Karen S. Klein v. University of Maine System

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2022 ME 17
Docket: Kno-21-56
Argued: November 3, 2021
Decided: March 15, 2022

Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
Majority: STANFILL, C.J., and MEAD, GORMAN, HUMPHREY, HORTON, and CONNORS, JJ.
Dissent: JABAR, J.

KAREN S. KLEIN

v.

UNIVERSITY OF MAINE SYSTEM et al.

GORMAN, J.

[¶1] Karen S. Klein appeals from a summary judgment entered in the

Superior Court (Knox County, Mallonee, J.) in favor of the University of Maine

System and the University of Maine (collectively, the University) on her

complaint asserting negligent maintenance and operation of a parking lot

located on the University of Maine’s Orono campus. Klein contends that the

court erred in determining that the parking lot was not an appurtenance to a

public building as that term is used in 14 M.R.S. § 8104-A(2) (2021) of the Maine

Tort Claims Act (MTCA) and, therefore, that no exception to the immunity

conferred on governmental entities by the MTCA applied. We affirm the

judgment.
2

I. BACKGROUND

[¶2] The following facts are undisputed. See McDonald v. City of Portland,

2020 ME 119, ¶ 2, 239 A.3d 662. On or about January 6, 2019, Klein drove her

vehicle to the University of Maine’s Orono campus for the purpose of

conducting business at Fogler Library. Klein was instructed by the University

to use a parking lot contiguous to Holmes Hall. Fogler Library is located across

Moosehead Road from Holmes Hall. The parking lot is used primarily by faculty

and staff working at Holmes Hall and by faculty, staff, and visitors using Fogler

Library.

[¶3] After parking her vehicle, Klein walked through the parking lot,

crossed Moosehead Road, and entered Fogler Library. A few hours later, Klein

exited Fogler Library, walked across Moosehead Road, and walked into the

parking lot, where she slipped and fell on a patch of untreated ice and sustained

injuries. No road construction, street cleaning, or repair was being performed

at the parking lot, and the University has no insurance that would cover the

incident. See 14 M.R.S. § 8116 (2021).

[¶4] After her fall, Klein filed a complaint in the Superior Court alleging

that the University was negligent in its maintenance and operation of the

parking lot. The University filed a motion for summary judgment, claiming
3

immunity from Klein’s suit pursuant to the MTCA. Klein opposed the motion,

arguing that the parking lot fell within the “public building exception” to the

MTCA’s otherwise comprehensive grant of immunity. See 14 M.R.S. §§ 8103(1),

8104-A(2) (2021). On February 5, 2021, the court entered an order granting

the University’s summary judgment motion on the grounds that the parking lot

was not an appurtenance as that term is used in section 8104-A(2) and

therefore that no exception to governmental immunity applied. Klein timely

appealed. See 14 M.R.S. § 1851 (2021); M.R. App. P. 2B(c)(1).

II. DISCUSSION

[¶5] Klein argues that the court erred by granting the University’s motion

for summary judgment based on immunity. She contends that the undisputed

facts show that the parking lot where she fell was an appurtenance to Holmes

Hall and Fogler Library and therefore falls within the “public building

exception” to immunity provided by section 8104-A(2).

[¶6] We review a grant of a motion for summary judgment de novo,

viewing the evidence in the light most favorable to the nonmoving party. See

Picher v. Roman Cath. Bishop of Portland, 2009 ME 67, ¶ 7, 974 A.2d 286. A grant

of summary judgment will be affirmed if there are no genuine issues of material

fact and the undisputed facts show that the prevailing party was entitled to a
4

judgment as a matter of law. Id. “A genuine issue of material fact exists when

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

competing versions of the truth at trial.” Id. (quotation marks omitted).

“Absent a dispute of material fact, whether or not a governmental entity is

entitled to immunity is a question of law that we review de novo.” McDonald,

2020 ME 119, ¶ 11, 239 A.3d 662.

[¶7] Our main objective in construing a statute is to give effect to the will

of the Legislature. See Est. of Stone v. Hanson, 621 A.2d 852, 853 (Me. 1993). In

determining the Legislature’s intent, we look first to the plain language of the

statute. Adoption of Patricia S., 2009 ME 76, ¶ 11, 976 A.2d 966. In considering

the plain language, however, “we must consider the entire statutory scheme in

order to achieve a harmonious result. Finally, [o]nly if the meaning of a statute

is not clear will we look beyond the words of the statute to examine other

potential indicia of the Legislature’s intent, such as the legislative history.”

A.S. v. Lincolnhealth, 2021 ME 6, ¶ 15, 246 A.3d 157 (quotation marks and

citation omitted).

