Emmons v. Hometown Builders

• Court: Superior Court of Maine
• Decided: September 21, 2010
• Docket: YORcv-09-046
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DO\=KET NO: CV-09-046 L1P'{~

ADAM EMMONS,

Plaintiff,

v. ORDER

HOMETOWN BUILDERS, LLC, GEORGE DUBOIS, JORNAT, LLC, .arid FRANKLIN SANBORN,

Defendants

Plaintiff Adam Emmons filed this action against defendants Hometown Builders,

LLC, George Dubois, Jornat, LLC, and Franklin Sanborn, alleging that their negligence

caused him to fall from a roof while constructing a home. The defendants request

summary judgment.

BACKGROUND Defendant Franklin Sanborn and his wife, Deborah L. Sanborn, own property at

28 Brown Brook Road in Cornish, Maine. (Jornat Supp. S.M.F. <[ 3.) They are also the

sole members of Jornat, LLC, a Maine limited liability company organized in 2006.

(Jornat Supp. S.M.F. <[ 1.) Jornat is managed by Deborah Sanborn, and owns a gravel pit

adjacent to the Sanborn's property at 28 Brown Brook Road. (Jornat Supp. S.M.F. 1[<[ 1­

4.) It is in the business of selling gravel and plowing snow in the winter. (Emmons

Add'l S.M.F. <[ 27.)l

Mr. Emmons appears to have filed the same Additional Statement of Material Facts in opposition to each defendant's motion for summary judgment. At the time of the incident giving rise to this litigation, the Sanborns were in the

process of building a house at 28 Brown Brook Road. Mr. Sanborn, who has been

involved in construction and worked as a general contractor for over fifty years, listed

himself as the general contractor and owner on the building permit filed with the Town

of Cornish. (Emmons Add'l S.M.F. <[<[ 9-10.) He excavated the site himself, and the

Sanborns purchased all of the building materials themselves. (Sanborn Add'l S.M.F. <[ 1;

Emmons Add'l S.M.F. <[ 13.) Mr. Sanborn hired contractors to pour the foundation and

install the plumbing, electrical work, and heating. (Sanborn Add'l S.M.F. <[2.) He also

contracted defendant Hometown Builders, LLC, to frame the house, roof it, and install

siding, doors, and windows. (Sanborn Add'l S.M.F. <[ 1.) Defendant George Dubois is a

member of Hometown Builders. (Emmons Add'l S.M.F. <[ 18.) Mr. Sanborn participated

in the framing and roofing work, but the extent of his involvement is disputed.

(Compare Sanborn Add'l S.M.F. <[<[ 3, 5-6 with Emmons Add'l S.M.F. <[ 12 and Dubois

Dep. at 48.)

Hometown Builders, acting through Mr. Dubois, contracted with plaintiff Adam

Emmons to assist with roof construction. (Emmons Add'l S.M.F. <[<[ 2,25.) Mr. Emmons

began to work on April 14, 2008, arriving on site at approximately 8:00 am. (Emmons

Add'l S.M.F. <[<[ 3, 28.) It was his first time at the property, and he was introduced to

Mr. Sanborn. (Emmons Add'l S.M.F. <[ 4; Sanborn Supp. S.M.F. <[ 2.) The parties dispute

what happened next. The defendants testify that they told Mr. Emmons not to go up on

the roof because they could see frost and it would be slippery. (Sanborn Supp. S.M.F.

<[ 3.) Mr. Emmons responded that he could see that the roof was slippery, but he

grabbed a ladder and climbed up onto the roof anyway. (Sanborn Supp. S.M.F. <[<[ 3-4.)

Mr. Emmons claims that shortly after arriving, Mr. Dubois directed him to finish

installing ice and water shield on the roof. (Emmons Add'l S.M.F. <[ 29.) He denies that

2 either defendant warned him not to go on the roof that morning. (Emmons Add'l S.M.F.

9I 29.) Regardless of whether the defendants warned Mr. Emmons or not, when the

parties finished speaking Mr. Dubois proceeded to the rear of the house to begin

erecting staging. (Dubois S.M.F. 9I 21.) Mr. Sanborn presumably accompanied him.

After Mr. Dubois went to the back of the house, Mr. Emmons picked up a roll of ice and

water shield and brought it too the roof. (Dubois S.M.F. 9I 22.) Mr. Emmons had

experience with roofing, and he noticed that there was no staging or other fall­

protection device on the front of the house. (Emmons Add'l S.M.F. 9I9I 30-32; Dubois

S.M.F. 9I9I 15, 25.) Though he had never gone onto a roof without the benefit of staging,

he decided to so that day. (Dubois S.M.F. 9I9I 23-24.)

