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STATE OF MAINE SUPERIOR COURT
Cumberland, ss . STATE OF MAINE Cumberland, ss, Clerk's Office
KATHLEEN O'BRIEN APR 19 2016 Plaintiff RECEIVED v. Docket No. PORSC-CV- 15-144
OWEN P ICKUS and CONGRESS PLAZA, LLC
Defendants
ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
This case arises out of what the Plaintiff Kathleen O'Brien alleges to be her fall in a
pothole in the parking lot of a shopping center at 290 Congress Street, Portland, owned or
operated by Defendants Owen Pickus and Congress Plaza, LLC ["Congress Plaza"].
Defendants have filed two motions for summary judgment. One motion, filed by
Congress Plaza alone, seeks summary judgment on the basis that Congress Plaza has never
owned or operated the shopping center and thus cannot be liable for Plaintiffs claim. The
other motion, filed by both Defendants, seeks summary judgment on the ground that the
Plaintiff lacks sufficient evidence regarding the circumstances of her fall to meet her burden of
persuasion on the issue of causation, thereby entitling the Defendants to summary judgment.
Both motions are opposed. The court elects to decide the both motions without oral
argument. S ee M.R. Civ. P 7(b)(7).
Standard ef Review
Summary judgment is appropriate if, based on the parties' statements of material fact
and the cited record, there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter oflaw. M.R. Civ. P. 56(c); Dyer v. Dep't efTransp., 2008 ME 106, ~ 14,
95 1 A.2d 821. "A material fact is one that can affect the outcome of the case. A genuine issue of (
material fact exists when the [fact finder] must choose between competing versions of the
truth." Dyer, 2008 ME 106, ~ 14, 951 A.2d 821 (internal citation and quotation marks
omitted). When deciding a motion for summary judgment, the court reviews the evidence in
the light most favorable to the non-moving party. Id.
If the moving party's motion for summary judgment is properly supported, the burden
shifts to the non-moving party to respond with specific facts indicating a genuine issue for trial
in order to avoid summary judgment. M.R. Civ. P. 56(e). See Watt v. UnzFirst Corp., 2009 ME
47, ~ 2 1, 969 A.2d 897In fact , in responding to a properly supported motion for summary
judgment on a claim, "the [party asserting the claim] must establish a prima facie case for each
element of [its] cause of action." Bonin v. Crepeau, 2005 ME 59, ~ 8, 873 A.2d 346.
Analysis
This Order addresses Congress Plaza's Motion, and then the Defendants' joint Motion.
Congress Plaza's Motion
Congress Plaza's Motion represents that Congress Plaza has never owned or operated
the property at 290 Congress Street. Congress Plaza has submitted the affidavit of Owen
Pickus, indicating that he, not Congress Plaza, owned the shopping center, including the
parking lot area, as of the date on which Plaintiff claims to have been injured .
Plaintiffs opposition cites an e-mail to Plaintiffs counsel from Defendants' counsel
indicating that Congress Plaza owns the property. The court trusts that the Pickus affidavit
reflects Defendants' counsel's understanding of ownership.
Plaintiff also cites the understanding of Jessica Rice, the former employee of a laundry
in the shopping center, but Plaintiff has not established that Jessica Rice's testimony regarding
ownership would be admissible in evidence. Plaintiff has also submitted copies of leases that
indicate that Congress Plaza leased space at 290 Congress Street to others. The leases do
suggest that Congress Plaza has leased to others the 290 Congress Street property, but as
2 ( (~
Congress Plaza points out, these are not authenticated or admissible in evidence, as required for
Rule 56 material, and do not establish that Congress Plaza had any ownership interest or
maintenance responsibility in the parking lot in which Plaintiff claims to have fallen.
The court concludes that Plaintiff has not effectively countered Pickus's sworn
statement that he owned and controlled the property, including the parking lot, as of the date
at issue, and that Congress Plaza has not had any ownership interest or responsibility for the
property. Accordingly, Congress Plaza's Motion for Summary Judgment is granted.
Defendants' Joint Motion for Summary Judgment
The sole basis for Defendants' Motion is that Plaintiff cannot meet her burden to prove
that her injuries were proximately caused by Defendants' negligence. They cite her deposition
testimony to the effect that she did not see the pothole that allegedly caused her to fall, and
cannot explain the cause of the fall or explain how she fell-whether she tripped, rolled her
ankle, etc. Defendants rely on Law Court decisions in which the plaintiff has failed to prove the
causal link between the accident and any negligence on the part of the Defendant. See Durham
v. HTH Corp., 2005 ME 53, ~ ~ 10- 11,870 A.2d 577, 579; Houde v. Millett, 2001 ME 183,
~ ~ 11-12, 787 A.2d 7 57, 759-60; Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, ~ 5, 711 A.2d
842, 844. What these and similar decisions stand for is that a per sonal injury plaintiff must
prove more than the possibility that the injury was proximately caused by the defendant's
negligence; proof that the defendant's negligence was more likely than not the legal cause of
plaintiffs injury is the standard.
