Rickett v. Clarkson

• Court: Superior Court of Maine
• Decided: September 19, 2007
• Docket: CUMcv-06-383
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION ~ DOCKET NO. CV -96-~83 hEC - CJJJ'f\ - 1/ Jq I~ 7 ( RICHARD RICKETT and CAROL RICKETT, Plaintiffs

v.

KALEEM S. CLARKSON, ORDER ON Defendant/Third-Party Plaintiff EUGENE WATERS' MOTION FOR v. SUMMARY JUDGMENT

EUGENE WATERS and DONAlr l GENUINE PARTS COMPANY I d/b/a NAPA AUTO PARTS, Third-Party Defendants JAN 1;) 2008

Before the Court is Third-Party Defendant Eugene Waters' Motion for SNMfIilary

Judgment on Defendant/Third-Party Plaintiff Kaleem Clarkson's Third-Party Complaint.

PROCEDURAL BACKGROUND

Plaintiff Richard Rickett ("Rickett") brought an action for negligence against

Defendant Kaleem S. Clarkson ("Clarkson") to recover for injuries he suffered due to a

vehicular collision between the two. Rickett's wife, Plaintiff Carol Rickett (jointly, the

"Plaintiffs"), has also brought a claim for loss of consortium against Clarkson. Clarkson

then filed Third-Party Complaints against Eugene Waters ("Waters") and Genuine Parts

Company d/b/a NAPA Auto Parts ("NAPA") claiming that he is entitled to judgment

against Waters and/or NAPA for any amount for which he is found liable to the Plaintiffs.

Waters now moves for summary judgment on Clarkson's Third-Party Complaint against

him, which is opposed by Clarkson. BACKGROUND

On January 7, 2003, Rickett was driving on Larrabee Road in Westbrook when

the truck in which he was driving collided with a vehicle driven by Clarkson. At the time

of the collision, Clarkson was an employee of Enterprise Rent-a-Car Company

("Enterprise"), a company located at 160 Larrabee Road, Westbrook, Maine. Clarkson

was pulling out onto Larrabee Road when the collision occurred.

Waters is, and was, the owner of land and buildings located at 160 Larrabee Road,

Westbrook, Maine, which he leased to Enterprise. In paragraph sixteen (16) of the

Commercial Lease Agreement signed between Waters and Enterprise, the parties agreed

that "[t]he removal of snow and ice from the sidewalks bordering upon the leased

premises shall be Lessor [sic] responsibility." In paragraph seven (7) of the Addendum

to the Commercial Lease Agreement, entitled "Parking Area Snow Plowing," Waters

again agreed to remove "snow from the lease premise [sic]." The lease offers this

definition of "lease premise" [sic]:

Approximately 2050 square feet of office space in building #1 located at 160 Larabee [sic] Road, Westbrook, Maine, 04092. Parking for up to 25 cars together with the right to use in common, with others entitled thereto, the hallways, stairways, and elevators, necessary for access to said leased premises, and lavatories nearest thereto.

Commercial Lease Agreement, paragraph 2.

At the time of the collision, it is undisputed that there were snowbanks along

Larrabee Road, described by Rickett, and not disputed by Clarkson or Waters, to be

approximately "eight or nine feet tall." Deposition of Richard Rickett, page 6, lines 9 ­

19. One such snowbank was apparently located next to the place where the accessway to

the leased premises meets with Larrabee Road. Clarkson contends that the location of

2 the snowbank on January 7, 2003 was included within the definition of "lease premises"

[sic] and, therefore, Waters was responsible for the removal of the snow that accumulated

as the snowbank. Waters asserts, and there is no evidence to suggest otherwise, that

neither Waters nor any of his agents actually created the snowbank or placed any snow

on the sidewalk in question.

Waters contends that the snowbank was on land owned by "the City of

Westbrook, the State of Maine or NAPA," but not on land owned or controlled by him.

Waters' Motion for Summary Judgment, page 2. NAPA owns and operates a business on

property adjacent to the leased premises. At the time of the collision, the only vehicular

access to the leased premises from a public way (namely, Larrabee Road) was over land

owned by NAPA. Clarkson contends that Waters held an easement over the NAPA

property by virtue of the fact that the only means of ingress and egress to Larrabee Road

from Waters' land (i.e., the leased premises) was over land owned by NAPA. According

to Clarkson, therefore, Waters had a duty pursuant to the Commercial Lease Agreement

with Enterprise to remove snow from the land constituting the easement and any adjacent

sidewalks, including the snowbank primarily at issue in this case.

In his Third-Party Complaint against NAPA, Clarkson asserted that NAPA also

had a duty to remove the snow from its property and that NAPA's failure to so remove

the snow or, alternatively, NAPA's affirmative act of piling snow into snowbanks along

Larrabee Road resulted in the accumulation of large snowbanks at the point of entry/exit

from the NAPA premises onto Larrabee Road.