Mr. Emmons climbed to the top of the roof and set down the roll of ice and water

shield. (Dubois S.M.F. 9I 27.) He could not see Mr. Dubois. (Dubois S.M.F. 9I 26.) He

went to straddle a valley in the roof, and then slipped and fell off the front side of the

house. (Dubois S.M.F. 9I9I 27-28; Emmons Add'l S.M.F. 9I 30.) Mr. Emmons sustained

several broken bones requiring multiple surgeries and extensive hospitalization.

(Emmons Add'l S.M.F. 9I9I 33-34.) Mr. Emmons does not know what caused him to slip

and fall. (Sanborn S.M.F. 9I 6; Emmons Dep. at 31.)

Mr. Emmons filed this complaint on February 19, 2009, seeking to hold

Hometown Builders, LLC, George Dubois, Jornat, LLC, and Franldin Sanborn liable on

a sole count of negligence. The defendants have each filed for summary judgment.

DISCUSSION

Summary judgment is appropriate where there are no genuine issues of material

fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c);

see also Levine v. R.B.I<. Caly Corp., 2001 ME 77, 9I 4, 770 A.2d 653, 655. An issue of "fact

3 exists when there is sufficient evidence to require a fact-finder to choose between

competing versions of the truth at trial." Inkell v. Livingston, 2005 ME 42, lJI 4, 869 A.2d

745, 747 (quoting Lever v. Acadia Hasp. Corp., 2004 ME 35, lJI 2, 845 A.2d 1178, 1179).

This action is premised solely on negligence. To recover for negligence, Mr.

Emmons must show: (1) the defendants owed him a duty; (2) the defendants breached

that duty; and (3) the breach proximately caused him injury. Brown v. Crown Equip.

Corp., 2008 ME 186, 9I 14, 960 A.2d 1188, 1193. Each defendant claims that it did not owe

Mr. Emmons any duty. Mr. Sanborn also argues that Mr. Emmons has failed to make a

prima facie showing of proximate causation.

1. Proximate Causation

Mr. Sanborn argues that Mr. Emmons has failed to make a prima facie showing

of proximate causation between the lack of safety equipment and his injury. Because it

has the power to resolve this litigation in its entirety, the argument regarding proximate

causation will be addressed first.

The gist of Mr. Emmons's case is that the defendants breached a duty by failing

to provide staging or other fall-prevention devices, and this lack of fall protection

proximately caused his injuries. A negligent act proximately causes harm if it was (a) "a

substantial factor in bringing about the harm, and (b) there is no rule of law relieving

the actor from liability because of the manner in which his negligence has resulted in

the harm." Wing v. Morse, 300 A.2d 491, 495-96 (Me. 1973). Mr. Sanborn analogizes this

case to Addy v. Jenkins, Inc. and argues that Mr. Emmons has failed to make any

showing that the alleged negligence proximately caused him harm. 2009 ME 46, 969

A.2d 935.

In Addy, the plaintiff was a roofing subcontractor working for the defendant.

2009 ME 46, 9I 2, 969 A.2d at 937. The defendant had "erected three-story staging to be

4 used during the project .. , [but] had not installed safety equipment, including rails,

platforms, or ladders ...." Id. It was also not tied to the building on the side where the

plaintiff was working. Id. One day the plaintiff was working on the roof. Id.

A.2d at 939. He recalled stepping"off the roof to begin his descent to the ground, that

he fell to the ground, and that he woke up on the ground having suffered serious

injury." Id. The evidence showed that he had fallen from the staging. Id. However, he

could not remember how he fell or "whether his fall was connected in any way to the

absence of a ladder, platform, or railing on the staging/" which were the facts.

establishing the defendant's breach of duty. Id. The trial court granted the defendant

summary judgment because there was "no independent evidence that the failure to

complete the staging was negligent or that the failure to complete the staging was a

direct and proximate cause of [the] plaintiff's injuries." Addy v. Jenkins, 2007 Me. Super.

LEXIS 132/ * 16 (June 25/2007).