[¶8] Governmental immunity is the sole subject of the MTCA, 14 M.R.S.

§§ 8101-8118 (2021). The MTCA expressly provides that, as a general rule,

governmental entities are immune from suit on any and all tort claims seeking
5

recovery of damages. Reid v. Town of Mount Vernon, 2007 ME 125, ¶ 20,

932 A.2d 539; 14 M.R.S. § 8103(1). The MTCA does, however, include in section

8104-A “a cautious waiver of sovereign immunity by the Legislature in certain

carefully circumscribed circumstances.” Searle v. Town of Bucksport,

2010 ME 89, ¶ 27, 3 A.3d 390. We construe this waiver strictly in order to

adhere to the Legislature’s directive that immunity for a governmental entity

remains the general rule. See Est. of Fortier v. City of Lewiston, 2010 ME 50,

¶ 8, 997 A.2d 84 (“In construing section 8104-A, we recognize that the

MTCA employs an exception-to-immunity approach rather than an

exception-to-liability approach.” (quotation marks omitted)).

[¶9] The public building exception to immunity provides that “[a]

governmental entity is liable for its negligent acts or omissions in the

construction, operation or maintenance of any public building or the

appurtenances to any public building.” 14 M.R.S. §8104-A(2). The MTCA does

not define the term “appurtenance,” and we have adopted a restrictive

definition of the term, in accordance with “the exacting approach we follow

when construing the exceptions to immunity under the MTCA.” Sanford v. Town

of Shapleigh, 2004 ME 73, ¶ 10, 850 A.2d 325. “[F]or purposes of section

8104-A(2), an appurtenance is an object or thing that belongs or is attached to
6

a public building.” Id. ¶ 11. “In determining whether something ‘belongs’ to a

building . . . we have rejected a function-based approach in favor of using the

‘well-established definition of a fixture to determine whether an object [is] an

appurtenance.’” McDonald, 2020 ME 119, ¶ 15, 239 A.3d 662 (quoting Searle,

2010 ME 89, ¶¶ 13-14, 3 A.3d 390). Thus, to be an appurtenance under section

8104-A(2), the object in question must be “(1) physically annexed to the realty,

(2) adapted to the realty, and (3) intended to be irremovable from the realty.”

McDonald, 2020 ME 119, ¶ 15, 239 A.3d 662.

[¶10] Klein relies on our recent decision in McDonald1 to support her

argument that the parking lot is an appurtenance to Holmes Hall or Fogler

Library.2 Id. ¶¶ 15-16. In McDonald, we held that a paved brick plaza leading

1 Klein contends that McDonald v. City of Portland, 2020 ME 119, 239 A.3d 662, supports her

position that the parking lot is an appurtenance on the grounds that we adopted a new “multi-factor
balancing test for whether a paved outdoor area contiguous to a public building constitutes an
appurtenance.” Contrary to Klein’s contentions, we neither created nor adopted a new test. We
applied existing law by employing the “fixture test” as originally outlined in Searle v. Town of
Bucksport, 2010 ME 89, ¶¶ 13-22, 3 A.3d 390. See McDonald, 2020 ME 119, ¶¶ 15-16, 239 A.3d 662.
2 Klein also resorts to dictionary definitions of “appurtenance” and out-of-state case law in an

attempt to persuade us that it is an object’s “irremovable, essential, subordinate-to-principal
relationship that dictates whether the area outside a public building is an appurtenance to that
building” and, in offering this approach, implicitly argues that we overrule the “fixture test” we laid
out in Searle, 2010 ME 89, ¶¶ 13-22, 3 A.3d 390. The approach offered by Klein, however, is the very
“function-based approach” to determining whether an object is an appurtenance that we have
rejected on numerous occasions. See McDonald, 2020 ME 119, ¶ 15, 239 A.3d 662; Sanford v. Town
of Shapleigh, 2004 ME 73, ¶¶ 8-12, 850 A.2d 325. We have already determined that the MTCA
“employs appurtenance as a technical term” and have defined “appurtenance” and adopted the
“fixture test” to analyze whether an object constitutes an “appurtenance” under that definition.
Sanford, 2004 ME 73, ¶ 10, 850 A.2d 325; Searle, 2010 ME 89, ¶¶ 15-22, 3 A.3d 390 (enumerating the
factors of the “fixture test” for analyzing purported appurtenances). In formulating the “fixture test,”
we expressly considered dictionary definitions and out-of-state case law, along with the express
7

to the entrance of the Portland Police Department headquarters building was

an appurtenance to a public building under section 8104-A(2). Id. ¶¶ 16, 22.

