The Norfolk & Dedham Group of Ins. Co. v. Kostovick

• Court: Superior Court of Maine
• Decided: March 11, 2009
• Docket: CUMcv-08-238
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-08-23[3;'" 'R,~ (~-- ,- ," I. Ij>. ; ;)G }7 J

THE NORFOLK & DEDHAM GR0t.1P·bP I ,~iO: 55 INSURANCE COMPANIES, AS SUBROGREE OF THE MARLBOROUGH CONDOMINIUM ASSOCIATION AND MARIA BOSTON DONALD L GARBRECHT AND . tAWUBRARY

MARLBOROUGH CONDOMINIUM ASSOCIATION, Plaintiffs ORDER ON DEFENDANTS' v. MOTIONS FOR SUMMARY JUDGMENT

AGNES KOSTOVICK, GERARD KOSTOVICK, AND REBECCA KOSTOVICK, Defendants

Before the Court is Defendant Agnes Kostovick's Motion for Partial Summary

Judgment against Plaintiff Norfolk & Dedham Group of Insurance Companies, as

subrogee of the Marlborough Condominium Association and Maria Boston. 1 Also

before the Court is Defendants Gerard Kostovick and Rebecca Kostovick's Motion for

Summary Judgment and Defendant Agnes Kostovick's Motion for Summary Judgment

against both Plaintiffs.

PROCEDURAL HISTORY

In April 2008, Plaintiff Norfolk & Dedham Group of Insurance Companies, as

subrogee of the Marlborough Condominium Association and Maria Boston (collectively

referred to as "Norfolk & Dedham") filed a four-count complaint against the three

defendants. In June 2008, the Plaintiff amended this complaint. By doing so, the

Marlborough Condominium Association ("MCA") joined the action as a party plaintiff

I This motion for partial summary judgment does not seek judgment against the Marlborough Condominium

Association. in order to seek recovery for certain losses that were not covered by the Norfolk &

Dedham insurance proceeds. Plaintiffs allege that Agnes Kostovick ("Agnes"), Gerard

Kostovick ("Gerard"), and Rebecca Kostovick ("Rebecca") were each individually

negligent and that their negligence was the direct and proximate cause of a fire that

caused damage to Unit 62 and other areas witrun the Marlborough Condominiums

located at 180 High Street in Portland, Maine. Plaintiffs also allege that the three

defendants were engaged in a joint enterprise, such that each defendant could be liable

for the negligence of the others. This case is scheduled for trial on the trial list that

begins on March 16,2009.

FACTUAL BACKGROUND The following facts are undisputed. 2 The MCA is an association of unit owners

of the Marlborough Condominiums. Maria Boston ("Maria") owned Unit 62 in the

Marlborough Condominiums and was a member of the MCA, but she did not reside in

Unit 62. As a member of the MCA, Maria was assessed a fee proportionate to her share

of the common expenses. Common expenses included insurance, but each unit owner

was required to maintain insurance on his or her individual unit. Unit owners were

permitted to lease their units.

Agnes is Maria and Gerard's mother. Gerard and Rebecca are married.

Sometime in the Fall 2006, Maria agreed and authorized Agnes to move into Unit

62. 3 Maria and Agnes never entered into a written lease for Unit 62. Maria never

advised Agnes, orally or in writing, that Agnes would be liable in subrogation for fire

2 These facts are excerpted from all summary judgment filings. 3 Agnes, Gerard, and Rebecca all agree that Agnes resided in Unit 62 from 2003 until early 2006, but that she did not reside in Unit 62 for approximately eight months in 2006. In response to Agnes' statement of material facts, Plaintiffs deny that Agnes resided in Unit 62 during this timeframe because Agnes did not produce documents supporting this fact. PIs.' Opp. to Agnes S.M.F. ~ 8. But, in response to Gerard and Rebecca's statements of fact, Plaintiffs admit that Agnes resided in Unit 62 during this timeframe. PIs.' Opp. to Gerard and Rebecca S.M.F. ~ 6.

