Colfer v. Central Maine Power Company

STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. CIVIL ACTION
Docket No. CV-21-171

BRUCE COLFER,

Plaintiff,

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ORDER ON DEFENDANT9S MOTION

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Vv. FOR SUMMARY JUDGMENT

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CENTRAL MAINE POWER

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COMPANY,

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Defendant.

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In this single-count action for negligence against Defendant Central
Maine Power Company (<CMP=), Plaintiff Bruce Colfer seeks to recover damages
based on injuries he suffered after falling in a CMP-owned parking lot that was
rented by Mr. Colfer9s employer, Bath Iron Works (<BIW=). CMP has moved for
summary judgment on grounds that it did not have control of the parking lot
where Mr. Colfer was injured and thus, did not owe him a duty of care. For the
reasons stated below, the court denies CMP9s motion.
Facts

During the relevant timeframe, BIW leased from CMP three parcels of
land in Bath that served as a parking lot for BIW9s employees. Def.9s S.M.F.
1-3.1 Adjacent to the parking lot was a <very important= electrical substation
and transmission line that was owned and maintained by CMP. Pl.9s S.M.F.
2,4. While the lease agreement between CMP and BIW excluded the
substation and other utility equipment from the leased premises, CMP reserved
various rights to use and access the parking lot area for its public utility
purposes, as discussed in greater detail below. See Def.9s S.M.F. 4 1; Serra Aff.

1 The court will refer to the pertinent property as <the parking lot= or <the
premises.=
{ 4, Ex.1 (hereinafter <lease agreement=). Moreover, under the lease, BIW was
tasked with maintaining and removing ice and snow from the parking lot. See
id.

On February 14, 2020, Mr. Colfer, then an employee of BIW, suffered
severe personal injuries when he slipped and fell on ice while walking across
the parking lot after his shift ended. Pl.9s S.M.F. 74 1, 18, 21; Def.9s S.M.F.
21. The section of the parking area where Mr. Colfer fell was not level and had
a grade <like a hill,= allowing water to accumulate and refreeze. Pl.9s S.M.F. J
22. Surfaces were icy on the day of the incident and had been in that condition
for at least two weeks. Pl.9s S.M.F. JJ 19-20; Def.9s S.M.F. 7 25.2

Additionally, the following undisputed facts are relevant to the resolution
of the present motion: During BIW9s tenancy, CMP entered the parking lot on
multiple occasions to access and maintain its electrical substation and
transmission lines. E.g., Pl.9s S.M.F. J§ 10-12. In 2020, CMP planned to
upgrade the substation. Def.9s S.M.F. { 12. For this upgrade, CMP intended to
place a trailer and <all the supplies and equipment that9s used to operate the
substation= in the parking lot. Def.9s S.M.F. 4 13. It also planned to close the
parking lot, post signage <saying ... do not enter,= and erect fencing around the
parking lot so that only its own <crews could go in through.= Def.9s S.M.F. | 7,
14. CMP provided advance notice of the date of the parking lot closure to BIW
and its employees, as it had done on a separate occasion when CMP needed to
close the parking lot. Def.9s S.M.F. q 7; Pl.9s S.M.F. 7 15.

On February 4, 2020, two agents of CMP visited the parking lot to
evaluate potential obstacles and safety hazards associated with the upcoming
construction project. Pl.9s S.M.F. J 13; Def.9s S.M.F. [f 16- 17. On February
19, 2020, four CMP agents returned to the premises to observe both the
substation and the adjacent neighborhood, and to evaluate their <outreach
needs= in advance of the construction and parking lot closure that would occur

2 The precise location where Mr. Colfer fell is not clear based on the
summary judgment record.
later in the year. Def.9s S.M.F. ¥ 20; Pl.9s S.M.F. J 14. In addition to these
visits, <a whole bunch= of other CMP personnel likely would have been on the
premises in February of 2020, including project managers, surveyors, and site
engineers, because there was a lot of planning and <preliminary type work=
occurring at that time. Pl.9s S.M.F. § 16. Moreover, sometime later, CMP
installed a tractor trailer on the premises to use <as a mobile office for [CMP's
crews] to work out of.= Pl.9s S.M.F. q 31.