On appeal, the Law Court affirmed. The Court found that the plaintiff had

"failed to establish a connection between any defect in the staging and the injury he

suffered." 2009 ME 46/

where he fell, rather than how he fell." Id. (emphasis in original). The Court stated that

//[t]he mere possibility of such causation is not enough, and when the matter remains

one of pure speculation or conjecture, or even if the possibilities are evenly balanced, a

defendant is entitled to a judgment." Id. 1[ 12/ 969 A.2d at 939 (quoting Houde v. Millett,

2001 ME 183/ 1[ 11/ 787 A.2d 757/ 759) (quotations omitted). On the facts presented, the

Court held that //[a]ny finding that [the plaintiff's] fall was caused by a defect in the

staging would be based on speculation or conjechlre." Id. 1[ IS, 969 A.2d at 940.

Mr. Emmons distinguishes his case from Addy by stressing that he remembers

how he fell. In Addy, the plaintiff alleged that the missing elements of the scaffolding

5 caused him to fall, but he could not offer any evidence. That plaintiff did not allege that

the scaffolding failed to prevent a fall caused by some other factor, and other forms of

fall protection were not mentioned. This case presents a scenario with a complete lack of

fall protection, including but not limited to scaffolding. Where Addy involved a claim

that defective scaffolding caused the plaintiff to fall, Mr. Emmons's claim is that he

slipped and there was nothing to arrest his fall.

Mr. Emmons knows that his fall was caused by a slip on the roof. The purpose of

a fall-protection device is to prevent such slips from resulting in complete falls that can

result in catastrophic injury. Here there were no such safety devices. Mr. Emmons

slipped on the roof, fell to the ground, and suffered such catastrophic injuries.

Assuming that the defendants owed him a duty, and assuming that the failure to

provide fall protection breached that duty, it is reasonable to infer that the lack of fall

protection was a substantial factor in bringing about Mr. Emmons's injury where his

injury is exactly the sort that fall protection is designed to prevent. He has made his

prima facie showing of proximate causation between the lack of safety equipment and

his injury.

2. Jornat, LLC's Motion for Summary Judgment

Jornat rightly contends that it had no legal connection to the events of April 14,

2008. Jornat did not own the property, contract with Hometown Builders, or contract

with Mr. Emmons. (Jornat Supp. S.M.F. lJ[lJ[ 4, 6-7.) There is no evidence that Jornat had

any role in any aspect of the Sanborns home-construction project that could impose a

duty to the plaintiff. Mr. Emmons argues that there is considerable ambiguity about

who was responsible for the project, and that it could have been Jornat. He supports his

theory by arguing that the distinction between Jornat's business and Mr. Sanborn's

business is not dear. In his opposition motion, Mr. Emmons cites a portion of Mr.

6 Sanborn's testimony in which he expresses some confusion about whether certain tools

and equipment are owned by Jornat or by Mr. Sanborn personally.

There is no indication that Mr. Sanborn was acting as Jornat's agent at the time of

the fall. Instead, Mr. Emmons appears to be advancing an argument for reverse veil

piercing, by which Mr. Sanborn's corporate entity may be held liable for his personal

actions. The corporate veil of an LLC can be pierced if the plaintiff establishes that: "(1)

the defendant abused the privilege of a separate corporate identity; and (2) an unjust or

inequitable result would occur if the court recognized the separate corporate existence."

Blue Star Corp. v. CKF Props., LLC, 2009 ME 101, CJI 43, 980 A.2d 1270, 1280 (citing

Advanced Constr. Corp. v. Pilecki, 2009 ME 84, CJI 10, 901 A.2d 189, 194-95; State v.

Weinschenk, 2005 ME 28, CJI 19, 868 A.2d 200, 207). "Whether the corporate form should

be disregarded involves questions of fact," and relevant factors include whether the

defendant observed the corporate formalities, whether the corporation was adequately

capitalized, the degree of control the defendant exercised over the corporate entity, and

whether the defendant or corporation is bankrupt or insolvent. Id.; Advanced Constr.

Corp., 2009 ME 84, CJI 12, 901 A.2d at 189; Weinschenk, 2005 ME 28, CJI 20, 868 A.2d at 207.

The only evidence offered to show that Mr. Sanborn abused the corporate form is

a brief verbal exchange in which he expresses uncertainty about the ownership of some

equipment, and indicates that he is paid through social security rather than through

Jornat. (Pl.'s Opp. to Jornat's Motion at 6-7.) This colloquy is not referenced in any

party's statement of material facts, so the court may disregard it. M.R. Civ. P. 56(h)(4). If

the court were to take it into account, however, it would not make a difference. The

evidence is insufficient to show abuse as a matter of law. More importantly, the plaintiff

has not shown that honoring Jornat's existence as an entity separate and apart from Mr.