2 damage to the apartment. Maria never advised Agnes, orally or in writing, that Agnes

needed to procure fire, liability, or property insurance for Unit 62.

On November 26, 2006, Gerard and Rebecca, along with their two minor

children, helped Agnes move some of her personal effects into Unit 62. The Defendants

all admit that there was a cloth on the stovetop in the kitchen at the time they were

helping Agnes move items into the unit. Agnes placed the towel on the stove sometime

prior to November 26,2006. The Defendants left Unit 62 at approximately 4:30 p.m.

Less than fifteen minutes later, at approximately 4:44 p.m., the Portland Police and Fire

Departments responded to the report of a fire at the Marlborough Condominiums

(hereinafter "the fire"). The responding officer observed that the cook stove/ oven was

on, with the right front burner of the stove glowing and oven displaying a temperature

of 350 degrees.

Several investigators gave their professional opinions regarding the cause of the

fire. 4 In the professional opinions of these investigators, contained within sworn

affidavits, the fire originated on top of the cook stove in the Unit 62 kitchen. The

investigators concluded that the "most likely cause" of the fire was combustibles left on

top of the cook stove.

On November 26,2006, Norfolk & Dedham insured the MCA and its members

under a policy of insurance issued to the MCA. In that policy, Norfolk & Dedham

specifically waived its rights to recover from any unit-owner. In accordance with the

4 The Plaintiffs rely on an incident report created by the Portland Police Department to bolster the opinion of the investigating officers. See Pis.' Opp. S.M.F. 'If'lf 41,54,55. However, the report is not properly before the Court. See M.R. Civ. P. 56(e) ("Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. "). Deputy Chief Will iam Flynn's affidavit states that the December 8, 2006 incident report of the Portland Fire Department is attached as "Exhibit A-2." Detective Paul Murphy's refers to this same incident report and states that it is attached as "Exhibit B-2." The incident report is not attached to either affidavit and therefore cannot be sworn to or certified as required by M.R. Civ. P. 56(e). Therefore, the Court will not consider the contents of the incident report.

3 terms of the insurance policy issued to the MCA, Norfolk & Dedham made payments to

the MCA for the damages caused by the fire.

DISCUSSION

I. Standard of Review

In a motion for summary judgment, the Court views the evidence in the light

most favorable to the nonmoving party to decide whether the parties' statements of

material facts and the referenced record material reveal a genuine issue of material fact.

Rogers v. Jackson, 2002 ME 140,

gives the party opposing summary judgment the benefit of any inferences that might

reasonably be drawn from the facts presented. Curtis v. Porter, 2001 ME 158,

A.2d 18, 22. If the record reveals no genuine issue of material fact then summary

judgment is proper. Id.

there is sufficient evidence to require a fact-finder to choose between competing

versions of the truth at trial. Lever v. Acadia Hasp. Corp., 2004 ~ 35,

1179.

II. Agnes' Motion for Partial Summary Judgmene

Agnes' first motion for partial summary judgment rests entirely on the holding

in North River Ins. Co. v. Snyder, 2002 ME 146,804 A.2d 399. Agnes argues that the

holding in Snyder precludes Norfolk & Dedham from recovering as a subrogee of MeA

or Maria because the Snyder court held that a residential tenant cannot be liable in

subrogation by a landlord's insurer, absent an express agreement. Because it is

undisputed that Maria and Agnes did not have an express agreement of this nature,

Agnes argues that summary judgment is proper. In response, Plaintiffs argue that

5 Defendants Gerard and Rebeccajoin in this motion. In short, Gerard and Rebecca argue that ifno subrogation action is allowed as to Agnes then Gerard and Rebecca cannot be held liable. However, the narrow holding of North River Ins. Co. v. Snyder, 2002 ME 146, 804 A.2d 399 does not preclude recovery against these defendants.