Standard of Review

<A summary judgment is appropriate when the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits,
if any, referred to in the statements [of material fact] show that there is no
genuine issue as to any material fact set forth in those statements and that any
party is entitled to a judgment as a matter of law.= Platz Assocs. v. Finley, 2009
ME 55, § 10, 973 A.2d 743 (quoting M.R. Civ. P. 56(c)). In assessing whether
this standard has been met, the court must view the facts in the light most
favorable to the non-moving party. Lightfoot v. Sch. Admin. Dist. No. 35, 2003
ME 24, 7 6, 816 A.2d 63. Moreover, <{a] genuine issue of material fact exists
when the evidence requires a fact-finder to choose between competing versions
of the truth.= Platz, 2009 ME 55, ¢ 10, 973 A.2d 743. <An issue of fact is
material if it 8could potentially affect the outcome of the suit.= Id.

Discussion
CMP asserts it is entitled to summary judgment because the record
reveals that it did not have control of the parking lot where Mr. Colfer was
injured; rather, exclusive possession and control belonged to its tenant, BIW.
CMP argues that without such control, Mr. Colfer cannot establish that CMP
owed him a duty of care4a requisite element of negligence. Bell v. Dawson,
2013 ME 108, § 17, 82 A.3d 827 (<8A cause of action for negligence has four
elements: (1) a duty of care owed to the plaintiff; (2) a breach of that duty; (3)
an injury; and (4) causation, that is, a finding that the breach of the duty of
care was a cause of the injury.=).
<Under Maine law a possessor of land owes a duty to use reasonable care
to all persons lawfully on the premises.= Erickson v. Brennan, 513 A.2d 288,
289 (Me. 1986). However, a <landlord is generally not liable for a dangerous
condition that comes into being after the lessee takes exclusive possession and
control of the premises.= Stewart v. Aldrich, 2002 ME 16, 4 10, 788 A.2d 603.
This rule applies to injuries sustained by a tenant9s guest or others on the
premises with the tenant's consent. Boles v. White, 2021 ME 49, 4 7, 260 A.3d
69.

Nevertheless, a landlord may be found liable for injuries sustained on
land over which the landlord is deemed to have <control.= Nichols v. Marsden,
483 A.2d 341, 343 (Me. 1984).3 <The absence of control by the landlord is an
essential element that the landlord must establish= in order to be shielded from
liability. Chiu v. City of Portland, 2002 ME 8, { 12, 788 A.2d 183.

The Law Court has defined <control= to <8mean|[] a power over the
premises that the landlord reserves pursuant to the terms of the lease or the
tenancy, whether express or implied, and does not include the incidental
control that comes from being able to threaten tenants with nonrenewal of a
lease or with eviction.= Boles, 2021 ME 49, 7 8, 260 A.3d 697. <If landlords
retain control over common areas in the rental property, they can consequently
be held liable for dangerous conditions in those areas.= Stewart, 2002 ME 16, 4
13, 788 A.2d 603. Moreover, <landlords may retain control over non-common
areas when they reserve certain rights or responsibilities over the premises by
the terms of the lease or tenancy.= Id.

3 There are various additional exceptions to the general rule of landlord
nonliability that do not appear to be at issue for purposes of this motion. Under
those exceptions, liability may attach when the landlord <8(a) fails to disclose
the existence of a latent defect which he knows or should have known existed
but which is not known to the tenant nor discoverable by him in the exercise of
reasonable care; (b) gratuitously undertakes to make repairs and does so
negligently; or (c) expressly agrees to maintain the premises in good repair.=
Boles, 2021 ME 49, § 7, 260 A.3d 697.
Retention of control is a question of fact to be determined in the light of
all the significant circumstances. Chiu, 2002 ME 8, J 12, 788 A.2d 183;
Rodrigue v. Rodrigue, 1997 ME 99, § 11, 694 A.2d 924. However, control is
best ascertained by the intent of the parties as expressed in the lease. See
Boles, 2021 ME 49, J 7-8, 260 A.3d 697. And <unambiguous contract
language must be interpreted according to its plain meaning,= which presents a
question of law. Id. | 7.

