Dearborn v. Bolster's Rubbish Removal, LLC.

STATE OF MAINE SUPERIOR COURT
PENOBSCOT COUNTY, ss. CIVIL ACTION
DOCKET NO. '

BANSC-CV-2020-00057

)))))))))))
DONNA DEARBORN, as personal representative
of the estate of WAYNE DEARBORN,

Plaintiff, ORDER on BOLSTER'S RUBBISH
v. REMOVAL. LLC's MOTION FOR
SUMlVLARY JUDGMENT
BOLSTER'S RUBBISH REMOVAL, LLC.

Defendant.

Before the Court is Defendant Bolster's Rubbish Removal, LLC's motion for summary

judgment. The complaint was filed by Ronald Dearborn, as guardian for the now—deceased Wayne

Dearborn, who is alleged to have been injured as a result of Bolster's negligence. Donna Dearborn

has now been substituted for Ronald as representative of Wayne's estate. Bolster's seeks summary

judgment on both counts of the complaint.

I. FACTUAL BACKGROUND

The Town of Garland operated a trash transfer station on Center Road in Garland, Maine,

consisting of a ramp leading up to a dumpster. (Supp.'g S.M.F. 11 1—2; Opp. S.M.F. Illl 1—2.) Most of

the ramp was a flat, open surface resembling a parking lot, upon which town residents could park.

Dumpsters were placed against the edge of the ramp and next to a trailer also abutting the ramp.

(Supp.'g S.M.F. 1] 3; Opp. S.M.F. 11 2.) By contract with the Town, Bolster's emptied and replaced the

dumpsters, which sometimes were placed so as to leave a gap between the dumpster and trailer, and

at other times were placed flush to the trailer. (Supp.g S. M. F. 1H] 4, 6— 7, Opp. S. M. F. 111] 6, 31.) The

contract did not indicate where Bolster's was to place dumpsters or whose responsibility it was to give

safety warnings at the transfer station. (Opp. S.M.F. 1H] 32, 37—38)

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On October 20, 2018, Donna and Wayne Dearborn drove to the transfer station and parked

their car on the ramp. (Supp.'g S.M.F. 1H] 12-13; Opp.vS.M.F. 1J1} 10—11.) Ms. Dearborn sat in the car

watching Wayne unload trash into the dumpster. (Supp.'g S.M.F. 11 14; Opp. S.M.F. 11 16.) Ms.

Dearborn saw her husband step aside, facing away from the dumpster, and signal other drivers to back

up to the dumpster. (Supp.'g S.M.F. 1] 15; Opp. S.M.F. 1T 17.) At some point Ms. Dearborn lost sight

of Wayne. (suppfg S.M.F. 11 16; Opp. S.M.F. 11 18.) When she went to look for him, she found he had

fallen over four feet onto the ground in a gap between the dumpster and the trailer and had been

injured. (Supp.'g S.M.F.1{1[ 16—17; Opp. S.M.F. 1111 19, 21, 23, 25.)

II. PROCEDURAL POSTURE

A two—count complaint was filed in this action on March 31, 2020, asserting claims of general

negligence and premises liability against the Town and Bolster's. On October 18, 2022, this Court-

(Anderson, J.) granted the Town's motion for summary judgment, leaving Bolster's as the sole

defendant. On January 1, 2023, Bolster's filed this motion for summary judgment. On February 10,

2023, Ms. Dearbom filed her opposition, and on February 22, 2022, Bolster's filed its reply. Now fully
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briefed, the motion is in order for decision.

III. SUMMARY JUDGMENT STANDARD

An entry of summary judgment is appropriate when there is no genuine issue of material fact

and the moving party is entitled to a judgment as a matter of law. See Dyer 2. DOT, 2008 ME 106, 1T

14, 951 A.2d 821; we a/ro M.R. Civ. P. 56(c). "A material fact is one that can affect the outcome of the

case, and there is a genuine issue when there is sufficient evidence for a fact—finder to choose between

competing versions of the fact." Lougee Comermngl v. Cz'tzMorz'gage, Ina, 2012 ME 103, 1] 11, 48 A.3d 774

(citations omitted). At summary judgment, a court reviews the evidence in the light most favorable to

the non—moving party. See Curtir y. Pom"; 2001 ME 158, 11 6, 784 A.2d 18. "\When the defendant is the

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moving party, she must establish that there is no genuine dispute of fact and that the undisputed facts

would entitle her to judgment as a matter of law." Toto n. Know/e5, 2021 ME 51, 1] 9 261 A.3d 233. "A

plaintiff opposing summary judgment must in turn present a prima fan}: case for each challenged

element of her claim." Boz'w'n n. Somalex, Ina, 2022 ME 44, 1] 10, 279 A.3d 393.