4 Snyder is either inapplicable because Agnes was not a tenant of either Maria or the

MeA, or alternatively, they argue that an application of Snyder on these facts would be

an expansion, and indeed a distortion, of the rationale upon which the Snyder decision

rests. In short, the issue is whether Maria and Agnes, and by extension Agnes and the

MeA, had a landlord-tenant relationship such that the Snyder anti-subrogation rule

applies.

The Snyder court carefully drafted its holding and made it clear that it only

decided the narrow issue of subrogation claims in the residential tenant context. Id. 1

16, 804 A.2d at 403. The anti-subrogation rule announced in Snyder is based on

considerations of economic waste in the procurement of insurance and the reasonable

expectations of a landlord and a tenant. 6 Id. 1115-16, 804 A.2d at 402-03. The Snyder

holding is unambiguous by its own terms:

a residential tenant may not be held liable in subrogation to the insurer of the landlord for damages paid as a result of a fire, absent an agreement to the contrary-that is, absent an express agreement in the written lease that the tenant is liable in subrogation for fire damage to the apartment complex.

Id. 11, 804 A.2d at 400.

In Maine, a written lease is not necessary to establish a tenancy-at-wil1. See 33

M.R.S. § 162. In fact, a "tenancy-at-will relationship may arise even if the parties do not

agree to the payment of rent or a landlord and tenant relation does not exist." Frost

Vacationland Properties, Inc. v. Palm~r, 1999 ME 15, 110, 723 A.2d 418,421. A tenant is

" [o]ne who holds or possesses lands or tenements by any kind of right or title." Black's

Law Dictionary 1506 (8th ed. 2004).

6 The Court did not hold that a tenant was an implied co-insured. See Snyder, 2002 ME 146 '\1'\115-16,804 A,2d at 403.

5 The relationship between Maria and Agnes, and between the MCA and Agnes by

extension, falls squarely within the Snyder anti-subrogation rule. It is undisputed that

Maria orally permitted Agnes to reside in Unit 62. Prior to the date of the fire, Agnes

paid Maria's share of the common expenses directly to the MCA. Although Agnes had

not taken possession at that time, certainly the payment of the November common

expenses demonstrates her right to possess the premises on and before the date of the

fire. There is no evidence that Agnes paid money directly to Maria for rent. However,

the money paid directly to the MCA for Maria's common expenses is sufficient for the

Court to conclude that the relationship between Agnes and Maria was more than that of

host and guest; rather, the payment of fees transformed the relationship into that of a

landlord and tenant.? Agnes and Maria did not have a written lease; therefore, they did

not have an express agreement in the written lease that Agnes would be liable in

subrogation for fire damage to the condominium building. Hence, the Snyder decision

controls.

The Snyder rationales remain relevant and germane in the context of a

condominium building, just as they did to the apartment complex in Snyder. The Court

finds no meaningful distinction between the two, despite Norfolk & Dedham's urging.

An anti-subrogation rule in the context of condominium tenants avoids economic waste

by not requiring each tenant to procure liability insurance for his or her own unit and

possibly the entire building, to guard against a subrogation action. This is so even with

the two-tired insurance scheme in the condominium context. Although by statute and

7 Plaintiffs contend in earnest that the relationship between Agnes and Maria is akin to a homeowner and houseguest. However, the weight of this argument is based on Plaintiffs' subjective belief that the payment of common expenses is inadequate for the rental ofthis condominium unit. Rent need not be the fair market value of the condominium unit; it is sufficient for the conclusion that there was a landlord-tenant relationship that Agnes paid Maria's obligation to the MeA as consideration for a right to possess the premises.

6 by the bylaws the MCA and the unit owners both must obtain insurance on the

property, the insurable interests are distinct.

This rule also fits within the general expectations of the parties. Without a

written agreement to the contrary, it was reasonable for Agnes to assume that the

money she paid to the MCA, which admittedly paid for insurance premiums, would

ultimately protect her from a subrogation action by Norfolk & Dedham.

