STATE OF MAINE CUMBERLAND,SS. t Bm ~. -... *. i eFM,h=
. , ACTION^^' SUPERIOR COURT CIVIL C ~ t ~ i : ' . r t , i ~::,: !'.''?rk's O~&DOCKET R &,-(;um NO: CV 5-67 - :; . vu r , ,.;*fi ULL, I [{ &Cj JOSEPH SOLEY,
Plaintiff RECEIVED ORDER ON DEFENDANT'S AND PLAINTIFF'S MOTIONS FOR SUMMARY JUDGMENT
INTERNATIONAL BUSINESS GROUP, d / b / a DIGGERS DONALD L. GARBRECHT LAW Ll BRARY Defendant JAN 1 7 2007
T h s matter comes before the Court on Defendant International Business
Group's motion for summary judgment on all counts of the complaint, and
Plaintiff Joseph Soley's motion for summary judgment on the issue of indemnity,
pursuant to M.R. Civ. P. 56(c). For the reasons stated below, both motions are
DENIED.
BACKGROUND
Plaintiff Joseph Soley ("Soley") owns commercial property on Fore Street
in Portland, Maine, whch he leases to business tenants. One of his tenants is
Defendant International Business Group, d / b / a Diggers ("IBG"), whch operates
a bar located at 446 Fore Street. Soley leased the basement, street level, and
second floors of the premises to IBG in 2001. The lease included conditions that
Soley would provide heat and air conditioning but would not alter the existing
systems, and also provided that IBG would not make "alterations or additions" the property. The lease also contains an indemnification provision, in whch IBG
agreed to indemnify Soley for damages connected with its tenancy.
After the lease term began, B G installed a freezer and ice machne in the
building's unheated basement and also installed an exhaust fan to offset heat
generated by the new machinery. Soley claims that IBG either had to put the fan
in an open window or create an opening for it. On January 26,2003, a fire
prevention sprinkler system went off at IBG, and when the sprinkler company
responded to the location, they discovered a frozen pipe near the opening for the
fan. They noted that cold air was entering the basement and advised IBG to seal
the opening to prevent more air from getting in. Soley contends that after that
incident, IBG neglected to heat the basement or block air from entering it.
The company was unable to turn the sprinkler back on because a valve on
the pipe had cracked, and its employees made several subsequent visits to the
premises to evaluate the pipe. Soley alleges that, at some point, IBG turned the
sprinkler system back on, which IBG disputes. Pipes in the basement burst on
February 19,2003, causing flooding in the business next door to Diggers,
Bintliff's Restaurant, w h c h was also a tenant of Soley's. Soley's insurer, Mt.
Hawley Insurance Company, brought a subrogation action against IBG in this
Court in 2004,' in which Soley and his corporation, Monopoly, Inc., joined as
party plaintiffs. When the matter was scheduled for trial, Soley dismissed his
claims against IBG.
Then, Soley brought this action against IBG, alleging negligence and
breach of contract, and seeking indemnification. IBG raised a number of
affirmative defenses, including failure to state a claim upon whch relief can be
That action was Docket No. CV04-352. granted. IBG now moves for summary judgment on the basis that h s lawsuit is
barred by the Sutton rule, that it was Soley's duty to maintain the premises, and
that there is no evidence of causation on IBG1spart. IBG also contends it is
impossible for Soley to be indemnified for h s own alleged negligence. Soley
filed a summary judgment motion, solely on the issue of indemnity.
DISCUSSION
1. Summarv judgment standard.
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);see also Levine v. R.B. K. Caly Corp., 2001 ME 77, 9[ 4, 770
A.2d 653,655. A genuine issue is raised "when sufficient evidence requires a
fact-finder to choose between competing versions of the truth at trial." Parrish v.
Wright, 2003 ME 90, ¶ 8, 828 A.2d 778, 781. A material fact is a fact that has "the
potential to affect the outcome of the suit." Burdzel v. Sobus, 2000 ME 84, ql6, 750
A.2d 573,575. "If material facts are disputed, the dispute must be resolved
through fact-finding." Curtis v. Porter, 2001 ME 158,1[ 7, 784 A.2d 18, 22. When
a defendant seeks summary judgment, a "plaintiff must establish a prima facie
case for each element of her cause of action." Champagne v. Mid-Maine Med. Ctr.,
1998 ME 87, T 9, 711 A.2d 842, 845. At this stage, the facts are reviewed "in the
light most favorable to the nonmoving party." Lightfoot v. Sch. Admin. Dist. No.