3 STANDARD OF REVIEW

Summary judgment is proper where there exist no genuine issues of material fact

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

Arrow Fastener Co., Inc. v. Wrabacon, Inc., 2007 ME 34, 'If 15, 917 A.2d 123, 126. A

genuine issue of material fact exists "when the evidence requires a fact-finder to choose

between competing versions of the truth." Farrington's Owners' Ass 'n v. Conway Lake

Resorts, Inc., 2005 ME 93 'If 9, 878 A.2d 504, 507. An issue of fact is material if it

"could potentially affect the outcome of the suit." !d.

In response to a defendant's motion for a summary judgment, a plaintiff having

the burden of proof at trial must present evidence that, if produced at trial, would be

sufficient to resist a motion for judgment as a matter of law. Northeast Coating

Technologies, Inc. v. Vacuum Metallurgical Co., Ltd., 684 A.2d 1322, 1324 (Me. 1996).

This requires the plaintiff to establish a prima facie case for each element of the cause of

action. Id.

DISCUSSION

While Clarkson does not set forth his argument ill this manner, there are

essentially two grounds on which Clarkson could attempt to hold Waters liable in this

case: a tort action for breach of the duty of care owed by owners/possessors of land to

those on their land and an action for breach of contract related to Waters' promise to

remove snow from the leased premises and adjacent sidewalks. The Court will address

each of these claims in turn.

4 I. Tort Claim: Breach of Duty of Care

The Court first notes that there is some question as to whether or to what extent

Waters has some possessory interest in the accessway in question. While both parties

agree that Waters does not own the accessway property, neither party denies that Waters

did in fact use the accessway. For purposes of this Motion, the Court will assume,

without deciding, that Waters did in fact have a possessory interest in the accessway.

It is clear that a possessor of land owes a duty to use reasonable care to all persons

lawfully on his premises. Quadrino v. Bar Harbor Banking & Trust, 588 A.2d 303, 304

(Me. 1991); Erickson v. Brennan, 513 A.2d 288, 289 (Me. 1986). In order to determine

whether such a duty is owed, a court must first find that the defendant was, in fact, the

possessor of the land at the time of the injury. Quadrino, 588 A.2d at 305. A possessor

of land is one who "manifests an intent to control the land," but to be deemed "in

possession" does not require actual title or ownership. Denman v. Peoples Heritage

Bank, Inc., 1998 ME 12, ~ 4, 704 A.2d 411, 413, quoting Erickson, 513 A.2d at 290.

While it is established law that possessors of land owe a duty of care to those on

their land, the Law Court has recently stated that "[b]ecause 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." Alexander v. Mitchell, 2007 ME 108, ~

18, _ A.2d _ . The Alexander court examined a long line of Maine cases that makes

clear that "an individual's common law duty will extend only so far in negligence actions

related to winter weather." Id. ~ 19, _ A.2d at _ . Thus, in 1879, the Law Court held

that a railroad company had no duty to keep a sidewalk clear of snow and ice where the

plaintiff was injured after slipping and falling as he approached the station. Quimby v.

5 Boston & Me. R.R. Co., 69 Me. 340, 341-42 (1879). In 1927, the Law Court again held

that there was no duty of care owed to a plaintiff-tenant who fell on icy stairs outside an

apartment building owned by the defendant-landlord. Rosenberg v. Chapman National

Bank, 126 Me. 403, 405, 139 A. 82, 83 (1927). In Ouelette v. Miller, the Law Court held

that "at common law private individuals are not liable for injuries to others occasioned by

natural causes." Ouelette v. Miller, 134 Me. 162, 164, 183 A. 341, 342 (1936).

The Law Court confirmed the principle embodied in these earlier decisions in

Denman v. Peoples Heritage Bank, Inc., a case in which the plaintiff was injured when

she slipped and fell on snow on a public sidewalk abutting the defendant's property.

Denman v. Peoples Heritage Bank, Inc., 1998 ME 12, 704 A.2d 411. The plaintiff

argued that the defendant was responsible under a City of Portland municipal ordinance

to remove snow and ice from public sidewalks and therefore was liable to her for failing

to comply with the ordinance. Denman, 1998 ME 12, ~ 5, 704 A.2d at 413. The Law

Court, however, rejected this argument, holding that "failure to remove snow and ice in

violation of an ordinance does not create a cause of action in favor of pedestrians injured

thereby." Id. ~ 6, 704 A.2d at 413. The Law Court further held that even hiring a third

party to clear the sidewalk after storms was not sufficient to demonstrate that the

defendant had the requisite intent to control and possess the sidewalk such that the

defendant owed the plaintiff a duty of care. Id., 1998 ME 12, ~ 7, 704 A.2d at 414.

The Legislature has echoed the Law Court's sentiments regarding liability for

snow-related accidents. For example, while towns are required by statute to clear

highways of snow, the Legislature has expressly stated that towns "shall not be liable for

accidents while the road surface is covered with snow or ice." 23 M.R.S.A. § 1005-A(1).