In sum, the holding of North River Ins. Co. v. Snyder, 2002 ME 146, 804 A.2d 399 is

controlling and establishes, as a matter of law, that Plaintiff Norfolk & Dedham Group

of Insurance Companies, as subrogee of the Marlborough Condominium Association

and Maria Boston, may not recover from Agnes Kostovick the $75,262.75 it paid to the

Marlborough Condominium Association as a result of fire damage to the Marlborough

Condominiums on November 26, 2006. As such, partial summary judgment in favor of

Agnes Kostovick is appropriate.

III. Gerard and Rebecca's Motion for Summary Judgment

A. Prima Facie Case of Negligence

Gerard and Rebecca argue that the Plaintiffs have not presented sufficient

evidence to establish that they owed a duty to Maria or to the MCA, and therefore,

there could be no breach thereof. Additionally, Gerard and Rebecca argue that the

Plaintiffs failed to present sufficient evidence to allow a fact finder to infer negligence

and causation from the occurrence of the fire. In their opposition, the Plaintiffs argue

that Gerard and Rebecca had a duty to avoid creating a dangerous condition while

present in Unit 62. They breached this duty, argue the Plaintiffs, when they failed to

remove a towel that they admittedly saw on top of the electric cook top I oven in the

kitchen. The Plaintiffs then rely on sworn testimony of investigators with the Portland

7 Police and Fire Departments as evidence that the fire originated in the kitchen and that

the "most likely cause" of the fire was combustibles left on the top of the cook stove. s

The Plaintiffs must come forward with all elements of a prima facie case of

negligence against Defendants Gerard and Rebecca because these defendants attacked

all aspects of Plaintiffs' negligence claims. See Corey v. Norman, Hanson & DeTroy, 1999

ME 196, CJI 9, 742 A.2d 933,938 (holding that a plaintiff's duty to come forward with

record evidence in support of the elements of a claim arises only after the defendant has

specifically attacked the record evidence as an insufficient basis to meet an element of a

claim). A prima facie case of negligence requires a plaintiff to establish four elements:

duty, breach, causation, and damages. Mastriano v. Blyer, 2001 ME 134, CJI 11, 779 A.2d

951,954.

"The existence of a duty of care is a question of law, while issues of the breach of

a duty of care are usually questions of fact." Reid v. Town ofMt. Vernon, 2007 ME 125,

14, 932 A.2d 539,544. Duty is not a question of whether a defendant owes a general

duty, but the question is "whether the defendant is under any obligation for the benefit

of the particular plaintiff" Searles v. Trustees of St. Joseph's College, 1997 ME 128, CJI 5,695

A.2d 1206, 1209 (emphasis added). If there is a duty, that duty is "to conform to the

8 In their Reply to Plaintiffs' statement of additional material facts, Gerard and Rebecca make several objections. First, Gerard and Rebecca object to Plaintiffs' reliance on the Condominium Declarations pursuant to M.R. Civ. P. 56(e). Gerard and Rebecca's Reply S.M.F. ~~ 22, 23. However, M.R. Civ. P. 56(e) is inapplicable because the declarations are not attached to sworn affidavits. "[T]he factual basis to support or oppose a motion for summary judgment can be provided by (i) any statement under oath ...or (ii) any other document that would have evidentiary significance in a trial." MSBA Practice Series Maine Rules a/Civil Procedure 386 (Hon. Donald G. Alexander et al. eds.,2008). The evidence relied on must be admissible. The issue of whether the Condominium Declaration can be relied on can be answered by asking one question: "Would the referenced statement or evidence be admissible at trial through the individual offering the statement in the summary judgment proceeding?" Id. at 387. Because this document is not stipulated to and because the Plaintiffs do not properly authenticate it, the Court does not rely on its contents. Second, Gerard and Rebecca make another Rule 56(e) objection to the Plaintiffs' reliance on the transcript of a recorded statement of Maria Boston, taken on December I, 2006, by an insurance agent. Gerard and Rebecca's Reply S.M.F. ~~ 26,27,28; See also Ex. B. Again, however, Gerard and Rebecca's focus on M.R. Civ. P. 56(e) is misplaced because this transcript is a stand-alone document. Nonetheless, th is transcript is inadmissib Ie hearsay. See M.R. Evid. 802. It is undisputed that Maria does not have personal knowledge of the events of November 26, 2006 because she was not there. Therefore, the Court disregards this inadmissible hearsay relied on by Plaintiffs in their opposition to summary judgment.