35,2003 ME 24, ¶ 6,816 A.2d 63/65.
2. The Negligence Claim.
A plaintiff bears the burden to establish a prima facie case for each
element of a negligence cause of action, including that a duty existed and that the
duty was breached, causing damages. Durham v. HTH Corp., 2005 ME 53,¶ 8, 870 A.2d 577, 579 (citations omitted). In particular, proximate causation is
typically "a question of fact, and a judgment as a matter of law is improper if any
reasonable view of the evidence could sustain a finding of proximate cause."
Houde v. Millett, 2001 ME 83, qI 11, 787 A.2d 757, 759.
Viewing the matter in the light most favorable to Soley, he has established
that IBG had a duty of care to reasonably maintain the premises under the lease
it signed. There is no dispute that damages occurred within the building. It is
for the fact finder to determine whether B G (or Soley) breached a duty of care
and, if so, whether that breach caused the damages. The parties also disagree as
to whether an infiltration of outside air combined with inadequate heating, or
heat transmission loss, caused the pipe to freeze and burst. Soley has alleged a
viable theory that IBG1sfailure to address the influx of air may have caused the
pipe to freeze, which resulted in it bursting and flooding the area several weeks
later. These issues are not capable of resolution on summary judgment, as there
is a legitimate dispute as to whether it was Soley's or IBG's responsibility to
ensure that the pipe did not freeze or burst, and as to what actually caused that
result. The summary judgment motion on the negligence claim is denied.
3. The Breach of Contract Claim.
Existence of a contract and any breach thereof are both factual questions.
Forrest Assocs. v. Passamaquoddy Tribe, 2000 ME 195, ¶ 9, 760 A.2d 1041, 1044. To
establish a valid, enforceable contract, both parties must agree, in the contract or
by implication, "to be bound by all its material terms," and the agreement must
be "sufficiently definite" for a court to determine its meaning and the parties'
respective responsibilities under the law. Sullivan v. Porter, 2004 ME 134, ql13,
861 A.2d 625,631. In this case, there is no doubt that the parties had a valid lease. The lease
provided that IBG was not to alter the premises. The evidence before the Court
tends to show that IBG did in fact make alterations by adding equipment to the
basement that affected the building's condition. Even if the freezer and ice
machine were not the type of additions contemplated in the lease, the heat they
generated arguably resulted in a need for improved ventilation. The fact finder
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STATE OF MAINE CUMBERLAND,SS. t Bm ~. -... *. i eFM,h=
. , ACTION^^' SUPERIOR COURT CIVIL C ~ t ~ i : ' . r t , i ~::,: !'.''?rk's O~&DOCKET R &,-(;um NO: CV 5-67 - :; . vu r , ,.;*fi ULL, I [{ &Cj JOSEPH SOLEY,
Plaintiff RECEIVED ORDER ON DEFENDANT'S AND PLAINTIFF'S MOTIONS FOR SUMMARY JUDGMENT
INTERNATIONAL BUSINESS GROUP, d / b / a DIGGERS DONALD L. GARBRECHT LAW Ll BRARY Defendant JAN 1 7 2007
T h s matter comes before the Court on Defendant International Business
Group's motion for summary judgment on all counts of the complaint, and
Plaintiff Joseph Soley's motion for summary judgment on the issue of indemnity,
pursuant to M.R. Civ. P. 56(c). For the reasons stated below, both motions are
DENIED.
BACKGROUND
Plaintiff Joseph Soley ("Soley") owns commercial property on Fore Street
in Portland, Maine, whch he leases to business tenants. One of his tenants is
Defendant International Business Group, d / b / a Diggers ("IBG"), whch operates
a bar located at 446 Fore Street. Soley leased the basement, street level, and
second floors of the premises to IBG in 2001. The lease included conditions that
Soley would provide heat and air conditioning but would not alter the existing
systems, and also provided that IBG would not make "alterations or additions" the property. The lease also contains an indemnification provision, in whch IBG
agreed to indemnify Soley for damages connected with its tenancy.
