McIlwain v. Cumberland County Sheriff's Office

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STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. CV-19-385

WALTER DARYL MCILWAIN )
Plaintiff, )
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v. )
) ORDER ON DEFENDANT'S MOTION
CUMBERLAND COUNTY ) FOR SUMMARY JUDGMENT
SHERRIFF'S DEPARTMENT )
Defendant. )
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Before the Court is Defendant Cumberland County Sheriff's Department's Motion I
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for Summary Judgment against Plaintiff Walter Daryl Mcilwain. For the following I
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reasons, the motion is granted. ~
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I. Summary Judgment Factual Record I
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On the evening of February 9, 2019, Plaintiff Walter Mcilwain parked his vehicle Ii
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in the parking lot of the Cumberland County Sheriff's Department. (Supp'g S.M.F. 'l[ 1.)1
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The portion of the lot where Mr. Mcilwain found parking was dark and poorly-lit (Supp' g I
S.M.F. 'l[ 2.) After exiting his vehicle and walking towards the building's entrance, Mr.
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Mcilwain's head was impacted by poles protruding from the back of a truck owned by
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an employee of the Cumberland County Sherriff's Department. (Supp'g S.M.F. 'l['l[ 3-5;
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Opp. S.M.F. 'l[ 5.) Mr. Mcilwain reported the injury to the front desk deputy and was
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advised to seek medical attention by a Sheriff's Department employee. (Supp' g S.M.F. 'l[ I'
6.) He sustained abrasions, bruising, and scarring as a result of the incident. (Supp'g

S.M.F. 'l[ 7.)

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In its Statement of Material Facts, Defendant notes that, because its motion for summary
judgment is effectively a motion to dismiss or motion for judgment on the pleadings supported
by affidavits, the well-pleaded allegations in the Plaintiff's Complaint are taken as true for the
purposes of its motion only.
For Defendant: Laura Maher, Esq. //
Plaintiff: Pro-Se Litigant
John Wall, Esq.
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Mr. Mdlwain contacted the Sheriff's Department about the incident on a number

of occasions, but the County did not receive a formal Notice of Claim compliant with the

notice requirements of the Maine Tort Claims Act (Supp'g S.M.F. 'l[ 8.)

Plaintiff filed 2 a complaint on September 25, 2019, alleging three counts of

negligence: Count I, Defendant failed to provide a safe and well-lit parking lot

environment; ·count II, Defendant was aware of the parking lot hazard and allowed its

employees to park in the lot with the dangerous poles extended; and Count III, Defendant

was aware that the furthest parking spaces from the building were dark and not well-lit,

creating a hazardous situation. Plaintiff seeks compensatory damages in the amount of

$6,000, in addition to court costs.

Defendant filed the instant Motion for Summary Judgment on May 21, 2020,

moving for summary judgment on all claims asserted in Plaintiff's Complaint. Plaintiff

filed an opposition to Defendant's motion on June 8, 2020. Defendant filed a reply

memorandum on June 17, 2020, and Plaintiff filed a reply to Defendant's reply to

memorandum on June 23, 2020.

Defendant seeks summary judgment on the basis of two arguments: first, that

Plaintiff failed to serve notice upon Defendant pursuant to the notice requirements of the

Maine Tort Claims Act, 14 M.R.S. §§ 8101-8118 (2014), thereby barring the claim and

divesting the court of subject matter jurisdiction; and second, even if notice had been

served, the County is immune from liability because Plaintiff's claims do not fall within

any exception to immunity under the Maine Tort Claims Act. (Def.'s Mot. Summ. J. 1.)

' Plamtiff initially filed his drum on May 15, 2019 in small drums court at the Portland District
Court. A hearing was held on June 13, 2019. No representative from the County appeared and a
default was entered against it in the total amount of $1,495. The District Court issued an order on
August 21, 2019 finding it lacked subject matter jurisdiction over Plaintiff's claim and vacating
the judgment it had entered on June 13, 2019.

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II. Standard of Review

A party is entitled to summary judgment when review of the parties' statements

of material facts, and the record to which the statements refer, demonstrate that there is

no genuine issue as to any material fact in dispute, and that the moving party is entitled

to judgment as a matter of law. Dyer v. Dep't ofTransp., 2008 ME 106, 'II 14,951 A.2d 821;

M.R. Civ. P. 56(c). A contested fact is "material" if it could potentially affect the outcome

of the case. Id. A "genuine issue" of material fact exists if the claimed fact would require

a factfinder to "choose between competing versions of the truth." Id. (quoting

Farrington's Owners' Ass'n v. Conway Lake Resorts, Inc., 2005 ME 93, 'II 9,878 A.2d 504).

When deciding a motion for summary judgment, the court reviews the evidence

in the light most favorable to the non-moving party. Id. A plaintiff opposing a summary

judgment motion must establish a prima facie case for each element of each of his or her

claims. Tri-Town Marine, Inc. v. J.C. Milliken Agency, Inc., 2007 ME 67, 'II 7, 924 A.2d 1066.

The evidence offered in support of a genuine issue of material fact "need not be

persuasive at that stage, but the evidence must be sufficient to allow a fact-finder to make

a factual determination without speculating." 3 Estate of Smith v. Cumberland Cty., 2013

ME 13, 'II 19, 60 A.3d 759.