8 legal standard of reasonable conduct in the light of the apparent risk." Reid, 2007 ME

125, , IS, 932 A.2d at 544. (quoting WILLIAM 1. PROSSER & W. PAGE KEETON,

PROSSER & KEETON ON TORTS § 53 at 359 (5th ed. 1984)). In Maine, a non-possessor

of land "who negligently creates a dangerous condition ... may be liable for reasonably

foreseeable harms." Quirion v. Geroux, 2008 ME 41, err 10, 942 A.2d 670, 673.

It is black letter law in Maine that "the mere fact of the happening of an accident

is not evidence of negligence." Reid, 2007 ME 125, err 18, 932 A.2d at 544. See also Donald

G. Alexander, Maine Jury Instruction Manual § 7-60 (2008) ("The fact that an accident

happened or an injury occurred, by itself, does not permit you to infer that the accident

or injury was caused by negligence or by anyone's fault."). Also, "[i]n order to recover

for damages in a cause of action for negligence or for any other tort, a plaintiff must

establish that there be some reasonable connection between the act or omission of the

defendant and the damage which the plaintiff has suffered." Houde v. Millett, 2001 ME

183, , 10, 787 A.2d 757, 759 (internal quotation omitted).

In Quirion v, Geroux, the plaintiff's evidence was insufficient to survive

defendant's motion for summary judgment. 2008 ME 41, , 11,942 A.2d at 673. In that

case, an awning blew off a building and injured the plaintiff. Id. That plaintiff could

not avoid summary judgment when her statements of material fact merely stated that

"the bolts securing the awning to the building were pulled from the building by a

strong wind, which caused the awning to fall and hit [her]." Id. On appeal, the Law

Court held that there was no evidence that the defendant "removed and replaced the

bolts or otherwise loosened or disturbed the bolts when he removed and replaced the

awnings." Id. Although the non-possessor of land in that case owed a duty to hotel

patrons "to not cause an unreasonably dangerous condition through his work on the

awnings," there was no evidence to generate issues of material fact that there was a

9 breach of his duty or evidence establishing the link between this breach and the

plaintiff's injuries. Id.

Clearly, the Defendants owed the MCA and Maria a duty to not cause an

unreasonably dangerous condition when they moved Agnes' possessions into Unit 62.

See Quirion v. Geroux, 2008 ME 41,

is evidence that the defendants breached that duty and if that breach was the proximate

cause of the Plaintiffs' injuries.

The record reflects that Gerard and Rebecca were moving items into Unit 62 just

before the fire. Plaintiffs have not put forward any evidence that either or both Gerard

and Rebecca placed combustible items on the stove. 9 Plaintiffs also have not put

forward any evidence to generate issues of material fact regarding how the cook stove

burner was turned on or how the oven got turned to 350 degrees on the day of the fire.

Plaintiffs statement of fact that one of the Defendants"accidentaUy" turned the stove on

before they left Unit 62 falls short of establishing the necessary link to connect Gerard

and! or Rebecca's conduct to the Plaintiffs' injuries. Therefore, the Court concludes that

the Plaintiffs failed to establish a breach of duty for its prima facie case of negligence

