Hon. Roland A. Cole, Justice, Superior Court.
Pursuant to Maine Rule of Civil Procedure 56, Defendant C.N. Brown Company (C.N. Brown") has moved for summary judgment against Plaintiff Brad White on his negligence claim following a slip and fall. Mr. White has opposed C.N. Brown's Motion. The court held a hearing on this matter on July 11, 2014.
After reviewing the parties' memoranda and statements of material facts, the summary judgment record, and hearing oral arguments on the Motion, the court has come to the conclusions detailed below.
I. FACTUAL BACKGROUND
The following facts are gathered from C.N. Brown's Statement of Material Facts (S.M.F.), Mr. White's Opposing Statement of Material Facts (O.S.M.F.) and Additional Statement of Material Facts (A.S.M.F.), and C.N. Brown's Reply Statement of Material Facts (R.S.M.F.).
On December 4, 2012, around 6:30 p.m., Brad White visited the C.N. Brown gas station at 48 Portland Road, Gray, Maine in order to fill gas cans with diesel fuel, (S.M.F, ¶ ¶ 1-2; O.S.M.F. ¶ ¶ 1-2; A.S.M.F. ¶ 3; R.S.M.F. ¶ 3.) It was a proverbially dark and stormy night in Gray--the rain was pouring, and the light was out over the diesel pump. (S.M.F. ¶ ¶ 4, 16; O.S.M.F. ¶ 16; A.S.M.F. ¶ ¶ 2, 4; R.S.M.F. ¶ 4.) Mr. White asked that the clerk turn on the pump and the lights over the pump, but the clerk informed him that the lights had been burnt out for at least 3 months. (S.M.F. ¶ ¶ 3, 4; A.S.M.F. ¶ ¶ 3, 4; R.S.M.F. ¶ ¶ 3, 4.) Mr. White proceeded anyhow, because he felt there was sufficient ambient lighting and he had a flashlight. (S.M.F. ¶ 4.) Mr. White lined up what he believes were six gas cans on the curb near the pump. (S.M.F. ¶ 6; O.S.M.F. ¶ 6.) He filled the cans, and began placing the cans about a turn and one or two steps away in his truck. (S.M.F. ¶ ¶ 7-9; O.S.M.F. ¶ ¶ 7-9.) In the process of loading the cans, Mr. White fell and hit his head on the tailgate of the truck. (S.M.F. ¶ ¶ 10; O.S.M.F. ¶ 10.) Mr. White contends that he " slipped on an oily substance." (A.S.M.F. ¶ 6.) Mr. White testified that his feet were always on the pavement and never on the sidewalk. (S.M.F. ¶ 11; O.S.M.F. ¶ 11.) Mr. White was able to get up and finish loading the gas cans into his truck. (S.M.F. ¶ 12; O.S.M.F. ¶ 12.)
Mr. White returned to the store and noticed " white stuff' and smelled diesel fuel on his pants. (S.M.F. ¶ 14; O.S.M.F. ¶ ¶ 13; 14.) He spoke to the clerk, who disclosed that there had been an oil spill around 2 p.m. that day, and that kitty litter had been used to attempt to soak up the spill. (S.M.F. ¶ 15; O.S.M.F. ¶ 15; A.S.M.F. ¶ ¶ 8-9; R.S.M.F. ¶ 9.) The store clerk said about the spilled oil, " I guess we didn't get it all." (A.S.M.F. ¶ 9; R.S.M.F. ¶ 9.)
Mr. White did not inspect the area where he fell, and he did not see what caused his fall. (S.M.F. ¶ 17-19.) After leaving the gas station, Mr. White went over to a friend's house, Richard Youngs, who was a manager for C.N. Brown, and described the incident to Mr. Youngs and showed him the fuel and kitty litter on his pants. (A.S.M.F. ¶ ¶ 11-12; R.S.M.F. 11-12.) Mr. Youngs gave Mr. White contact information for C.N. Brown. (A.S.M.F. ¶ 12; R.S.M.F. ¶ 12.) In a conversation with a C.N. Brown representative named Christy, Mr. White discussed slipping on yellow paint on the sidewalk, and he stated in his deposition that he did not know whether or not he slipped on yellow paint. (S.M.F. ¶ 21.)
Mr. White also indicated on a drawing at his deposition that diesel fuel " was down here on the ground because that's where I fell." (A.S.M.F. ¶ 15; R.S.M.F. ¶ 15.) Mr. White testified that he fell on diesel fuel and water, and stated that was his assumption. (S.M.F. ¶ 20; A.S.M.F. ¶ ¶ 16-17; R.S.M.F. ¶ 16-17.) He also provided that he had fallen into what he had slipped on, and that it must have been diesel fuel, since diesel fuel was on his pants as well as the kitty litter. (A.S.M.F. ¶ 18.)
II. STANDARD OF REVIEW
" Summary judgment is appropriate when the record reveals no issues of material fact in dispute. A fact is material if it has the potential to affect the outcome of the case." Lepage v. Bath Iron Works Corp ., 2006 ME 130, ¶ 9, 909 A.2d 629 (citations omitted). The facts are analyzed " in the light most favorable to the nonmoving party." Johnson v. McNeil , 2002 ME 99, ¶ 8, 800 A.2d 702.
The Law Court has held that " [s]ummary judgment is properly granted if the facts are not in dispute or, if the defendant has moved for summary judgment, the evidence favoring the plaintiff is insufficient to support a verdict for the plaintiff as a matter of law." Curtis v. Porter , 2001 ME 158, ¶ 7, 784 A.2d 18; see also Houde v. Millett , 2001 ME 183, ¶ 11, 787 A.2d 757. If " a defendant moves for summary judgment, the plaintiff 'must establish a prima facie case for each element of her cause of action' that is properly challenged in the defendant's motion." Curtis , 2001 ME 158, ¶ 8, 784 A.2d 18 (quoting Champagne v. Mid-Maine Med. Ctr ., 1998 ME 87, ¶ 9, 711 A.2d 842); see also Corey v. Norman, Hanson & DeTroy , 1999 ME 196, ¶ 9, 742 A.2d 933.
When considering a Motion for Summary Judgment, the court must admit uncontroverted facts from the statement of material facts that are properly supported. M.R. Civ. P. 56(h)(4). The court cannot consider parts of the record that were not properly referenced in a statement of material facts. See M.R. Civ.P. 56(h)(4) (" The court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' ...