IV. DISCUSSION

Because certain questions raised in the Court's analysis of Count I are answered by the

resolution of Count II, the Court addresses Count II first.

A. Count II —
Landowner or Occupier Liability

Count II sounds in premises liability. Bolster's argues it cannot be liable under this theory
,

because it neither owned nor controlled. the transfer station. (Def.'s Mot. Summ. J. 4.)

Whether an entity owes a duty to maintain safe premises is a question of law. Denman n. Peoples

Heritage Bank, 1998 ME 12, 1] 4, 704 A.2d 411. Maine law clearly imposes on the 1305365507" of land a duty

to use reasonable care to prevent injury to persons lawfully on the premises. See Denman, 1998 ME 12,.

1] 4, 704 A.2d 411; Hankard n. 13ml, 543 A.2d 1376, 1378 (Me. 1988); Pan/in n. Colby College; 402 A.2d

846, 849 (Me. 1979). As a result, "[t]he threshold inquiry for determining whether [an entity] may be

liable for defects in land causing injury [is] the initial determination of whether the [entity] in question

was a possessor of the land at the time of the injury." Eric/hon n. Brennan, 513 A.2d 288, 289—90 (Me.

, 1986). Possession of land is determined by occupancy and the intent to control, and "in order to

obtain summary judgment, defendants must prove that they are not possessors of the premises in

question." Han/earn], 543 A.2d at 1378; Eflc/éron, 513 A.2d at 290. The Law Court has affirmatively]

cited to the Second Restatement of Torts to define a possessor in this context, which provides:

[a] possessor of land is (a) a person who is in occupation of the land
with intent to control it or (b) a person who has been in occupation of
land with intent to control it, if no other person has subsequently
occupied it with intent to control it, or (c) a person who is entitled to
immediate occupation of the land, if no other person is in possession
under Clauses (a) and (b).
Restatement (Second) of Torts: Possessor of Land Defined § 328E (Am. L. Inst. 1965); Han/éam', 543

A.2d at 1378; Erickson, 513 A.2d at 290.

The record establishes that the Town possessed the transfer station.1 Although Bolster's

entered the property to replace dumpsters, this activity did not make it possessor of the premises. See,

e.g., Boles o. Wln'z'e, 2021 ME 49, 11] 10—11, 260 A.3d 697 (finding a landlord who preserved a right to

enter the property for "inspection and repair" not to be a possessor under premises liability). The

Court therefore must grant Bolster's motion for summary judgment as to Count II. Bolster's was not

the possessor of the premises and is not subject to premises liability.

B. Count I —

Negligence

Count I alleges that Bolster's was negligent in its placement of the dumpster. To survive a

motion for summary judgment on an action alleging negligence, a plaintif "must establish a prinmfinite

case for each of the four elements of negligence: duty, breach, causation, and damages." Boz'oz'n, 2022

ME 44, 1] 11, 279 A.3d 393 (quoting ,inn'on o. Geronx, 2008 ME 41, 1] 9, 942 A.2d 670).

1. Duty of Care

Bolster's first argues Ms. Dearborn has not established it owed Wayne a duty of care. (Def.'s

Mot. Summ. J. 4—8.) The existence of a duty of care is a question of law. Reid o. Town ofMt. Vernon,

2007 ME 125, 1] 14, 932 A.3d 539; Alexander o. Milo/yell, 2007 ME 108, 1] 14, 930 A.2d 1016. As

established above, Bolster's had no duty of care for premises liability. Neither does the record suggest

it owed Mr. Dearborn a contractual duty of care.2 This does not end the Court's inquiry. Even if no

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Bolster's undisputed statement of material facts states that the Town "owned, operated and controlled" the transfer
station. (Supp.'g S.M.F. 1] 1.) In her response, Ms. Dearborn denied that the transfer station was controlled solely by the
Town, stating that "[t]he hazard was controlled by Bolster's as well as the town," but Ms. Dearborn did not controvert
Bolster's statement that the transfer station was owned and operated by the Town. (Response to Supp.'g S.M.F. 1] 1.) Any
statement of fact not properly controverted is deemed admitted. M.R. Civ. P. 56(h) (4); Joe alto Stan/91 o. Hancock Conny
Comm'rr, 2004 ME 157, 1] 18, 864 A.2d 169.