against Gerard and Rebecca. 1o

9 The only related evidence is that Agnes, Rebecca, and Rebecca's two daughters unpacked food from boxes in the kitchen and that Gerard placed cardboard boxes on top of a butcher block in the kitchen. 10 Even if the Court were to accept Plaintiffs' argument that Gerard and Rebecca's failure to remove the towel was a breach of duty, Plaintiffs still would be unable to establish the next element for a primafacie case: proximate causation. The placement of the towel, and the failure to remove the towel, was not the proximate cause of the fire, Agnes placed the towel on the stove prior to November 26, 2006, yet no fire occurred in Unit 62 until after the three defendants left the unit at approximately 4:30 p.m. on November 26,2006. In other words, the proximate cause of the fire was the combination of combustibles on and around the stove plus the activation of the stove. There is no evidence as to how the stove was activated, or by whom, on November 26,2006. Therefore, Plaintiffs' "evidence" that either Gerard or Rebecca activated the stove is purely speculation and fails to demonstrate a prima facie case for proximate cause. See Merriam v. Wanger, 2000 ME 159, ~ 10,757 A.2d 778,781.

10 B. Res Ipsa Loquitur

In certain cases, a plaintiff may survive summary judgment, and ultimately

judgment as a matter of law, if the case is suitable for a res ipsa loquitur jury instruction.

"Res ipsa loquitur is neither substantive law nor a theory of negligence. Rather, it is a

form of circumstantial evidence that permits a jury to infer negligence and causation

from the mere occurrence of an event." Poulin v. Aquaboggan Waterslide, 567 A.2d 925,

926 (Me. 1989). Res ipsa loquitur is applicable "where (i) there has been an unexplained

accident, (ii) the instrument that caused the injury was under the management or

control of the defendant and (iii) in the ordinary course of events, the accident would

not have happened absent negligence on the part of the defendant." Wellington Assoc.,

Inc. v. Capital Fire Protection Co., 594 A.2d 1089, 1092 (Me. 1991).11 The Court must

"review the evidence to determine whether a jury rationally could conclude by a

preponderance of the evidence that the elements of the Restatement apply." Poulin, 567

A.2d at 927.

The first requirement for the application of the res ipsa loquitur doctrine requires

the Court to consider whether a jury rationally could conclude by a preponderance of

the evidence that the fire was an unexplained accident. For example, in Lajoie v.

Bilodeau, the plaintiffs sued when they became ill after finding a rusty brush inside their

newly purchased and partially consumed ginger ale bottle. 148 Me. 359, 361,93 A.2d

719, 720 (Me. 1953). This was not a "wholly unexplained" accident; rather "it was

susceptible of proof by certain facts." Id. at 362, 93 A.2d at 720-21.

II In Poulin v. Aquaboggan Waterslide the Law Court stated that it "adopted the definition of res ipsa loquitur set forth in the Restatement (Second) of Torts § 328D." 567 A.2d at 926 (citing Ginn v. Penobscot Co., 334 A.2d 874, 880 (Me. 1975). However, subsequent decisions rely on the slightly different version of the res ipsa loquitur doctrine as quoted above and set forth in the Wellington Associates case. See e.g.. Sheltra v. Rochefort, 667 A.2d 868,870 (Me. 1995); see also 1-7 Maine Jury Instruction Manual § 7-65. Accordingly, the Court utilizes the Wellington Associates framework, rather than Restatement § 328D, for its determination of the applicability of res ipsa loquitur to Plaintiffs' claims.

11 This is not a case where the cause of the fire is wholly or even partially

unexplained. It is clear from the record that the fire in Unit 62 originated on the stove.

It is also clear from the record that there was at least one combustible item left directly

on the stove (the towel) and that there were other combustible items in the general

vicinity of the stove. The responding officer from the Portland Fire Department saw

that one of the burners was "glowing" and that the stove was turned on to 350 degrees.

No one besides Agnes, Gerard, Rebecca, and the two minor children were in Unit 62

immediately before the alarm sounded that triggered the response of the Portland Fire

Department. There is no evidence that one of the defendants did anything markedly

different than any other defendant. The only missing fact is how the stove was

activated. This activation set in motion a series of events, which ultimately caused

harm to the Plaintiffs. The activation of the stove is susceptible to proof by certain facts,

yet the Plaintiffs have failed to present any such facts. Accordingly, a jury could not

reasonably conclude that this accident was unexplained. See Lajoie, 148 Me. at 362-63, 93

A.2d at 720-21.