Here, for CMP to be entitled to summary judgment, it must demonstrate
that it did not have any control over the parking lot area where Mr. Colfer was
injured. Chiu, 2002 ME 8, 7 13, 788 A.2d 183. The court finds there is a
genuine issue of material fact regarding that issue. The court9s analysis begins
with the terms of the lease agreement entered by BIW and CMP. Under the
lease, CMP agreed to lease to BIW three parcels of land adjacent to Castine
street in Bath, excluding from the leased premises <Landlord9s transmission
sections 55 and 58 consisting of poles, wires, guy anchors, and any other
personal property relating to its business as a utility.= Lease Agreement at p. 1.

Nevertheless, the uses to which BIW could put the property4and BIW9s
right under the lease4were expressly limited and subject to CMP9s use of the
land for public utility purposes. Specifically, Section Seven of the lease stated:
<Tenant9s use of the Premises shall be limited to passenger vehicle parking for
its employees and guests only. Such use and lease rights conveyed hereunder
shall at all times be subject to and conditioned upon Landlord9s continued use of
the Premises for public utility purposes, including the right to keep maintain,
modify, relocate replace [sic] its existing transmission lines, poles and
facilities.= Id. at p. 3 (emphasis added).

To that end, the lease further:

e <Reserve[d] to [CMP] and its employees, agents, contractors, successors
and assigns, the nonexclusive right in common with Tenant to pass and
repass in suitable and mutually convenient locations along and across
the Premises to provide the Landlord, its employees, agents, contractors,
successors and assigns access as it deems reasonable necessary to
maintain, increase and improve its use of the Premises in its capacity as
an electric utility=, id. at p. 6;
e Afforded CMP the <right to enter upon the Premises at all times during
the term of the Lease to examine and inspect the Premises= without
notice, id; and
e Allowed CMP to require BIW to clear the parking lot and surrender the
premises upon 48-hours9 notice so CMP could perform necessary
maintenance, repairs, and improvements to its electric transmission and
substation equipment. Id.*
Given CMP9s retention of a right to use the premises for public utility
purposes4which apparently was superior to BIW9s lease rights4along with the
other rights CMP reserved under the lease, the court concludes that the lease
is ambiguous on the issue of control and does not clearly confer exclusive
control to one party or the other. The court9s conclusion is unchanged by
Section Six of the lease, which describes BIW and CMP9s maintenance
obligations:

Tenant shall, throughout the Term of this Lease, at its sole cost
and expense, maintain the parking area within the Premises in
good condition and repair, safe, clean and free of refuse,
obstructions, ice and snow... . Landlord shall not be required to
maintain the Premises, or to furnish any services, or to make any
improvements, repairs or alterations in or to the Premises during
the Term of this Lease; except in the event that such maintenance,
improvements, repairs or alterations are necessitated by Landlord9s
actions or negligence. _

Id. at p. 3.

While BIW had an obligation to maintain the parking lot and keep it free
of ice and snow, Section Six contemplated that CMP would maintain the
premises when such maintenance was necessitated by CMP9s <actions= 4a
term left undefined. Moreover, based on the reservations of power elsewhere in