Assuming that the business invitee rule applies here, the owner or operator of the
parking lot owed Plaintiff and other customers the "positive duty of exercising reasonable care
in providing reasonably safe premises ... when it knows or should have known of a risk to
customers on its premises." Budzko v. One City Ctr. Assocs. Ltd. P'ship, 2001 ME 37, ~ 11 , 767
A.2d 310, 314 ( quoting Currler v. Toys 'R' Us, Inc., 680 A.2d 453, 455-56 (Me. 1996)). Proof that
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Plaintiffs fall was caused by her stepping into a pothole in the surface of the parking lot could
be sufficient to meet Plaintiffs burden of persuasion on causation.
Defendants contend that Plaintiff O'Brien cannot meet her burden because, according to
her deposition testimony, she cannot explain how her fall occurred. She testified at her
deposition that she was walking across the parking lot, watching out for cars but also watching
where she placed her feet, when she unexpectedly "went down" to her hands and knees. She
had not seen a pothole in her path. She also did not look at the pothole after she fell, because
she was in too much pain to think of doing so. She could not say at her deposition whether she
slipped, or tripped or rolled her ankle, or fell in some other manner . She also does not know
how deep the pothole was or whether it was more than a depression in the pavement.
However, Plaintiff has submitted with her opposition an affidavit from her daughter,
Lisa St. Thomas, stating t hat she saw her mother "fall to the ground and subsequently break
her ankle. While I was helping my mother stand up I saw the pothole that caused my mother
to fall." Affidavit of Lisa St. Thomas ~~2 - S. 1 All of these averments appear to be admissible in
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STATE OF MAINE SUPERIOR COURT
Cumberland, ss . STATE OF MAINE Cumberland, ss, Clerk's Office
KATHLEEN O'BRIEN APR 19 2016 Plaintiff RECEIVED v. Docket No. PORSC-CV- 15-144
OWEN P ICKUS and CONGRESS PLAZA, LLC
Defendants
ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
This case arises out of what the Plaintiff Kathleen O'Brien alleges to be her fall in a
pothole in the parking lot of a shopping center at 290 Congress Street, Portland, owned or
operated by Defendants Owen Pickus and Congress Plaza, LLC ["Congress Plaza"].
Defendants have filed two motions for summary judgment. One motion, filed by
Congress Plaza alone, seeks summary judgment on the basis that Congress Plaza has never
owned or operated the shopping center and thus cannot be liable for Plaintiffs claim. The
other motion, filed by both Defendants, seeks summary judgment on the ground that the
Plaintiff lacks sufficient evidence regarding the circumstances of her fall to meet her burden of
persuasion on the issue of causation, thereby entitling the Defendants to summary judgment.
Both motions are opposed. The court elects to decide the both motions without oral
argument. S ee M.R. Civ. P 7(b)(7).
Standard ef Review
Summary judgment is appropriate if, based on the parties' statements of material fact
and the cited record, there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter oflaw. M.R. Civ. P. 56(c); Dyer v. Dep't efTransp., 2008 ME 106, ~ 14,
95 1 A.2d 821. "A material fact is one that can affect the outcome of the case. A genuine issue of (
material fact exists when the [fact finder] must choose between competing versions of the
truth." Dyer, 2008 ME 106, ~ 14, 951 A.2d 821 (internal citation and quotation marks
omitted). When deciding a motion for summary judgment, the court reviews the evidence in
the light most favorable to the non-moving party. Id.
If the moving party's motion for summary judgment is properly supported, the burden
shifts to the non-moving party to respond with specific facts indicating a genuine issue for trial
in order to avoid summary judgment. M.R. Civ. P. 56(e). See Watt v. UnzFirst Corp., 2009 ME
47, ~ 2 1, 969 A.2d 897In fact , in responding to a properly supported motion for summary
judgment on a claim, "the [party asserting the claim] must establish a prima facie case for each
element of [its] cause of action." Bonin v. Crepeau, 2005 ME 59, ~ 8, 873 A.2d 346.
Analysis
This Order addresses Congress Plaza's Motion, and then the Defendants' joint Motion.
Congress Plaza's Motion
Congress Plaza's Motion represents that Congress Plaza has never owned or operated
the property at 290 Congress Street. Congress Plaza has submitted the affidavit of Owen
Pickus, indicating that he, not Congress Plaza, owned the shopping center, including the
parking lot area, as of the date on which Plaintiff claims to have been injured .
Plaintiffs opposition cites an e-mail to Plaintiffs counsel from Defendants' counsel
indicating that Congress Plaza owns the property. The court trusts that the Pickus affidavit
reflects Defendants' counsel's understanding of ownership.
Plaintiff also cites the understanding of Jessica Rice, the former employee of a laundry
in the shopping center, but Plaintiff has not established that Jessica Rice's testimony regarding
ownership would be admissible in evidence. Plaintiff has also submitted copies of leases that
indicate that Congress Plaza leased space at 290 Congress Street to others. The leases do
suggest that Congress Plaza has leased to others the 290 Congress Street property, but as
2 ( (~
Congress Plaza points out, these are not authenticated or admissible in evidence, as required for
Rule 56 material, and do not establish that Congress Plaza had any ownership interest or
maintenance responsibility in the parking lot in which Plaintiff claims to have fallen.