After the lease term began, B G installed a freezer and ice machne in the
building's unheated basement and also installed an exhaust fan to offset heat
generated by the new machinery. Soley claims that IBG either had to put the fan
in an open window or create an opening for it. On January 26,2003, a fire
prevention sprinkler system went off at IBG, and when the sprinkler company
responded to the location, they discovered a frozen pipe near the opening for the
fan. They noted that cold air was entering the basement and advised IBG to seal
the opening to prevent more air from getting in. Soley contends that after that
incident, IBG neglected to heat the basement or block air from entering it.
The company was unable to turn the sprinkler back on because a valve on
the pipe had cracked, and its employees made several subsequent visits to the
premises to evaluate the pipe. Soley alleges that, at some point, IBG turned the
sprinkler system back on, which IBG disputes. Pipes in the basement burst on
February 19,2003, causing flooding in the business next door to Diggers,
Bintliff's Restaurant, w h c h was also a tenant of Soley's. Soley's insurer, Mt.
Hawley Insurance Company, brought a subrogation action against IBG in this
Court in 2004,' in which Soley and his corporation, Monopoly, Inc., joined as
party plaintiffs. When the matter was scheduled for trial, Soley dismissed his
claims against IBG.
Then, Soley brought this action against IBG, alleging negligence and
breach of contract, and seeking indemnification. IBG raised a number of
affirmative defenses, including failure to state a claim upon whch relief can be
That action was Docket No. CV04-352. granted. IBG now moves for summary judgment on the basis that h s lawsuit is
barred by the Sutton rule, that it was Soley's duty to maintain the premises, and
that there is no evidence of causation on IBG1spart. IBG also contends it is
impossible for Soley to be indemnified for h s own alleged negligence. Soley
filed a summary judgment motion, solely on the issue of indemnity.
DISCUSSION
1. Summarv judgment standard.
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);see also Levine v. R.B. K. Caly Corp., 2001 ME 77, 9[ 4, 770
A.2d 653,655. A genuine issue is raised "when sufficient evidence requires a
fact-finder to choose between competing versions of the truth at trial." Parrish v.
Wright, 2003 ME 90, ¶ 8, 828 A.2d 778, 781. A material fact is a fact that has "the
potential to affect the outcome of the suit." Burdzel v. Sobus, 2000 ME 84, ql6, 750
A.2d 573,575. "If material facts are disputed, the dispute must be resolved
through fact-finding." Curtis v. Porter, 2001 ME 158,1[ 7, 784 A.2d 18, 22. When
a defendant seeks summary judgment, a "plaintiff must establish a prima facie
case for each element of her cause of action." Champagne v. Mid-Maine Med. Ctr.,
1998 ME 87, T 9, 711 A.2d 842, 845. At this stage, the facts are reviewed "in the
light most favorable to the nonmoving party." Lightfoot v. Sch. Admin. Dist. No.
35,2003 ME 24, ¶ 6,816 A.2d 63/65.
2. The Negligence Claim.
A plaintiff bears the burden to establish a prima facie case for each
element of a negligence cause of action, including that a duty existed and that the
duty was breached, causing damages. Durham v. HTH Corp., 2005 ME 53,¶ 8, 870 A.2d 577, 579 (citations omitted). In particular, proximate causation is
typically "a question of fact, and a judgment as a matter of law is improper if any
reasonable view of the evidence could sustain a finding of proximate cause."
Houde v. Millett, 2001 ME 83, qI 11, 787 A.2d 757, 759.
Viewing the matter in the light most favorable to Soley, he has established
that IBG had a duty of care to reasonably maintain the premises under the lease
it signed. There is no dispute that damages occurred within the building. It is
for the fact finder to determine whether B G (or Soley) breached a duty of care
and, if so, whether that breach caused the damages. The parties also disagree as
to whether an infiltration of outside air combined with inadequate heating, or
heat transmission loss, caused the pipe to freeze and burst. Soley has alleged a
viable theory that IBG1sfailure to address the influx of air may have caused the
pipe to freeze, which resulted in it bursting and flooding the area several weeks
later. These issues are not capable of resolution on summary judgment, as there
is a legitimate dispute as to whether it was Soley's or IBG's responsibility to
ensure that the pipe did not freeze or burst, and as to what actually caused that
result. The summary judgment motion on the negligence claim is denied.
3. The Breach of Contract Claim.
Existence of a contract and any breach thereof are both factual questions.