Applying the three-part definition of a fixture to the facts of that case, we

concluded, first, that the plaza was “annexed to the Department building

because it serve[d] as the roof to the portion of the building underneath it and

[could not] be freely moved or relocated.” Id. ¶ 16. Second, we concluded that

the plaza was “adapted to the unique needs of the Department building”

because “the building’s lobby would be wholly inaccessible without [it].” Id.

Third, we concluded that the “annexation and essential nature of the plaza”

displayed the City’s intent to make it “an irremovable part of the Department

building.” Id. (quotation marks omitted). The fact that the plaza was physically

annexed to—formed the roof of a portion of—the Portland Police Department

headquarters building was critical to the outcome in McDonald. See id. ¶ 16.

[¶11] The uncontroverted facts demonstrate that the parking lot here is

materially distinguishable from the plaza in McDonald because although the

parking lot is contiguous to Holmes Hall—in that the parking lot shares a

language and the purposes behind the MTCA. See Sanford, 2004 ME 73, ¶¶ 9-11, 850 A.2d 325
(considering Black’s Law Dictionary and Am. Jur. 2d Vendor and Purchaser § 99 definitions, as
informed by the narrow construction of exceptions under the MTCA and the purpose of the MTCA, in
defining “appurtenance”); Searle, 2010 ME 89, ¶¶ 15-22, 3 A.3d 390. We are unpersuaded by Klein’s
arguments that we should adopt a new definition of “appurtenance” for purposes of the MTCA, and
as such, the “fixture test” as adopted in Searle controls here.
8

common border with Holmes Hall—the parking lot is not an object or thing that

is “physically annexed to” Holmes Hall or Fogler Library. Id. ¶ 15; see also

Annex, Black’s Law Dictionary (11th ed. 2019) (defining “annex” as

“[s]omething that is attached to something else, such as . . . an addition to a

building”). The parking lot is not attached to either Holmes Hall or Fogler

Library nor is it incorporated into these public buildings in any way.

Cf. Rodriguez v. Town of Moose River, 2007 ME 68, ¶¶ 8, 28 n.3, 38, 922 A.2d 484

(noting that external stairs leading into a public building fall within the

definition of an appurtenance); Donovan v. City of Portland, 2004 ME 70, ¶ 15,

850 A.2d 319 (referring to “stairs and other building appurtenances”).

[¶12] Because the parking lot is not annexed to either Holmes Hall or

Fogler Library, it cannot be “an irremovable part of the . . . building.” McDonald,

2020 ME 119, ¶ 16, 239 A.3d 662 (quotation marks omitted). Thus, there is no

evidence to support two of the three necessary factors.

[¶13] Even if the parking lot were annexed to one of the public buildings,

however, it would not satisfy the remaining factor necessary to the definition

of a fixture. The parking lot is not “adapted to the realty” because it is not

unique or integral to Holmes Hall or Fogler Library in any way. See Searle,

2010 ME 89, ¶¶ 19-20, 3 A.3d 390; McDonald, 2020 ME 119, ¶¶ 15-16,
9

239 A.3d 662. Many buildings border parking areas that facilitate the arrival

and departure of visitors to the building, and there is no factual basis upon

which to determine that this parking lot serves any special purpose—it does

not serve as an entryway to any building, and it has no designated purpose

other than parking.

[¶14] The parking lot outside of Holmes Hall and Fogler Library is not an

appurtenance as that term is used in section 8104-A(2) because it meets none

of the requirements necessary to qualify as a fixture. See Searle, 2010 ME 89,

¶¶ 17-22, 3 A.3d 390. To deem a parking area appurtenant to a public building

merely because someone parks her vehicle in it to gain access to another public

building would constitute an impermissible extension of the statutory

exceptions to governmental immunity. See 14 M.R.S. § 8104-A(2), (4). Because

the parking lot is not an appurtenance, Klein’s injury is one for which the

University is afforded governmental immunity from suit by section 8103(1).

Accordingly, the Superior Court correctly determined that the University is

entitled to entry of a summary judgment.

The entry is:

Judgment affirmed.
10

JABAR, J., dissenting.