Sanborn would be unjust under the circumstances. Again, there is no evidence that

7 Jornat had any involvement in the construction at 28 Brown Brook Road, or that it owed

any duty to Mr. Emmons. Jornat's motion for summary judgment is granted.

3. Hometown Builders, LLC and George Dubois's Motion for Summary Judgment

Defendants Hometown Builders, LLC, and Mr. Dubois contend that they did not

owe Mr. Emmons a duty of care because they were subcontractors who lacked control

over his work. They contend that ultimate responsibility lies with Mr. Sanborn, who

they believe was the general contractor. Mr. Emmons contends that the defendants

exercised control over him and his work, and contests their characterization of his

employment status.

The existence and scope of a duty is initially a question of law. Cameron v. Pepin,

610 A.2d 279, 282 (Me. 1992). However, a duty in tort arises from "the status

relationship between the parties." Adams v. Buffalo Forge Co., 443 A.2d 932, 938 (Me.

1982). This status relationship is in turn predicated on the facts. Dir. of Bureau of Labor

Standards v. Cormier, 527 A.2d 1297, 1301 (Me. 1987). The general rule is that "an

employer of an independent contractor is not liable for physical harm caused to another

by an act or omission of the contractor or his servant." Mudgett v. Marshall, 574 A.2d

867, 870 (Me. 1990) (citing Restatement (Second) of Torts § 409 (1965)). An independent

contractor retains control over the manner in which he performs his work, and he "is

the proper party to be charged with the responsibility of preventing the risk, and

bearing and distributing it." Restatement (Second) of Torts § 409 cmt. b (1965).

Courts consider eight factors when determining whether a party is an employee

or an independent contractor:

(1) the existence of a contract for the performance by a person of a certain piece or kind of work at a fixed price; (2) independent nature of his business or his distinct calling; (3) his employment of assistants with the right to supervise their activities;

8 (4) his obligation to furnish necessary tools, supplies, and materials; (5) his right to control the progress of the work except as to the final results; (6) the time for which the workman is employed; (7) the method of payment, whether by time or by job; (8) whether the work is part of the regular business of the employer.

Legassie v. Bangor Publishing Co., 1999 ME 180, crrcrr 6, 741 A.2d 442, 444 (citing Lewiston

Daily Sun v. Hanover Ins. Co., 407 A.2d 288, 292 (Me. 1979)). Of these, the most important

factor is the degree of control retained by the employer. Id. crrerr 6, 8, 741 A.2d at 444-45.

However, "the right to control the 'details of the performance,' present in the context of

an employment relationship, must be distinguished from the right to control the result

to be obtained, usually found in independent contractor relationships." Id. err 6, 741 A.2d

at 444 (citing Le'wiston, 407 A.2d at 292).

Apart from determining employment status, the element of control can also

create an independent duty in the employer of an independent contractor. Mudgett, 574

A.2d at 870 (citing Restatement (Second) of Torts § 414). If an employer retains or in fact

exercises supervisory control over the day-to-day "manner," "methods," or "operative

detail" of the contractor's work, the employer must exercise that control with

reasonable care. Restatement (Second) of Torts § 414 cmt. c (1965); see Mudgett, 574 A.2d

at 870. Where the employer's supervision renders the contractor "not entirely free to do

the work in his own way," the justification for imposing ultimate responsibility on the

contractor is destroyed. Id.; see Restatement (Second) of Torts § 409 cmt. b (1965). A

mere" general right to order the work stopped or resumed, to inspect its progress or to

receive reports, to make suggestions or recommendations which need not necessarily be

followed, or to prescribe alterations and deviations," will not create a duty.

The degree of the defendants' control over Mr. Emmons remains a disputed fact.

(Sanborn Add'l S.M.F. crrcrr 8-9; Emmons Add'l S.M.F. crrcrr 2, 25.) There is conflicting

testimony regarding Mr. Emmons's employment arrangements and his interaction with

9 the defendants, and no written contract governing his relationship with the other

parties is in evidence. It is impossible to determine from the record whether Mr.

Emmons was an independent contractor or Hometown Builders' employee, or whether

Mr. Dubois exercised operative control over him. The court cannot determine whether

these defendants owed Mr. Emmons a duty of care, and summary judgment is

inappropriate.

4. Frank Sanborn's Motion for Summary Judgment

Mr. Sanborn did not directly hire Mr. Emmons to work on the home, so any duty

he owed the plaintiff would have to arise through different means. Mr. Sanborn asserts

that he had no duty to Mr. Emmons because he was merely a homeowner who did not

exercise the degree of control required to make him liable as a general contractor. His

argument is based primarily on Hodgdon v. Jones, 538 A.2d 281 (Me. 1988). In Hodgdon, a

homeowner hired a number of contractors, including the plaintiff, to renovate his home.