Because Plaintiffs cannot meet the first requirement of res ipsa loquitur, the Court

does not address the second and third requirements regarding the management or

control of the instrumentality and the determination that this is a type of accident that

would not normally occur in the absence of negligence by these defendants,

respectively. Therefore, the Plaintiffs cannot survive summary judgment by relying on

the inference provided by the res ipsa loquitur doctrine.

IV. Agnes' Second Motion for Summary Judgment

The only remaining claim against Agnes is the direct claim by the MCA for

damages not covered under the Norfolk & Dedham policy. Agnes moved for summary

judgment on this claim by adopting and incorporating Gerard and Rebecca's motion for

12 summary judgment. Although the record is more developed regarding this motion

because the parties' depositions are included, the analysis and outcome for Agnes is

same as it was for Gerard and Rebecca. Accordingly, the Court incorporates by

reference the above analysis and only briefly addresses the application of the law to the

additional evidence provided through the M.R. Civ. P. 56(h) statements of material

facts.

Agnes owed Plaintiffs a duty to exercise reasonable care during the time when

she was moving items into Unit 62. See Quirion v. Geroux, 2008 ME 41, err 10, 942 A.2d at

673. However, Agnes' admission that she placed a towel on the stove, and did not

remove it does not provide the necessary link to demonstrate that she breached this

duty or that this alleged breached proximately caused the fire. See discussion supra

Section III.

This not an unexplained occurrence. Indeed, the fire at Unit 62 is almost entirely

explainable. The fire began in the kitchen; both the stove and a burner were on when

the Portland Fire Department responded; and there were combustible items on and

around the stove. Any negligence by Agnes as to how her actions caused the stove to

turn on is ?usceptible to proof by facts. Nonetheless, Plaintiffs have presented no such

evidence. Plaintiffs cannot avoid their burden of proof by relying on res ipsa loquitur.

Accordingly, res ipsa loquitur is of no aid to Plaintiffs.

v. Joint Enterprise

Maine courts will impute negligence to co-defendants if a plaintiff can establish

that the defendants were engaged in a joint enterprise. A joint enterprise requires

"proof of a community of interest in and the joint prosecution of a common purpose

under such circumstances that each participant has authority to act for all in directing

13 and controlling the means of agency employed." Morey v. Stratton, 2000 ME 147, 17,

756 A.2d 496, 498.

Imputing negligence to others, most obviously, presumes the existence of

negligence. In this case, irrespective of any proof that there was a community of

interest with a common purpose for moving Agnes into Unit 62, the Plaintiffs failed to

present a prima facie case of negligence to the Court. See discussion supra Section III and

IV. Therefore, there is no negligence that the Court could impute to any or all of the

defendants. Therefore, the Court grants Defendants Gerard, Rebecca, and Agnes'

motions for summary judgment regarding joint enterprise liability.

Therefore, the entry is:

Defendant Agnes Kostovick's Motion for Partial Summary Judgment against Plaintiff Norfolk & Dedham Group of Insurance Companies, as subrogee of the Marlborough Condominium Association and Maria Boston is GRANTED.

Defendants Gerard Kostovick and Rebecca Kostovick's Motion for Summary Judgment against both Plaintiffs is GRANTED.

Defendant Agnes Kostovick's Motion for Summary Judgment against Plaintiff Marlborough Condominium Association is GRANTED.

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

Dated at Portland, Maine this ; / rfh.. day of ---I~~'----r-~---J

R ert E. Crowley Justice, Superior Court

14 STATE OF MAINE CUMBERLAND COUNTY SUPERIOR COURT

142 FEDERAL STREET PORTLAND, MAINE 04101

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