[¶15] I respectfully dissent because I believe a “function-based

approach” is more sensible and practical than a “fixture-based approach” and

aligns more closely with the intent of the Legislature when it enacted the Maine

Tort Claims Act (MTCA). Although we have never been asked to decide whether

a parking lot meets the definition of “appurtenance,” dictum in a previous case

indicated that parking lots are not appurtenances. See Kitchen v. City of Calais,

666 A.2d 77, 78 (Me. 1995). To determine if something is an appurtenance as

that term is used in 14 M.R.S. § 8104-A(2) (2021), we have adopted a

fixture-based approach, rejecting a function-based approach. Sanford v. Town

of Shapleigh, 2004 ME 73, ¶ 11, 850 A.2d 325; Searle v. Town of Bucksport,

2010 ME 89, ¶¶ 14-15, 3 A.3d 390. I believe conducting a fixture analysis is

proper when considering whether personal property constitutes an

appurtenance, but, as currently employed by the Court, a fixture-based

approach unnecessarily limits the definition of appurtenance when considering

other things that may be an appurtenance to a building. This narrow definition

is inconsistent with a plain reading of the statute and the legislative history.

Although all fixtures may be appurtenances, all appurtenances are not fixtures.

Searle, 2010 ME 89, ¶ 40, 3 A.3d 390 (Jabar, J., dissenting).
11

I. DISCUSSION

A. Maine Tort Claims Act

[¶16] The legislative history of the MTCA demonstrates that the concept

of governmental liability, and consequently a remedy for wrongly injured

citizens, is equally important to that of governmental immunity.

[¶17] In 1976, this Court abolished common-law sovereign immunity.

See generally Davies v. City of Bath, 364 A.2d 1269 (Me. 1976); Bale v. Ryder,

286 A.2d 344, 345 (Me. 1972). Forced into action, the Legislature hastily

passed the MTCA in early 1977. See P.L. 1977, ch. 2. In the same legislative

session, the Legislature revised the MTCA two more times. See P.L. 1977, ch. 78,

§§ 113-116; P.L. 1977, ch. 578, §§ 1-5A. The latter enactment added

appurtenances to the public building exception to immunity; under the initial

stop-gap measure, the public building exception applied only to buildings.

Compare P.L. 1977, ch. 2, § 2, with P.L. 1977, ch. 578, § 2. Legislators were not

concerned with appurtenances and parking lots at that time; instead, they

debated whether state employees should automatically receive immunity when

the state is also immune from suit. See, e.g., 2 Legis. Rec. 1644-45 (1977)

(remarks of Sens. Mangan, Collins, Curtis, and Merrill).
12

[¶18] That debate reveals the true legislative purpose of the MTCA. In

the words of Senator Collins:

There were some who felt that government should have no
immunity whatsoever. . . . There were [others] who would not have
opened the door to any sort of liability on the part of government,
and we said, well, that is not really the best way to go either,
because there are a number of civil wrongs that ought to be
redressed, and can we find some middle ground.

Well, we did find some middle ground and the middle ground is
based on the idea that we should open to liability those areas where
insurance can be obtained at a reasonable cost, and we were very
attentive to the fact that this involves not only the State of Maine,
but all of our cities and towns and districts and so on that are
governmental entities.

2 Legis. Rec. 1827 (1977).

[¶19] The Legislature intended the MTCA to serve as both sword and

shield. It empowers citizens to obtain compensation when they are injured by

certain enumerated negligent acts. The acts are those for which municipalities,

in particular, can obtain reasonably priced liability insurance. In fact, the

Legislature specifically studied the cost of liability insurance for municipalities

and amended the MTCA to reflect those findings. See 2 Legis. Rec. 1593 (1977)

(remarks of Rep. Spencer).

[¶20] At the same time, the MTCA shields government entities from

excessive tort liability. Both aspects are equally important to our interpretation
13

of the law, just as both aspects were equally important to the Legislature’s

forged compromise. As I explain in more detail below, the Court’s insistence on

narrowly construing exceptions to governmental immunity is wrong partly

because it disrupts this balance, which we have recognized before. See Searle,

2010 ME 89, ¶ 42, 3 A.3d 390 (Jabar, J., dissenting) (“The Legislature enacted

the MTCA to afford citizens a remedy to which they otherwise would not be

entitled due to sovereign immunity.”); Rodriguez v. Town of Moose River,

2007 ME 68, ¶ 34 n.4, 922 A.2d 484 (“The Legislature created the narrow

exceptions to governmental immunity under the assumption that

governmental entities would acquire insurance to cover liability for claims

outside immunity protection . . . .”).

B. Fixture-based Approach

[¶21] The Court today makes clear that under the MTCA an

appurtenance must be a fixture. Referencing our previous decision in

McDonald v. City of Portland, 2020 ME 119, ¶¶ 15-16, 239 A.3d 662, the Court

says, “We applied existing law by employing the ‘fixture test’ as originally

outlined in Searle v. Town of Bucksport, 2010 ME 89, ¶¶ 13-22, 3 A.3d 390.”