III. Discussion

Plaintiff disputes both defenses to liability raised by the Cumberland County

Sheriff's Department in its Motion for Summary Judgment. First, Plaintiff asserts that he

made several efforts to notify Defendant about the claim, and argues that these efforts

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Each party's statements must include a reference to the record where "facts as would be
admissible in evidence" may be found. M.R. Civ. P. 56(e). A party's opposing statement of
material facts "must explicitly admit, deny or qualify facts by reference to each numbered
paragraph, and a denial or qualification must be supported by a record citation." Stanley v.
Hancock Cti;. Comm'r, 2004 ME 157, 'l[ 13, 864 A.2d 169.

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should constitute substantial compliance with the notice requirements of the Maine Tort

Claims Act. Second, Plaintiff contends that his claim is not barred by the immunity

provisions of the Maine Tort Claims Act because it falls within the exception for the

operation and maintenance of public buildings.

A. Notice Requirement

Defendant asserts that Plaintiff's Claim is barred by the notice requirements of the

Maine Tort Claims Act because Plaintiff failed to serve the Defendant with timely notice

pursuant to 14 M.R.S. § 8107(1). Defendant also asserts that Plaintiff did not wait the

statutorily mandated 120 days before filing suit as required by 14 M.R.S.A. § 8108, thereby

divesting the court of jurisdiction. (Def.'s Mot. Summ. J. 4.)

While Mr. Mcilwain does not dispute that he did not comply with the formal

notice requirements of the Act, he argues that Defendant should have had actual notice

of the claim because of the efforts he made to contact the County, including 1) his attempt

to file a medical injury claim at the time of the incident; 2) a phone conversation with a

Lieutenant of the Cumberland County Sherriff's Department; and 3) his initial filing of a

claim in small claims court at the Portland District Court. (Opp. S.M.F. 'JI 8.)

The court acknowledges that Mr. Mcllwain made several good-faith efforts to

notify the Cumberland County Sherri££' s Department that he was pursuing a claim. The

Law Court has held, however, that "oral notice can never constitute substantial

compliance with the Act, even if the contents of the oral notice otherwise meet the [notice

requirements]." Deschenes v. City of Sanford, 2016 ME 56, 'JI 16, 137 A.3d 198.

Moreover, it is not necessary to determine whether there has been substantial

compliance with the notice requirement through any other means, because, as discussed

below, the Plaintiff's claim is barred by the immunity provisions of the Maine Tort Claims

Act.

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B. "Public Buildings" Exception of the Maine Tort Claims Act

The Cumberland County Sherriff' s Department also seeks summary judgment on

the ground that it is immune from liability pursuant to the Maine Tort Claims Act, 14

M.R.S. §§ 8101-8118 (2014), and that this claim does not fall within any of the Act's

enumerated exceptions.

The Maine Tort Claims Act provides that "all governmental entities shall be

immune from suit on any and all tort claims seeking recovery of damages." § 8103(1).

Plaintiff contends that his injuries fall within the Act's enumerated "public buildings"

exception to immunity. (Opp. S.M.F. '][ 11.) This exception provides that a governmental

entity is liable for bodily injuries that result from 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).

Plaintiff's theory is that that the parking lot is an appurtenance to the Cumberland

County Sherriff's Department building. He also argues that the County's negligence

extends to its failure to properly light the lot and maintain its video equipment, resulting

in its failure to see the conditions in the parking lot that gave rise to the injury. (Opp.

S.M.F. '][ 11.)

The Law Court has held that "[a] parking area constitutes neither a public building

nor an appurtenance to a public building." Kitchen v. City of Calais, 666 A.2d 77, 78 (Me.

1995) (referencing 14 M.R.S.A. § 8104(a)). Thus, the "public buildings" exception does

not apply to Mr. Mcllwain's claim.

To the extent that the Plaintiff argues that poor maintenance of the Cumberland

County Sherriff's Department's video equipment or inadequate lighting in the parking

lot places the claim within the "public buildings" exception, these arguments must also

fail. In a comparable case, a plaintiff asserted a negligence claim against the City of

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Portland when she fell while walking in the driveway in front of the main entrance to a

public school. Donovan v. City of Portland, 2004 ME 70,850 A.2d 319. There the plaintiff

conceded that governmental immunity extends to sidewalks and parking lots, but argued

that the public building exception applied to her claim because the lights in the area,

which were appurtenant to the building, were not lit. Id. 'l[ 10. In affirming the trial court's

grant of summary judgment in favor of the City, the Law Court held that public entities

are immune from liability for injuries resulting from lighting deficiencies above

sidewalks and parking areas. Id. 'l[ 14. The Court reasoned that "to hold otherwise,

municipalities would be exposed to litigation in an increasing radius around any outdoor

lighting that the municipalities might provide," which would "run counter to the strict

statutory construction required in interpreting the governmental immunity statutes." Id.
'l[ 15.

As a matter of law, the parking area does not constitute an appurtenance to the

Cumberland County Sheriff's Department. Therefore, the "public buildings" exception

to immunity does not apply and Defendant is immune from liability. Summary

Judgment is granted in favor of the Defendant, Cumberland County Sherriff's

Department.

IV. Conclusion

For the foregoing reasons, Defendant's Motion for Summary Judgment is granted.

The Clerk is directed to incorporate this Order into the docket by reference

pursuant to Maine Rule of Civil Procedure 79(a).

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Entered on the Docket:1ojd7Jia:xo 6