Gee v. Team Prep, LLC

• Court: Superior Court of Maine
• Decided: June 1, 2017
• Docket: CUMcv-16-187
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-16-187 /

DANIELLE GEE,

Plaintiff

v. ORDER ON DEFENDANT'S MOTION FOR SUMMARY TEAM PREP, LLC, JUDGMENT REC'D CUMB CLERKS OF JUN 1 •1? PM4;30 Defendant

Before the court is defendant's motion for summary judgment. For the following

reasons, the motion is granted.

FACTS

In August 2011, defendant leased a portion of Camp Cedar campground to operate a

two-week soccer camp. (Supp'g. S.M.F. ~ 1.) Harry Herbert was hired by defendant as a

soccer coach. (Id., 2.) Defendant's final soccer programs were held on the morning of

August 26, 2011. (Id.! 4.) Mr. Herbert received his final pay by mid-day on August 26,

2011. (Id. ~ 6.) After he was paid, Mr. Herbert had no additional work to do for

defendant. iliL jJ 7; Opp. S.M.F. ! 7.) Mr. Herbert and two other Team Prep

counselors/coaches remained at the camp the evening of August 26, 2011 because their

flights left the next day; the remaining Team Prep counselors/coaches left by mid-day on

August 26, 2011. (Supp' g. S.M.F. !~ 5, 8.) Most of the campers left the camp by mid-

day on August 26, 2011. (Id. ,I 5.)

On the evening of August 26, 2011, at dusk, Mr. Herbert, plaintiff, and two others

rode in a golf cart. (ML !j} 9, 12.) A coach was permitted to use the carts after dark only

1 with permission of a Camp Cedar official. (Add'l. S.M.F. i 20.) Mr. Herbert intended to

take the cart on a lap around the entire camp and ultimately return the cart to the storage

area. (Supp'g. S.M.F. ~ 13; Opp. S.M.F. ~ 13.) When Mr. Herbert lost control of the

cart, plaintiff fell off and sustained injuries. (Supp'g. S.M.F. j)' 16.)

CONCLUSIONS

The Restatement (Third) of Agency provides, in part:

An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer's control. An employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.

RESTATEMENT(THIRD)OFAGENCY § 7.07(2) (2006); Canney V. Strathglass Holdi ngs,

LLC, 2017 ME 64, ~ 12, _ A.3d _; see also Cardello v. Mt. Hermon Ski Area, Inc., 372

A.2d 579,581 (Me. 1977).

Plaintiff has offered no admissible, relevant evidence that raises a genuine issue of

material fact that Mr. Herbert was acting within the scope of his employment with

defendant on the evening of August 26, 2011. Mr. Herbert and Michael Borislow, the

managing member of defendant, testified that when the games ended and pay was

received on August 26, 2011, Mr. Herbert had no further employment-related work for

defendant. (Supp'g. S.M.F. ! 7; Opp. S.M.F. ! 7.) Mr. Gee's opinions about defendant

coaches' duties during the soccer camp and about his own status on August 26, 2011 are

not relevant. Further, although Mr. Gee testified that some Team Prep staff remained to

do work winding up the camp," he did not identify Mr. Herbert as among them. (Opp.

S.M.F. ~ 5.)

2 Plaintiff 1s not qualified to testify about the work status of employees of an

organization for which she did not work. Plaintiff's impression was the coaches were on

their duty. (Opp. S.M.F. ~ 7.) When asked what the coaches were to do for defendant on

the afternoon and evening of August 26, 2011, plaintiff focused on coaches' activities

during the soccer camp. (Opp. S.M.F. ~ 7; Pl.'s Dep. 12: 11-14:9.) Although Mr.

Herbert remained on the premises of Camp Cedar, by mid-day on August 26, 2011 the

soccer games had ended and most of the campers and all but three counselors/coaches

had depaited. (Supp' g. S.M.F. i' 5, 7; Opp. S.M.F. ~! 5, 7 .) Plaintiff did not testify, as

alleged in opposition to defendant's statement of fact, that "Herbert was still working for

Team Prep at the time of her injuries." {Opp. S.M.F. ! 7 .)

Additionally, plaintiff's opposing statement is not "separate, short, and concise," as

required by the rule. M.R. Civ. P. 56(h)(2); see Knowlton v. Shaw, 791 F. Supp. 2d 220,

227 (D. Me. 2011) ("A Fractured Set of Facts"). Instead, plaintiff qualified or denied

twelve of defendant's sixteen statements of undisputed facts, in many instances by

improperly adding multiple additional facts, notwithstanding plaintiff's forty statements

of additional facts. (See,~. Opp. S.M.F. ~1 2, 3, 7 8, 10, 12.) Many of plaintiff's

additional facts are not relevant, some are inaccurate, and at least one contains

inadmissible evidence.

The entry is

Defendant's Motion for Summary Judgment is GRANTED. Judgment is entered in favor of Defe ant Team Prep, LLC and against Plaintiff Danielle Gee a Plaintiff's Complai .

Date: June 1, 2017 ncy Mills Justice, Superior

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