Court’s Opinion ¶ 10 n.1. By adopting a fixture-based approach, we have so

narrowed the definition of appurtenance that it means only fixtures. I disagree
14

with the Court’s limiting interpretation of the term appurtenance. The plain

meaning of the term demonstrates that all appurtenances are not necessarily

fixtures. The plain meaning demands additional analysis.

[¶22] The Court’s current fixture-based approach does not account for

this need. For the purpose of the MTCA, we have defined appurtenance as “an

object or thing that belongs or is attached to a public building.” Sanford,

2004 ME 73, ¶ 11, 850 A.2d 325. Although this definition suggests that things

other than fixtures could be appurtenances, it presents a false choice: “the

proper analysis” simply asks if a thing that may be an appurtenance is either a

fixture or personal property. See Searle, 2010 ME 89, ¶¶ 11, 15, 3 A.3d 390.

After we defined appurtenance in Sanford, 2004 ME 73, ¶ 11, 850 A.2d 325, a

majority of this Court later described that case as “apply[ing] the

well-established definition of a fixture to determine whether an object was an

appurtenance,” Searle, 2010 ME 89, ¶ 14, 3 A.3d 390. This description is

misleading. Sanford created a common law definition of appurtenance that was

informed by (1) dictionary definitions of appurtenance and appurtenant; (2) a

legal treatise’s description of appurtenances; and (3) a dictionary definition of

fixture. 2004 ME 73, ¶¶ 9-11, 850 A.2d 325. We then applied that common law

definition, which more closely resembles the dictionary definition of
15

appurtenance than it does fixture, to determine if a trash bin was an

appurtenance. Id. ¶¶ 11-12. Our application of that definition did not even

mention the word “fixture.” Id.

[¶23] I agree that it is necessary to distinguish fixtures from personal

property, as was done in Sanford, because a governmental entity is not liable

“for its negligent acts or omissions in the construction, operation or

maintenance” of its personal property. See 14 M.R.S. § 8104-A(2). The Court’s

definition for fixture, as articulated in Searle, is well suited to determine if

personal property has become a fixture. 2010 ME 89, ¶ 16, 3 A.3d 390. But our

prior cases involving the public building exception to immunity have primarily

dealt with things that are commonly considered personal property. See, e.g., id.,

¶ 15 (bleachers); Sanford, 2004 ME 73, ¶ 12, 850 A.2d 325 (freestanding trash

bin); Donovan v. City of Portland, 2004 ME 70, ¶ 5, 850 A.2d 319 (exterior

lighting); Peterson v. City of Bangor, 2003 ME 102, ¶¶ 7-8, 831 A.2d 416

(monkey bars); Petillo v. City of Portland, 657 A.2d 325, 327 (Me. 1995)

(irrigation system) (dicta). But see McDonald, 2020 ME 119, ¶¶ 4-5,

239 A.3d 662 (plaza); Kitchen, 666 A.2d at 78 (“The City’s statement of material

facts places the raised, blacktopped curbing in the parking area. A parking area

constitutes neither a public building nor an appurtenance to a public building.”)
16

(predating Sanford); Stretton v. City of Lewiston, 588 A.2d 739, 741 (Me. 1991)

(holding that an athletic field is neither a public building nor an appurtenance

because it is similar to “a camouflaged underground assault shelter,” which “is

not a public building within the meaning of the [MTCA]” (citing Lovejoy v. State,

544 A.2d 750, 751 (Me. 1988))) (predating Sanford).

[¶24] Here, we are asked for the first time to determine on the merits

whether a parking lot—a piece of realty rather than an object or personal

property—is an appurtenance to a public building. A fixture-based approach

cannot answer the question.

C. Function-based Approach

[¶25] To correct this limited and narrow view of what constitutes an

appurtenance, we should adopt a more sensible and practical function-based

approach. I recognize that we have previously rejected this approach. In

Sanford, we “decline[d] to adopt a function-based approach and rel[ied] instead

on a more restrictive understanding of the term,” despite “acknowledg[ing] that

the function-based definition employed by the Superior Court . . . [was] sensible

and offer[ed] a practical standard.” 2004 ME 73, ¶ 8, 850 A.2d 325. An

examination of the plain language of the MTCA requires us to revisit our

rejection of the function-based approach.
17

1. Plain Language

[¶26] As the Court notes, our main objective in construing a statute is to

give effect to the will of the Legislature. Desgrosseilliers v. Auburn Sheet Metal,

2021 ME 63, ¶ 8, 264 A.3d 1237. We achieve this objective by first examining

the plain language of the statute. Wuori v. Otis, 2020 ME 27, ¶ 6, 226 A.3d 771.

