Limitations on section. This section does not limit the liability that would otherwise exist: A. For a willful or malicious failure to guard or to warn against a dangerous condition, use, structure or activity.
4 5. No duty created. Nothing in this section creates a duty of care or ground of liability for injury to a person or property."
In the context of this statute, the submissions of the
parties establish as uncontested fact that Skate Park and
the structures in it (i.e. ramps, jumps etc.) where this
incident happened was owned by defendant Down East Family
YMCA. Likewise it is undisputed that Devin was riding a
bike when the incident happened resulting in his injuries
and that activity is specifically covered by the
recreational activity statute. (14 M.R.S. 159-A (l.B.)
There is neither an allegation nor facts that support the
suggestion that the injury sustained by Devin resulted from
a willful or malicious failure to warn or guard against a
hazardous condition, use, structure or activity, an
exception or limitation within the statute (14 M.R.S.159-A
(4.)(A.). Although plaintiff makes reference to subsequent
remedial measures (i.e. employees supervising on site and
securing the moveable elements of the Skate Park), that
evidence is neither material to the allegations of
negligence, nor admissible under the Rules of Evidence
(Rule 407), nor does it demonstrate willful or malicious
failure to warn, falling within the statutory exception.
The recreational activity statute is clear and
unambiguous on its face and must be given its plain
5 meaning. Maddocks v. Whitcomb, supra at ~4, Stanley v.
Tilcon Maine, Inc., 541 A.2d 951, 952 (Me. 1988) It does
not need to be interpreted. By its clear terms "biking" is
included in those recreational activities that the statute
protects from liability. While plaintiff, through counsel,
argues that the recreational activity statute should be
interpreted to apply only to activities that take place on
non-urban properties, that is a distinction to be drawn by
the legislature not the courts. Stanley v. Tilcon, supra
at 953. The legislature could have imposed a variety of
conditions defining when and how the recreational activity
statute should be applied, such as private/public/municipal
or non-profit/profit ownership. It elected to be inclusive
in terms of improved and unimproved lands. Accordingly,
this Court interprets this statute broadly to apply to
these facts. Likewise, plaintiff through counsel argues
that the presence of a liability insurance policy in favor
of the defendant, which might benefit the plaintiff, should
impact on application of the recreational activity statute.
The Court does not view the presence or absence of
liability insurance as a material fact impacting on the
application of the recreational activities statute.
The Court finds that this Skate Park where Devin
Darveau was injured was improved lands with structures
6 covered by the recreational activities statute. It further
finds that his activity of biking at the time of his injury
was a recreational activity as used by the recreational
activity statute.
Accordingly, applying 14 M.R.S. 159-A to these facts
the Court concludes as a matter of law that the defendant
owed no duty to keep these premises safe or to give warning
of any hazardous structure or activity on the property. By
application of this statute, there was no duty owed by the
defendant to either Devin Darveau or Christina Darveau.
Accordingly the defendant is entitled to summary judgment
on each count as a matter of law.
Defendant's Motion for Summary Judgment is GRANTED.
Dated: January 20, 2011
7 CHRISTINA M DARVEAU AS MOTHER AND FRIEND - PLAINTIFF OBO SUPERIOR COURT 221 TURKEY PATH HANCOCK, ss. BUCKSPORT ME 04416 Docket No ELLSC-CV-2010-00027 Attorney for: CHRISTINA M DARVEAU AS MOTHER AND FRIEND MARVIN GLAZIER - RETAINED 06/16/2010 VAFIADES BROUNTAS & KOMINSKY DOCKET RECORD 23 WATER STREET PO BOX 919 BANGOR ME 04402-0919
Attorney for: CHRISTINA M DARVEAU AS MOTHER AND FRIEND LISA AC LUNN - RETAINED 06/16/2010 VApIADES BROUNTAS & KOMINSKY 23 WATER STREET PO BOX 919 BANGOR ME 04402-0919
DEVIN R DARVEAU - MINOR PLAINTIFF vs DOWNEAST FAMILY YOUNG MEN'S CHRISTIAN ASSN - DEFENDANT
Attorney for: DOWNEAST FAMILY YOUNG MEN'S CHRISTIAN ASSN PAUL CHAIKEN - RETAINED 06/16/2010 RUDMAN & WINCHELL 84 HARLOW ST PO BOX 1401 BANGOR ME 04402-1401
Filing Document: COMPLAINT Minor Case Type: PROPERTY NEGLIGENCE Filing Date: 06/16/2010