Id. at 282. The homeowner also hired his brother at an hourly wage to assist the

carpenters. Id. He did not, however, hire a general contractor. Id. at 283. The plaintiff, an

electrician, was injured when he fell through the floor of a closet because of a hidden

defect. Id. at 282.

At trial the plaintiff attempted show that the homeowner had assumed the

heightened duty of a general contractor, but the court rejected his argument as a matter

of law. Id. On appeal, the Law Court upheld the trial court's decision. The Court wrote

that "initially, the trial court ... had to determine whether as a matter of law the duty of

a homeowner was that of a general contractor or if the evidence would support a

finding that either defendant had assumed the duties of a general contractor." Id. at

282-83. Where the undisputed facts showed that the homeowner was an out-of-state

resident who had never worked on the renovation, was not occupying the house during

10 the renovation, was not providing day-to-day supervision, and had not hired a general

contractor but instead entrusted the work to the independent subcontractors, the trial

"court properly found that the homeowner" as a matter of law had not assumed the

duty of a general contractor. Id. at 283. His brother was not a general contractor because

he "had no authority to supervise the work or to engage or discharge the contractors."

Id.

Mr. Sanborn contends that he, like the homeowner in Hodgdon, retained only the

general rights of an employer over independent contractors and did not assume any

liability for his contractor's negligence. See Mudgett v. Marshall, 574 A.2d 867, 870 n.4

(Me. 1990) (quoting Restatement (Second) of Torts § 414 cmt. c (1965)) (quotations

omitted) (general rights employers hold over independent contractors do not rise to the

level of control necessary to impose liability on the employer for the contractors'

actions). This argument is contradicted by the facts.

Unlike the homeowner in Hodgdon, Mr. Sanborn had participated In the

construction of his home, had been a general contractor for over fifty years, had listed

himself as the general contractor on his building permit, was on site regularly to

monitor the work being done, and retained full power to hire or fire his contractors. The

precise degree of Mr. Sanborn's involvement and control remain in dispute, so the court

cannot determine whether Mr. Sanborn assumed the duty of a general contractor as a

matter of law. However, there is substantial evidence in the record that could lead a

jury to conclude that Mr. Sanborn did retain control over his contractors' methods of

work or operative details. Such control would be accompanied by a corresponding duty

to ensure that his contractors took reasonable care to avoid causing physical injury.

Even if Mr. Sanborn did not owe a duty as an employer or general contractor he

did owe Mr. Emmons a duty as a landowner. In Hodgdon, after the Court determined

11 that the homeowner did not owe the duty of a general contractor it stated that the real

issue "was whether [he] had complied with the duty of a possessor of land to one

lawfully present on his property to use ordinary care to ensure that the premises were

reasonably safe and guard against all reasonably foreseeable dangers, in light of the

totality of the circumstances." Hodgdon, 538 A.2d at 283. In that case a jury found that

the homeowner had not breached that duty. [d. The same question has not yet been put

to a jury in this case, but the question's existence makes it clear that Mr. Sanborn owed

Mr. Emmons some duty of care. His motion for summary judgment is denied.

The en try is:

The court grants Jornat, LLC's motion for summary judgment because there is no

evidence that it was connected to the home construction project giving rise to this case.

The remaining three defendants' motions for summary judgment are denied.

DATE: _ _ ---<~<-rb-z-,+/1-=-1D_ _

ATTORNEY FOR PLAINTIFF: JAMES A. CLIFFORD, ESQ. LAW OFFICE OF JAMES CLIFFORD LLC 4 MILK STREET PORTLAND ME 04101

ATTORNEY FOR DEFENDANT FRANKLIN SANBORN: LANCE E. WALKER, ESQ. NORMAN HANSON & DETROY PO BOX 4600 PORTLAND ME 04112-4600

ATTORNEY FOR DEFENDANT JORNAT LLC: DAVID R ORDWAY, ESQ. SMITH ELLIOTT SMITH & GARMEY PO BOX 1179 SACO ME 04072

ATTORNEY FOR DEFENDANTS HOMETOWN BUILDERS LLC & GEORGE DUBOIS: THOMAS LAPRADE, ESQ. LAMBERT COFFIN PO BOX 15215 PORTLAND ME 04101-5215 12