Forrest Assocs. v. Passamaquoddy Tribe, 2000 ME 195, ¶ 9, 760 A.2d 1041, 1044. To
establish a valid, enforceable contract, both parties must agree, in the contract or
by implication, "to be bound by all its material terms," and the agreement must
be "sufficiently definite" for a court to determine its meaning and the parties'
respective responsibilities under the law. Sullivan v. Porter, 2004 ME 134, ql13,
861 A.2d 625,631. In this case, there is no doubt that the parties had a valid lease. The lease
provided that IBG was not to alter the premises. The evidence before the Court
tends to show that IBG did in fact make alterations by adding equipment to the
basement that affected the building's condition. Even if the freezer and ice
machine were not the type of additions contemplated in the lease, the heat they
generated arguably resulted in a need for improved ventilation. The fact finder
must determine whether these changes violated the lease's prohbition on
structural changes, and the parties dispute this material point. Given h s , the
summary judgment motion on tlus count is denied.
4. The "Sutton Rule" and Indemnification.
The Law Court has adopted what is known as the "Sutton rule." See North
River Ins. Co. v. Snyder, 2002 ME 146,804 A.2d 399. Addressing a certified
question from the United States District Court for the District of Maine, the Law
Court stated that a residential tenant could not be liable to a landlord's insurer in
subrogation for property damage paid for by the insurer without language to
that effect in the lease. Id. ¶ 1,804 A.2d at 399. T h s question arose in the context
of a fire, and the Court's position echoed that of an Oklahoma court in Sutton v.
Jondahl, 532 P.2d 478 (Okla. Ct. App. 1975)', from wluch tlus rule arose. Id.
This rule has been used in both residential and commercial lease contexts,
but some courts have recognized different considerations affecting the
applicability of Sutton, given the complexity of commercial leases and the
likelihood that commercial occupants of a leased building will have coverage. Id.
¶ 15, 804 A.2d at 403 n.7 (citing Seaco Ins. Co. v. Barbosa, 761 N.E.2d 946, 950
(Mass. 2002)). In those situations, commercial tenants may only escape liability if
The Oklahoma Supreme Court has discussed the Sutton rule but has not definitively adopted it. such an agreement is made in the lease. Id. The policy behnd the rule is
allocating risk to landlords in some situations, w h l e encouraging tenants to
obtain insurance, and it calls for a tenant to be treated as a "coinsured" unless the
agreement calls for a contrary arrangement. Id.
Here, although the Sutton analysis applies to actions brought by insurers,
IBG argues that it should also apply when a landlord like Soley is bringing the
claim, because the insurer is standing in the landlord's shoes. Soley contends
that the rule does not apply in this case because it is restricted to residential lease
agreements, but the Law Court's analysis in North River disproves that
contention3. In addition, Soley argues that the Sutton rule does not apply because
it involves subrogation, and this is a direct action against the tenant for damage
to the building, not the tenant's own rented space.
Paragraph 16 of the lease also contains a clear indemnity provision
requiring IBG to indemnify Soley for negligence connected with its tenancy,
other than gross negligence of Soley's. T h s provision explicitly includes the
bursting of pipes. Despite this clear provision, Il3G contends that Soley cannot be
held harmless for his own negligence, whch IBG claims was the proximate cause
of the flooding. This, in turn, leads the Court back to the issue of who had the
duty of care for maintenance and whose actions caused the damages. Thus,
there is at least a genuine issue of material fact as to the availability of indemnity
and the applicability of the Sutton rule in th~scase. Summary judgment,
therefore, will not be granted for either party on the issue of indemnity.
3 Although the Court did rely on the Massachusetts case to highlight the differencesbetween commercial and residential leases, the Court did not explicitly limit Suttorz to residential rentals. The entry is:
Defendant's motion for summary judgment on all counts of Plaintiffs complaint is DENIED. Plaintiff's motion for summary judgment on the issue of indemnity is DENIED.
The clerk shall incorporate &us Order into pursuant to M.R. Civ. P. 79(a).
DATE: u. 7.0 O !
J Y us ce, Superior Court F COURTS ind County lox 287 ne 041 12-0287
SIDNEY ST F THAXTER ESQ PO BOX 7 3 2 0 / PORTLAND ME 04112
F COURTS ind County lox 287 ne 041 12-0287
BRUCE HEPLER ESQ PO BOX 4 7 2 6 1
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