When we give statutory language its plain and ordinary meaning, we “have

often relied on dictionaries to determine such meanings.” Rockland Plaza

Realty Corp. v. City of Rockland, 2001 ME 81, ¶ 12, 772 A.2d 256; see Mortg. Elec.

Registration Sys., Inc. v. Saunders, 2010 ME 79, ¶ 11, 2 A.3d 289. We also

interpret statutory language to avoid absurd, illogical, or inconsistent results.

Jackson Lumber & Millwork Co. v. Rockwell Homes, LLC, 2022 ME 4, ¶ 10,

266 A.3d 288.

[¶27] The public building exception to immunity provides that “[a]

governmental entity is liable for its negligent acts or omissions in the

construction, operation or maintenance of any public building or the

appurtenances to any public building.” 14 M.R.S. § 8104-A(2). The Legislature

did not define the term appurtenance in the MTCA.

[¶28] I note here that in our jurisprudence we have inconsistently

applied a rule of statutory construction when interpreting this undefined term.
18

In Searle, we said that “[a]s a general rule, words and phrases that are not

expressly defined in a statute must be given their plain and natural meaning

and should be construed according to their natural import in common and

approved usage.” 2010 ME 89, ¶ 8, 3 A.3d 390 (quotation marks omitted). In

Sanford, however, we said that “because the MTCA employs appurtenance as a

technical term, we are guided by the rule that technical words and phrases and

such as have a peculiar meaning convey such technical or peculiar meaning.”

2004 ME 73, ¶ 10, 850 A.2d 325 (alteration and quotation marks omitted). The

Sanford Court did not explain why it thought the MTCA employed appurtenance

as a technical term, nor does either party here, so “the plain meaning of [this

undefined] term controls.” State v. York, 1997 ME 209, ¶ 9, 704 A.2d 324;

Ethyl Corp. v. Adams, 375 A.2d 1065, 1075 (Me. 1977) (“Since we find no

indication that the Legislature intended that the [statutory term] be given a

peculiar or technical meaning, we construe it according to the common

meaning of the language.” (quotation marks omitted)).

[¶29] To begin with, the Legislature used the term appurtenances, not

fixtures. See Court’s Opinion ¶ 9. We can assume that the Legislature knew the

difference between an appurtenance and a fixture. “Fixture” is defined as

“[p]ersonal property that is attached to land or a building and that is regarded
19

as an irremovable part of the real property . . . .” Fixture, Black’s Law Dictionary

(11th ed. 2019); cf. Personal Property, Black’s Law Dictionary (11th ed. 2019)

(“Any movable or intangible thing that is subject to ownership and not

classified as real property.”). In contrast, we have noted that appurtenance is

defined as “‘something that belongs or is attached to something else.’” Sanford,

2004 ME 73, ¶ 9, 850 A.2d 325 (quoting Appurtenance, Black’s Law Dictionary

(7th ed. 1999)). By the plain meaning of the word, then, something can be an

appurtenance in one of two ways: either it belongs to something else or it is

attached to something else. A plain reading of the term does not support the

conclusion that an appurtenance can be only a fixture.

[¶30] Furthermore, I note that the Court relies on the rule of statutory

construction that says that we consider the entire scheme when construing a

statute’s plain language. Court’s Opinion ¶ 7. Accordingly, we have narrowly

construed exceptions to immunity and restrictively defined the term

appurtenance to give effect to the structure of the MTCA, which “employs an

exception-to-immunity approach rather than an exception-to-liability

approach.” Est. of Fortier v. City of Lewiston, 2010 ME 50, ¶ 8, 997 A.2d 84

(quotation marks omitted). As discussed above, this construction is not

consistent with the balance between immunity and liability that the Legislature
20

diligently crafted. A function-based approach is much more attuned to striking

this balance than a fixture-based approach.

2. Operation of a Function-based Approach

[¶31] A function-based approach begins with the dictionary definition of

appurtenance that we cited in Sanford: a thing belongs to—and, thus, is

appurtenant to—a public building if that thing is “integral” or “significantly

connected” to the building’s function or purpose.3 2004 ME 73, ¶¶ 5, 9,

850 A.2d 325. We recognized in Sanford that appurtenances must be

something other than personal property, but we mistakenly limited the

definition to fixtures without considering that a parking lot, or similar realty,

may be an appurtenance to a building. Id. ¶ 11. We explained:

Appurtenances are things belonging to another thing as principal
and which pass as incidents to the particular thing . . . . The term is
commonly employed in connection with land conveyances to
describe objects or things that pass to a grantee as an incident of
the transfer. As used in conveyances, the term passes nothing but
the land and such things as belong thereto and are a part of the
realty.

