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Bushey v. Berlin City of Portland, Inc.

Superior Court of Maine, Cumberland

January 25, 2016

STEPHEN J. BUSHEY Plaintiff,
v.
BERLIN CITY OF PORTLAND, INC. Defendant.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON COUNTS I AND III OF PLAINTIFFS COMPLAINT

A.M. Horton Justice, Superior Court

Defendant Berlin City of Portland, Inc. has moved for summary judgment on Plaintiff Stephen J. Bushey's claims against Defendant for negligence (Count I) and negligent entrustment (Count III).

Based on the entire record, Defendant's motion for summary judgment is granted as to Count I and denied as to Count III.

I. Background

The following facts are derived from the pleadings and the order on Defendant prior motion for summary judgment and are not in dispute for the purposes of this motion for summary judgment.

Defendant is a car dealership located in South Portland, Maine. (Compl. ¶ 2.); (6/19/15 Order on Def 1st Mot. Summ. J. 2.) At all relevant times, Mr. David Spiller was employed as Defendant's used car manager. (6/19/15 Order on Def 1st Mot. Summ. J. 2.) As its used car manager, Defendant permitted Mr. Spiller to drive demonstrator vehicles. (Id.) A "demonstrator" vehicle is a used vehicle owned by Defendant from its inventory. (Id.) Defendant allowed certain employees use demonstrator vehicles as a benefit to those employees and for other business reasons. (Id.)

On the evening Friday, July 22, 2011, Mr. Spiller left work with a demonstrator vehicle, a Lexus sedan. (Id.) Later that night, Mr. Spiller met Mr. Jeffery Martin and Plaintiff Stephen J. Bushey at a bar in Westbrook, Maine. (Id. at 1-2.) Mr. Spiller, Mr. Martin, and Plaintiff ordered food and drinks at the bar. (Id. at 2.)

At approximately 11:00pm, Mr. Spiller, Mr. Martin, and Plaintiff left the bar in the demonstrator vehicle. (Id. at 3.) Mr. Spiller was driving the demonstrator vehicle. (Id. at 1.) Mr. Martin and Plaintiff were both passengers. (Id. at 1-2.) While driving to Mr. Spiller's home, the demonstrator vehicle was involved in a single-car accident. (Id. at 1, 3.) Mr. Spiller admits that he was driving well over the speed limit when the accident occurred, but denies that he was intoxicated. (Id. at 3.) There is no dispute between the parties that Mr. Spiller's negligent operation of the demonstrator vehicle caused the accident. (Id. at 2.) Plaintiff Stephen J. Bushey suffered injuries as a result of the accident. (Id. at 1.)

On March 6, 2014, Plaintiff brought a three-count complaint against Defendant Berlin City of Portland, Inc. for negligence, respondeat superior liability, and negligent entrustment. (Compl. ¶¶ 4-11.) On March 17, 2015, Defendant filed its first motion for summary judgment. (Def. 1st Mot. Summ. J. 1.) Defendant's motion argued that it was not vicariously liable for its employee's negligence. (Id.) Plaintiff filed a timely opposition. (Pl. Opp'n to Def. 1st Mot. Summ. J. 1.) On June 19, 2015, the court granted Defendant's motion for summary judgment, finding that Mr. Spiller was not acting within the scope of his employment at the time of the accident. (6/19/15 Order on Def. 1st Mot. Summ. J. 7.) However, Defendant's motion did not address which of the Plaintiffs claims it was addressed to. (Id. at 4 n.3.) Accordingly, the court construed Defendant's motion as limited only to Count II of Plaintiff s complaint for respondeat superior. (Id.) Thus, Count I and Count III remained pending. (Id. at 7.)

Defendant filed its second motion for summary judgment on Count I and Count III of Plaintiffs complaint on September 22, 2015. (Def. 2d Mot. Summ. J. 1.) Plaintiff filed a timely opposition to summary judgment on October 13, 2015.[1] (PI, Opp'n to Def. 2d Mot, Summ. J, 1.) Defendant filed a reply brief on November 2, 2015.[2] (Def. Reply to Pl. Opp'n to Def. 2d Mot. Summ. J. l.)

II. Analysis

A. Standard of Review

Summary judgment is appropriate if, based on the parties' statements of material fact and the cited record, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M.R Civ. P. 56(c); Dyer v. Dep't of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821. "A material fact is one that can affect the outcome of the case. A genuine issue of material fact exists when the [Tact finder] must choose between competing versions of the truth." Dyer, 2008 ME 106, ¶ 14, 951 A.2d 821 (internal citation and quotation marks omitted). When deciding a motion for summary judgment, the court reviews the evidence in the light most favorable to the non-moving party. Id.

If the moving party's motion for summary judgment is properly supported, the burden shifts to the non-moving party to respond with specific facts indicating a genuine issue for trial in order to avoid summary judgment. M.R. Civ. P. 56(e). "To withstand a motion for summary judgment, the plaintiff must establish a prima facie case for each element of their cause of action." Watt v. UniFirst Corp., 2009 ME 47, ¶ 21, 969 A.2d 897 (internal citation and quotation marks omitted). If a ...


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