6 Based on the case law and statutes cited above and the Law Court's recent

Alexander opinion, it is clear that a land owner/possessor's duty of care can be and is

"defined, limited, and restricted" when winter weather is involved. Alexander, 2007 ME

108, ~ 19, ~ A.2d at~. It is with this standard in mind that this Court addresses the

question of Waters' liability to Clarkson relating to the snowbank on the sidewalk that

allegedly caused the accident between Rickett and Clarkson.

The facts of the instant case are similar to those in Denman. Both involve a

plaintiff trying to hold a landowner responsible for an accident caused by snow on a

public sidewalk, not snow located on the landowner's property. In neither case did the

defendant-landowner demonstrate any intent to control the sidewalk. Nor is there any

evidence that either defendant affirmatively created the snow hazard. Indeed, in the

instant case, Waters maintains, and Clarkson produces no evidence to refute, that neither

Waters nor any of his agents created the snowbank at issue. Accordingly, this Court

adopts the ultimate holding in Denman that Waters owed Clarkson no duty of care

regarding the snow on the sidewalk abutting his property.

II. Contract Claim: Breach of Contract

Clarkson asserts that Waters is liable for the injuries caused by the presence of the

snowbank because Waters agreed to remove all snow from sidewalks in the Commercial

Lease Agreement executed between Waters and Enterprise. It is undisputed that

Clarkson is not a party to the Commercial Lease Agreement. Therefore, the only basis

for Clarkson to assert breach of a contractual duty stemming from the Commercial Lease

Agreement is as a third-party beneficiary ofthe contract.

The Restatement (Second) of Contracts states:

7 § 302 Intended and Incidental Beneficiaries

(I) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either

(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or

(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.

Restatement (Second) of Contracts § 302 (1981). "An incidental beneficiary acquires by

virtue of the promise no right against the promisor or the promisee." Restatement

(Second) of Contracts § 315 (1981). In order for a plaintiff to withstand a motion for

summary judgment and proceed as a third party beneficiary, he must generate a genuine

issue of material fact whether the parties to the contract intended that he receive an

enforceable benefit under the contract. Denman, 1998 ME 12, ~ 9, 704 A.2d at 414. It is

not enough that a plaintiff "benefited or could have benefited from the performance of the

contract. The intent must be clear and definite." Id. ~ 9,704 A.2d at 414-15.

It is clear in the instant case that Clarkson is not and never has been an intended

beneficiary of the contract between Waters and Enterprise. Indeed, Clarkson, via

counsel, admitted as much at oral argument on Waters' Motion for Summary Judgment.

As he is not an intended beneficiary, Clarkson is an incidental beneficiary and thus has no

rights to enforce the contract or seek damages for breach of the contract against either of

the parties to the Commercial Lease Agreement.

8 Finally, Clarkson made additional arguments at oral argument in support of his

opposition to Waters' Motion for Summary Judgment that the Court addresses briefly.

First, Clarkson argues that Waters can be held liable on these facts because he owed a

general duty to provide safe means of egress and ingress to all persons driving over his

property, including Clarkson. In connection with this argument, Clarkson argues that

Waters may have even had a duty to trespass onto land owned by NAPA to remove snow

in order to ensure safe ingress and egress. As Clarkson provides no support or legal basis

for these broad assertions that appear to be in conflict with the cases and attitude of the

Law Court (see Discussion, Section I supra), this Court does not address them any

further.

Clarkson's second additional argument at the hearing involves his claim that

Waters may have contributed somehow to the placement of the snow on the sidewalk at

issue. The Court notes that Clarkson could offer nothing beyond speculation in support

of this argument. On the other hand, Waters has submitted an affidavit wherein he attests

that neither he nor any of his agents created the snowbank at issue. Affidavit of Eugene

Waters, ~ 8. Waters has also presented the affidavit of Joseph Brenner, who has

contracted with Waters to plow the Larrabee Road property for the past decade, and who

also attested that he did not create the snowbank. Affidavit of Joseph Brenner, ~ 11.

Moreover, Clarkson filed his Third-Party Complaint against Waters on December 22,

2006. Thus, as of August 30, 2007, the date of the hearing on Waters' Motion, Clarkson

had over eight (8) months to conduct discovery to determine whether Waters may have

somehow been responsible for the placement of snow on the sidewalk. Based on the

9 foregoing, there is no record support for Clarkson's argument that Waters may have

placed the snow on the sidewalk.

As Clarkson has failed to establish a claim against Waters on both tort and

contract grounds, this Court holds that Waters is entitled to judgment as a matter of law.

Therefore, the entry is:

Third-Party Defendant Eugene Waters' Motion for Summary Judgment is GRANTED. Judgment for Eugene Waters on Third-Party Plaintiff Kaleem S. Clarkson's Third-Party Complaint.

The clerk shall incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a).

Dated at Portland, Maine this

R6'bert E. Crowley --­ Justice, Superior Court

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