Alternatively, a thing may be an appurtenance if it is attached to a public building. See Sanford v.
3

Town Shapleigh, 2004 ME 73, ¶ 9, 850 A.2d 325. To determine if an object is attached to a public
building under a function-based approach, follow the fixture analysis outlined in Searle. 2010 ME 89,
¶¶ 16-21, 3 A.3d 390.
21

Id. ¶ 9 (quotation marks and citation omitted) (citing 77 Am. Jur. 2d Vendor and

Purchaser § 99 (1977)). In other words, an appurtenance belongs to a principal

thing if it is incidental to the principal thing. In this context, “incident” means

“[d]ependent upon, subordinate to, arising out of, or otherwise connected

with.” Incident, Black’s Law Dictionary (11th ed. 2019). An appurtenance is

integral or significantly connected to a principal thing if it serves that principal

thing’s essential purpose.

[¶32] Our recent decision in McDonald highlights the practicality of a

function-based approach, which we essentially employed to determine

whether a plaza was a fixture. See 2020 ME 119, ¶ 16, 239 A.3d 662. We used

the definition of fixture to determine whether a plaza “‘belong[ed]’ to” the

Portland Police Department and, therefore, was an appurtenance to that public

building. Id. ¶¶ 1, 15. We held the plaza was an appurtenance because it was

(1) annexed to the Department, serving as the roof to a portion of the building;

(2) “necessary for the proper function of the building” because the “lobby

would be wholly inaccessible without the plaza”; and (3) “‘an irremovable part’”

of the building as shown by “the annexation and essential nature of the plaza to

the functioning of the Department building.” Id. ¶ 16 (quoting Searle,

2010 ME 89, ¶ 22, 3 A.3d 390).
22

[¶33] This result was correct under our precedent only because we used

a fixture-based approach, but the fact remains that a plaza is obviously not a

fixture. As noted above, a fixture is “[p]ersonal property that is attached to land

or a building and that is regarded as an irremovable part of the real property.”

Fixture, Black’s Law Dictionary (11th ed. 2019). The plaza was intended to be

irremovable not because of the purpose it serves when attached to the building,

but because it is actually a part of the building. See McDonald, 2020 ME 119, ¶ 5,

239 A.3d 662. It never was and never could become freely movable personal

property, and therefore it could never become a fixture as that term is

commonly understood. But our reliance upon a fixture-based approach forced

us to pretend otherwise.

[¶34] In contrast, under a function-based approach, we would be free to

hold that the plaza was an appurtenance not because it was a fixture but

because it served the building’s essential purpose by enabling access and acting

as a roof to a portion of the building. See id. ¶ 14 (“Our caselaw suggests that

whether the plaza is an external part of the building or an appurtenance to the

building is a distinction without a difference.”). It is integral to the building’s

essential purpose because of its function, not because of the legal fiction that it
23

is a fixture. A function-based approach avoids the absurd fiction that we

created in McDonald—that a plaza is a fixture.

[¶35] Contrary to what this Court has previously said, a function-based

approach does not “expand governmental liability by including personal

property integral to the activities undertaken at a public building without

regard to whether the property belongs or is attached to the building.” Sanford,

2004 ME 73, ¶ 11, 850 A.2d 325. Rather, a function-based approach confers the

exact degree of liability the Legislature intended by immunizing governmental

entities from negligent acts for which insurance is unavailable or too expensive

while simultaneously affording citizens a remedy for injuries suffered through

no fault of their own. 2 Legis. Rec. 1827 (1977) (remarks of Sen. Collins).

A judicially-created, narrowly construed fixture-based approach to the public

building exception to immunity results in an interpretation that contradicts the

plain meaning of the statute and the clear intent of the Legislature. It expands

immunity for the government and frustrates citizens who seek a remedy for

injuries caused by the government’s negligence. Those fortunate enough to be

injured in the government’s building will be compensated, while those injured

in the government’s parking lot will not.
24

II. APPLICATION

[¶36] Adopting a function-based approach here, I would vacate the

Superior Court’s summary judgment and, based on the record before us, hold

that the parking lot is an appurtenance. The parking lot where Klein slipped on

untreated ice is definitely not a fixture because a parking lot does not possess

the hallmarks of personal property. Namely, it is not freely moveable, so it

could never make the transition from being personal property to being affixed

to a building.