* Additionally, to the extent the slope of the parking lot is an issue in this
case, see Pl.9s $.M.F. J 22, the court further observes that CMP reserved the
right to approve or veto any excavation work that could affect vertical clearance
between CMP9s transmission lines. Lease Agreement at p. 17.
the lease, the court is unconvinced that Section Six establishes a definitive
intent that BIW assume exclusive control over the parking lot. As one court
observed, provisions of this sort are not necessarily determinative of control
and are <ambiguous because they could be interpreted as implicating an
intention of the landlord to relinquish entirely control of the [premises], or, on
the contrary, the lease terms may indicate an intention by the landlord to
retain control of these areas but to delegate to the tenants the responsibility for
removing snow and ice.= Evans v. United Bank of Ill., N.A., 589 N.E.2d 933, 937
(Ill. App. 1992). .
Moreover, contrary to CMP9s suggestions, the court does not find Boles v.
White <directly on point= such that Boles controls the outcome of this case.
2021 ME 49, 260 A.3d 697. In Boles, the plaintiff was injured at a family
member9s rental home while descending an interior staircase that did not
comply with applicable building code. Id. J] 3, 10. The trial court entered
summary judgment in favor of the defendant landlord, concluding inter alia
that the tenants were in exclusive control of the premises, and the landlord did
not owe the plaintiff a duty of care. Id. | 4.

On appeal, the plaintiff argued that the trial court erred in concluding
that the premises was under the exclusive control of the tenant because the
landlord had reserved the right to access the premises <for purposes of repair
and inspection.= Id. | 8. The Law Court narrowly framed the issue to be
decided as follows: <[W]hether, as a matter of law, the reservation of access in .
. . the lease for purposes of 8inspection and repair,9 without more, creates a
genuine dispute as to whether the [tenants] had exclusive control over the
premises, including the interior staircase.= Id. J 10. It went on to conclude that
no such dispute was generated.

In reaching its decision, the Law Court observed that the <general
reservation of access for purposes of repair and inspection [wa]s distinct from
the landlords9 degree of control disputed= in prior decisions where the court
had found landlords to be subject to liability. Id. <In those cases, there was at
least some evidence of shared control in each case between the landlord and
tenants4those landlords had actually exercised some form of control, whether
reserved or not, over the portion of the premises at issue during the tenancy.=
Id. Thus, <[g]iven the 8bedrock principle9 that a lease 8is equivalent toa
conveyance for almost all purposes,9 and in the absence of evidence showing
that the [landlord] had, in fact, retained or exercised any degree of control over
any portion of the premises after renting it to the [tenants],= the Law Court
concluded that the tenants had exclusive control of the premises. Id. | 12
(citation omitted).

This case is distinguishable from Boles in a number of ways. First, under
the present lease agreement, CMP reserved rights to the premises beyond the
mere reservation of access for purposes of repair and inspection4not least, a
right to use the premises for public utility purposes that was superior to the
<lease rights= of BIW. Second, unlike Boles, the summary judgment record in
this case contains some evidence that CMP <actually exercised some form of
control, ... over the portion of the premises at issue during the tenancy.= Id. §
10. There are numerous examples of CMP exercising the rights it reserved
under the lease as well as accessing and using the parking lot for its own
purposes after the property had been leased to BIW. For instance, there is
evidence that:

e CMP initiated the process of closing the parking lot to facilitate certain
construction projects and upgrades to its substation, Def.9s S.M.F. | 7,
12-14;
e On February 4 and 19, 2020, CMP agents entered the premises to
evaluate potential obstacles, safety hazards, and outreach needs
associated with its upcoming upgrades; Pl.9s S.M.F. J] 13-14, Def.9s
S.M.F. 9 16- 17, 20;
e Throughout February 2020, project managers, surveyors, and site
engineers visited the premises as they needed to conduct planning and
other <preliminary type work=, Pl.9s S.M.F. 9 16; and
e CMP installed a tractor trailer on the premises to use as a mobile office
for CMP crews. Pl.9s S.M.F. J 31.
On this record, the court finds that genuine issues of material fact exist
as to whether CMP retained some control over the parking lot.

The entry is: CMP9s motion for summary judgment is denied.

The Clerk shall enter this Order upon the doc reference.

Dated: May 24, 2023 |
Deborah P. Cashman
Justice, Maine Superior Court

Entered on the docket Lo/Zi- 12.3