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In her own statement of additional material facts Ms. Dearborn asserts that "There was no written policy about where
the containers should be placed, and Bolsters [sic.] is unaware of any discussions," "Bolsters [sic.] is unaware of the town

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such special dut-y applies, a defendant can still owe a general duty of care. See Boiw'n, 2022 ME 44, 1[

12, 279 A.3d 393 (citing Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 6,

cmt. f (Am. L. Inst. 2010)). A general duty of care is created wherever "a defendant is under any

obligation for the benefit of the plaintif ." Reici, 2007 ME 125, fl 15, 932 A.3d 539. "The duty of

reasonable care that applies in an action for general negligence is a 'duty to act reasonably to avoid

causing plyw'ca/ balm to others."' Boz'w'n, 2022 ME 44, fl 12, 279 A.3d 393 (emphasis in original) (quoting

Cun'z'y, 2001 ME 158, fl 6, 784 A.2d 18). It is undisputed that Bolster's had a contractual obligation to

place the dumpsters at the transfer station, and a practice of doing so. These facts establish a prima

fade case that Bolster's owed a general duty of care which Ms. Dearborn seeks to hold it liable for

breaching.

2- Breach

Bolster's next argues it breached no duty because Ms. Dearborn "failed to present any evidence

to establish that . . . the placemefit of the [dumpster] breached any standard of ears owed" (net's

Mot. Suimn. J. 8—9.) Whether an entity has breached its duty of care is a question of fact. See Estate 0f

Smith t. Cumberland Comm, 2013 ME 13, fl 17, 60 A.3d 759. That Bolster's owed a duty and an accident

occurred does not mean it breached its duty. Reta, 2007 ME 125, fl 18, 932 A.3d 539 ("The mere fact

of the happening of an accident is not evidence of negligence"). But a dispute of fact remains whether .

Bolster's placement of the dumpster breached a duty of care. The record suggests "Bolster's placed

its dumpster an unreasonable distance from a Town—owned trailer next to the unguarded edge of the

ramp, thereby creating a hazard." (Supp.'g S.M.F. 1[ 18.) Viewed in the light most favorable to Ms.

Dearborn, the Court finds that allegation raises anissue of matenal fact that it cannot resolve.

giving instructions to_ Bolsters [sic.] as to where to put the dumpster at the transfer station," and "Bolster's testified that it
was not its responsibility per the contract to gve warnings, or do [sic.] place its dumpster in a safe manner." (Opp. S.M.F.
1m 32, 37-38.) There is also no assertion that Bolster's had any contractual relationsln'p with Wayne.

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3. Causation

Bolster's argues for a separate and independent ground on which it seeks summary judgment.

It argues that the placement of the dumpster could not haveicaused the fall. (Def.'s Mot. Summ. J. 9—.

10.) The Court must address this.

"Causation is . . . a question of fact, requiring proof that there is some reasonable causal

connection demonstrated in the record between the act or omission of the defendant and the damage
.

that the plaintiff has suffered." En'az'e of Swill), 2013 ME 13, 1] 17, 6O A.3d 759. The Law Court has

held that "a negligent act . . . is a legal came of harm to such other person if the actor's conduct is a

Jubitafltz'alflcz'orin bringing about the harm." Wheeler, 1998 ME 137, llll 8—10, 714 A.2d 125 (emphasis

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in original). The record establishes a contested issue of material fact as to whether there was a causal

connection between Defendant's actions and Wayne's fall. Sometimes the dumpster was placed flush

with the trailer, with no gap between them, but at the time of Wayne's fall the dumpster was placed

so as to leave a gap between it'and the trailer. (Supp.'g S.M.F. 1117'; Opp. S.M.F. 1n} 6, 21.) The jury-

will have to decide whether the placement of the dumpster was a substantial factor in causing the fall

and whether that result was reasonably foreseeable. as well, the
(Supp.'gIS.M.F. fl 18.) On'this basis,
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Court must deny-the motion for summary judgment as to Count I.

.
V. CONCLUSION

Ms. Dearborn has established a primaficz'e case for liability on her negligence claim. Summary

judgment must therefore be Denied as to Count I. Because Bolster's cannot be held liable under a

theory of premises liability, it is entitled to summary judgment on Count II. Therefore, the Entry is:

Defendant Bolster's Rubbish Removal, LLC's motion for sumniary judgment is
DENIED AS TO COUNT I and GRANTED AS TO COUNT II. .
The clerk is directed to incorporate this order into the docket, by refErence, pursuant to M.R. Civ. P.

79(21).

Wf
Date
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7/07,?
he on. Bruce C. Mallonee
0 Ju s be, Maine Superior Court
Entered on the docket: 08/07/2023

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