[¶37] Rather, the summary judgment record demonstrates that the

parking lot is an appurtenance because it belongs to two public buildings,

Holmes Hall and Fogler Library. The University stipulated that the parking lot

serves these buildings: “The Parking Lot’s only function is to facilitate the Public

Buildings’ operations.” The University also stipulated that the only way to

access Fogler Library by vehicle is by using the parking lot and that it maintains

the parking lot to facilitate the library’s essential functions and operations. In

sum, the parking lot serves the buildings’ essential purposes by facilitating

access. Moreover, contrary to the Court’s characterization, Court’s Opinion ¶ 3,

the University stated in its Statement of Material Facts that it has liability
25

insurance that may cover Klein’s injuries, demonstrating that the MTCA is

operating as the Legislature intended.

[¶38] Furthermore, we have previously said that a governmental entity’s

failure to treat icy conditions could be considered a negligent act or omission

in the maintenance of an appurtenance to a public building. McDonald,

2020 ME 119, ¶¶ 16, 21, 239 A.3d 662 (defining “maintenance” as “the care and

work put into a property to keep it operating and productive; general repair

and upkeep” (quotation marks and alteration omitted)). Here, the University

admitted that it acted negligently when it failed to maintain the parking lot by

allowing it to become icy and that its negligence directly caused Klein’s injuries.

Klein should be entitled to pursue her claim for damages for her injuries.

Instead, the Court’s interpretation leads to yet another “absurd” result: Klein is

not entitled to pursue damages for slipping on ice in a parking lot even though

the plaintiff in McDonald was entitled to damages for slipping on ice in a plaza.

See id. ¶ 22.

[¶39] I point out one last flaw with a fixture-based approach. The Court

contends that the parking lot “is materially distinguishable from the plaza in

McDonald” because the parking lot is not physically annexed to a public

building, it is simply contiguous to one. Court’s Opinion ¶ 11. The Court
26

explains that “[t]he fact that the plaza was physically annexed to—formed the

roof of a portion of—the Portland Police Department headquarters building

was critical to the outcome in McDonald.” Court’s Opinion ¶ 10. However,

similar to appurtenance, the Court’s own definition of fixture is not limited to

something physically annexed to a building. Searle, 2010 ME 89, ¶¶ 15-16,

3 A.3d 390. In Searle, we defined fixture, in relevant part, as something

“physically annexed, at least by juxtaposition, to the realty or some

appurtenance thereof.” Id. ¶ 16 (emphasis added). Juxtaposition means “an

instance of placing two or more things side by side or near one another.”

Juxtaposition, Black’s Law Dictionary (11th ed. 2019). An object can be

physically annexed, then, by being actually attached to the building, such as the

plaza in McDonald, or by being physically annexed by juxtaposition—

contiguous, to be concise—such as the parking lot here.

[¶40] I also do not agree that the parking lot is not adapted to the

buildings it serves. The parking lot is adapted to the unique needs of Holmes

Hall and Fogler Library because, “[u]nlike other parking areas on campus that

serve the University’s non-specific, at-large parking needs, the Parking Lot is

primarily used by faculty and staff working at Holmes Hall; and by faculty, staff,

and visitors using the Fogler Library across the street.” The University
27

constructed and maintained the parking lot to facilitate access to these

particular public buildings and it “restrict[s] use of the Parking Lot to faculty

and visitors who wish to conduct business inside the Public Buildings

consistent with [their] essential functions and operations.” Indeed, Klein “could

not access Fogler Library without first passing through the Parking Lot.” The

University stipulated to these facts and, as such, they are the “factual basis upon

which to determine that this Parking Lot serves [a] special purpose.” Court’s

Opinion ¶ 13. Just as the entrance to the police department in McDonald was

inaccessible but for the plaza, the entrance to Fogler Library is inaccessible but

for the parking lot. Both were specifically designed to facilitate access in the

manner intended by the governmental entities that constructed them. The

outcomes of these cases should be the same; the different results demonstrate

the inherent problem with the fixture-based approach’s definition of

appurtenance under the MTCA.

III. CONCLUSION

[¶41] I would change our approach to defining the term appurtenance,

replacing the fixture-based approach with a function-based approach. A

function-based approach is a sensible, practical approach that accurately

reflects the statute’s plain language and the intent of the Legislature when it
28

enacted the MTCA. I would further hold that the parking lot that serves Holmes

Hall and Fogler Library is an appurtenance to those buildings and that Klein is

entitled to pursue damages for the injuries caused by the University’s failure to

maintain the parking lot.

William C. Herbert, III, Esq., and Sean V. Walton, Esq. (orally), Hardy Wolf &
Downing, P.A., Lewiston, for appellant Karen S. Klein

Christopher C. Dinan, Esq., and Laura A. Maher, Esq. (orally), Monaghan Leahy,
LLP, Portland, for appellees University of Maine System and University of Maine

Knox County Superior Court docket number CV-2020-16
FOR CLERK REFERENCE ONLY