Fortin v. Three Forty Associates, LLC

• Court: Superior Court of Maine
• Decided: June 1, 2015
• Docket: CUMcv-14-49
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION Docket No. CV-14-49

JOHN R. FORTIN,

Plaintiff

v. ORDER ON MOTION FOR SUMMARY NEPTUNE PROPERTIES, INC. JUDGMENT

~.C:.~Ofb and THREE FORTY ASSOCIATES, LLC,

Defendants JUN 01 2015

RECEIVED Before the court is the defendants' motion for summary judgment on both

counts of plaintiff's complaint. Plaintiff fell on snow and ice on the sidewalk

abutting defendants' property· at 340 Cumberland Avenue in Portland and.

sustained injuries. He alleges that defendants negligently failed to maintain the

sidewalk abutting their property (count I) and negligently failed to comply with

Portland's snow removal ordinance (count II). For the following reasons,

defendants' motion is granted.

FACTS

The following facts are presented in a light most favorable to plaintiff as

the non-moving party. Defendant Three Forty Associates, LLC owns the

property at 340 Cumberland Avenue. (Pl.'s Add. S.M.F.

loading door that faces the south side of the street. (Pl.'s Add. S.M.F. 1 2.) There

is a cut in the curb that creates a drop or slope in the sidewalk in front of the

loading door. (Pl.'s Add. S.M.F.

tripped and fell on the curb cut and suffered injuries. (Def.'s Supp. S.M.F. ~ 1;

Pl.'s Add. S.M.F. ~ 5.) On the day of Fortin's fall, the sidewalks were covered

with frozen snow and ice. (Def.'s Supp. S.M.F. ~ 7.) The area where plaintiff fell

had not been treated, salted, sanded, plowed or shoveled. (Def.'sSupp. S.M.F. ~

8.) Fortin was unable to distinguish the curb cut area from the rest of the

sidewalk because it was covered with snow and ice. (Pl.'s Add. S.M.F. ~ 6.)

DISCUSSION

1. Standard of Review

"Summary judgment is appropriate if the record reflects that there is no

genuine issue of material fact and the movant is entitled to judgment as a matter

of law." Dussault v. RRE Coach Lantern Holdings, LLC 2014 ME 8,

(quoting F.R. Carroll, Inc. v. TD Bank, N.A., 2010 ME 115,

material fact is one that can affect the outcome of the case, and there is a genuine

issue when there is sufficient evidence for a fact-finder to choose between

competing versions of the fact." Mcilroy v. Gibson's Apple Orchard, 2012 ME 59,

7, 43 A.3d 948 (quoting N. E. Ins. Co. v. Young, 2011 ME 89,

"To survive a defendant's motion for a summary judgment the plaintiff must

establish a prima facie case for each element of her cause of action." Lougee

Conservancy v. CitiMortgage, Inc., 2012 ME 103,

Crepeau, 2005 ME 59,

2. Possessor of the Sidewalk

Plaintiff argues that there is an issue of material fact as to whether

defendants possessed the sidewalk where plaintiff fell. "Under Maine law a

possessor of land owes a duty to use reasonable care to all persons lawfully on

2 the premises." Quadrino v. Bar Harbor Banking & Trust Co., 588 A.2d 303, 304 (Me.

1991). "A possessor of land is one who, by occupancy, manifests an intent to

control the land." Id. at 305. Plaintiff does not allege that the defendants own the

sidewalk where his fall occurred, but he argues that because the defendants

"derive a benefit from the curb cut across the abutting sidewalk" a fact-finder

could conclude that defendants possess the sidewalk. (Pl.'s Opp. Mem. at 3.)1

In Denman v. Peoples Heritage Bank, the plaintiff argued that, because

defendants maintained the sidewalk abutting their property, there was an issue

of fact as to whether they "possessed" the sidewalk for tort liability purposes.

1998 ME 12, err 5, 704 A.2d 411. The court acknowledged that a city ordinance

required defendants to remove snow on the sidewalk abutting their property. Id.

err 6. Nevertheless, the court held that "the public duty imposed on defendants by

municipal ordinance does not give rise to a duty enforceable by plaintiff." Id. err 7.

Plaintiff's attempt to distinguish Denman on the grounds that a "curb cut"

benefits defendants' property in this case is unconvincing. Arguably, businesses

that abut public sidewalks always derive some benefit from those sidewalks,

regardless of whether there is a curb cut that allows for deliveries. More

importantly, however, there are no other facts in this case beyond the curb cut to

demonstrate that defendants manifested any intent to control the sidewalk where

the fall occurred. If maintaining a sidewalk pursuant to a city ordinance is

insufficient to generate an issue of fact on possession, then certainly the mere

existence of a curb cut in a sidewalk is also insufficient.

1 Plaintiff's sur-reply memo is not allowed under the Maine Rules of Civil Procedure and will not be considered by the court. See M.R. Civ. P. 7, 56.

3 In Pelletier v. Fort Kent Golf Club, the case plaintiff relies on, the defendant

golf club was inviting its guests to use the property in question and had even

developed a specific rule for golfers using that area of the course. 662 A.2d 220,

222 (Me. 1995). The club manifested its intent to possess the land by inviting

golfers to use that area while golfing. Id. In this case, however, plaintiff cannot

point to any action by the defendants that demonstrates their intent to control the

sidewalk. Given the Law Court's reluctance to expand liability for accidents

caused by snow and ice, the court will not impose a duty on an abutting property

owner based solely on the existence of a curb cut in a sidewalk. See Alexander v.

Mitchell, 2007 ME 108, <[ 18, 930 A.2d 1016 ("Because the volume and frequency

of snowfall in Maine is so pervasive, the common law in this state has not

assigned open-ended responsibility for snow-related accidents.").

Because plaintiff has failed to demonstrate that defendants owed him any

duty of care, defendants are entitled to summary judgment on both counts of the . 2 comp 1amt.

The entry is:

Defendants' motion for summary judgment is GRANTED.

Date: June 1, 2015 ~Wheeler Active Retired Justice, Superior Court

Plaintiff-William Vickerson Esq Defendant-Joy McNaughton Esq

2 The basis for negligence in count II of plaintiff's complaint, failure to comply with a city ordinance, was explicitly rejected in Denman as explained above. Denman, 1998 ME 12, <[ 7, 704 A.2d 411. Summary judgment is therefore appropriate on count II.