The court concludes that Plaintiff has not effectively countered Pickus's sworn
statement that he owned and controlled the property, including the parking lot, as of the date
at issue, and that Congress Plaza has not had any ownership interest or responsibility for the
property. Accordingly, Congress Plaza's Motion for Summary Judgment is granted.
Defendants' Joint Motion for Summary Judgment
The sole basis for Defendants' Motion is that Plaintiff cannot meet her burden to prove
that her injuries were proximately caused by Defendants' negligence. They cite her deposition
testimony to the effect that she did not see the pothole that allegedly caused her to fall, and
cannot explain the cause of the fall or explain how she fell-whether she tripped, rolled her
ankle, etc. Defendants rely on Law Court decisions in which the plaintiff has failed to prove the
causal link between the accident and any negligence on the part of the Defendant. See Durham
v. HTH Corp., 2005 ME 53, ~ ~ 10- 11,870 A.2d 577, 579; Houde v. Millett, 2001 ME 183,
~ ~ 11-12, 787 A.2d 7 57, 759-60; Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, ~ 5, 711 A.2d
842, 844. What these and similar decisions stand for is that a per sonal injury plaintiff must
prove more than the possibility that the injury was proximately caused by the defendant's
negligence; proof that the defendant's negligence was more likely than not the legal cause of
plaintiffs injury is the standard.
Assuming that the business invitee rule applies here, the owner or operator of the
parking lot owed Plaintiff and other customers the "positive duty of exercising reasonable care
in providing reasonably safe premises ... when it knows or should have known of a risk to
customers on its premises." Budzko v. One City Ctr. Assocs. Ltd. P'ship, 2001 ME 37, ~ 11 , 767
A.2d 310, 314 ( quoting Currler v. Toys 'R' Us, Inc., 680 A.2d 453, 455-56 (Me. 1996)). Proof that
3 (
Plaintiffs fall was caused by her stepping into a pothole in the surface of the parking lot could
be sufficient to meet Plaintiffs burden of persuasion on causation.
Defendants contend that Plaintiff O'Brien cannot meet her burden because, according to
her deposition testimony, she cannot explain how her fall occurred. She testified at her
deposition that she was walking across the parking lot, watching out for cars but also watching
where she placed her feet, when she unexpectedly "went down" to her hands and knees. She
had not seen a pothole in her path. She also did not look at the pothole after she fell, because
she was in too much pain to think of doing so. She could not say at her deposition whether she
slipped, or tripped or rolled her ankle, or fell in some other manner . She also does not know
how deep the pothole was or whether it was more than a depression in the pavement.
However, Plaintiff has submitted with her opposition an affidavit from her daughter,
Lisa St. Thomas, stating t hat she saw her mother "fall to the ground and subsequently break
her ankle. While I was helping my mother stand up I saw the pothole that caused my mother
to fall." Affidavit of Lisa St. Thomas ~~2 - S. 1 All of these averments appear to be admissible in
evidence.
In a personal injury case, evidence as to causation is not limited to the injured plaintiffs
own testimony; otherwise, there could never be any recovery for a fatal accident. Recognizing
potholes and recognizing that stepping into a pothole unexpectedly can cause a person to fall
down and suffer injury are not matters outside common knowledge and experience. Plaintiff is
not required to evidence on the precise dimension of the pothole or on the etiology or
mechanics of her fall to meet her burden on causation. Were Plaintiffs own testimony her
only evidence, it likely would be insufficient, because she cannot say of her own personal
knowledge what caused her fall. But her daughter claims under oath that her mother's fall was
I Defendants requested an extension of the discovery deadline to allow them to take the deposition of Lisa St. Thomas. In theory, they could also have requested an extension of their deadline to reply to Plaintiffs' opposition to their joint motion for the same reason, but have elected to reply.
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caused by stepping into a pothole, and the daughter claims to have looked at the pothole that
caused the fall right after the fall occurred. Plaintiffs daughter's testimony alone, if it were
credited by the factfinder, could be sufficient to show that Plaintiffs fall was more likely than
not caused by stepping into a pothole. Whether the daughter actually saw the fall and how she
can say what caused it are legitimately in contention, but her affidavit is sufficient to generate
genuine issues of material fact as to causation.
Because Defendants' motion challenges the sufficiency of Plaintiffs evidence only with
respect to the element of causation, and not with respect to the premises liability or damages
elements, Plaintiff has made a prima facie showing of causation at the summary judgment stage
sufficient to defeat the Defendants' Motion.
IT IS ORDERED AS FOLLOWS:
1. The Motion for Summary Judgment of Defendants Owen Pickus and Congress
Plaza, LLC is denied.
2. Defendant Congress Plaza, LLC's Motion for Summary Judgment is granted.
Judgment on the complaint is granted to Congress Plaza, LLC.
Pursuant to M.R. Civ. P. 79(a), the Clerk is directed to incorporate this Order by
r eference in the docket.
Dated April 15, 2016 .~
A. M. Horton, Justice