Grant v. Town of Freeport

• Court: Superior Court of Maine
• Decided: December 2, 2014
• Docket: CUMcv-13-324
• Status: Unpublished

Opinion

I l\J 1 ERI. D DEC 0 5 2014 (

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. CV-13-324

ERIN GRANT, MC-Cvtlll)- ~~~vtA- 14- Plaintiff ORDER V. STATE Of MAINE s Clerl<"s Off1ce cumber Ian d · S ·

TOWN OF FREEPORT, DEC 0:)--20\4 Il~ndant RECE\VED Before the court is Defendant Town of Freeport's Motion for Summary Judgment

on Plaintiff Erin Grant's Complaint pursuant to Maine Rule of Civil Procedure 56. This

case arises out of a motorcycle accident in Freeport on Flying Point Road, and Ms.

Grant's Complaint contains two counts: Count I is a negligence claim brought under the

Maine Tort Claims Act, 14 M.R.S.A. §§ 8104-A and 8116, and Count II is for liability

under the Highway Defect Statute, 23 M.R.S.A. § 3655. The court held a hearing on this

matter on November 5, 2014.

After reviewing the parties' filings, the court grants summary judgment in favor

of Defendant Town of Freeport, as it is clear that Ms. Grant cannot make a prima facie

case for either count of her Complaint and that the Defendant is entitled to judgment as a

matter oflaw. Ms. Grant's statements of material fact are insufficient and fail to comply

with Rule 56. 1 Stating that a party has not yet been deposed is not a proper response to a

1 Ms. Grant repeatedly makes or opposes statements without reference to a record citation. See M.R. Civ. P. 56(h)(2), (4). Rule 56(h)(4) provides that "The court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment. The court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts." statement of material fact, especially considering that the discovery deadline has long

passed. Nor did Ms. Grant file Rule 56(f) affidavits explaining why she is unable to

present facts to support her Opposition. In addition, a statement of material fact is not the

place for legal argument.

Ms. Grant cannot succeed on a negligence claim under 14 M.R.S.A. § 8104-A(4),

as no "construction, street cleaning or repair operations" were taking place at the accident

governmental entity is not liable for any defect, lack of repair or Iack of sufficient railing

in any highway, town way, sidewalk, parking area, causeway, bridge, airport runway or

taxiway or in any appurtenance thereto."

Furthermore, the Law Court found in Doucette v. City of Lewiston that the

liability limits statement contained in the member coverage certificate for the Maine

Municipal Association (MMA) Property & Casualty Pool preserved the City of

Lewiston's immunity. 1997 ME 167, 11 8, 10, 697 A.2d 1292. This finding is equally

applicable to this action, since the Town of Freeport was also a member ofthe MMA

pool at the time of the accident and has presented its member coverage certificate, which

contains the same language quoted in Doucette. Id As a result, it is already settled that

the Town ofFreeport has not waived its immunity because of its membership in the

MMApool.

In addition, Ms. Grant has also failed to appoint an expert witness on highway or

road design or engineering, which is problematic, since an expert witness is necessary for

her to prove that the road is defective. Ms. Grant would not be able to prevail on her 23

M.R.S.A. § 3655 claim.

2 r·

Accordingly, the court ORDERS that the Defendant's Motion for Summary

Judgment is GRANTED and judgment is entered in Defendant's favor as to Plaintiff's

Complaint against it.

The clerk is directed to incorporate this Order into the docket by reference

pursuant to Maine Rule of Civil Procedure 79(a).

~ ff!(} /(! )C Dated: Av1 v~ Hon. oland A. Cole Justice, Supenor Court

3 ERIN GRANT VS TOWN OF FREEPORT UTN:AOCSsr -2013-0065748 CASE #:PORSC-CV-2013-00324

01 0000002924 BENJAMIN, EDWARD R JR THREE CANAL PLAZA PO BOX 4630 PORTLAND ME 04112-4630 F TOWN OF FREEPORT DEF RTND 10/01/2013

02 0000009379 TUCKER, SHENANNE R ONE MERRILL DR, SUITE 6 HAMPTON NH 03842 F ERIN GRANT PL RTND 07/24/2013