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Kucher v. Avesta Housing Development Corp.

Superior Court of Maine, Cumberland

April 6, 2016



          Nancy Mills Justice

         Before the court are defendant Avesta Housing Development Corporation's (1) motion for summary judgment and (2) motion to strike plaintiff Mary-Ann Kucher's surreply in plaintiff's negligence action. For the following reasons, the motion for summary judgment is denied and the motion to strike is granted.


         Beginning in August 2008, plaintiff rented an apartment from defendant at 43 Townhouse Drive in South Portland. (Supp. S.M.F.¶ 1.) The apartment building was constructed in approximately 2004. (Id. ¶ 20.) Plaintiff uses an outdoor stairway to access her apartment "all the time." (Id. ¶ 2.) She also uses the stairway to access plants on her deck. (Id. ¶5.) She uses the handrail in the stairway for support and to pull herself up the stairs because she has back, knee, and hip problems.[1] (Id. ¶¶ 3-4.) The handrail is attached to a wooden wall with vinyl siding. (PL's Addt'l S.M.F. ¶ 5.)

         On August 31, 2012, plaintiff alleges that she was ascending the stairway when the handrail came loose. (Supp. S.M.F. ¶ 7.) Plaintiff estimates that she was on the third or fourth stair and that her foot slid down a stair or two before she was able to recover her balance and continue up the stairs. (Id. ¶¶ 8-10.) She admits that she never experienced any issues with the handrail prior to that day. (Id.¶ 6; Opp. S.M.F. ¶ 6.)

         On September 10, 2012, plaintiff filed an incident report with defendant. (Supp. S.M.F. ¶14.) Defendant's maintenance technician, Stephen Estes, inspected the stairway.[2] (Id. ¶ 16.) Mr. Estes did not see any issues by viewing the stairway or handrail. (Id.) He ascended the left side of the stairway while shaking the handrail and did not notice any issues. (Id. ¶17.) He descended the stairway while still shaking the handrail and saw the vinyl siding at the bottom of the stairway "move out." (Id.¶ 18; PL's Addt'l S.M.F. ¶ 1.) Mr. Estes then discovered rotted wood behind a mounting block for the handrail. (PL's Addt'l S.M.F. ¶ 2.)

         Mr. Estes admits that the rotted wood could only have been caused by exposure to water and that water must have permeated the vinyl siding. (Id. ¶¶ 4-5.) In his opinion, the water may have permeated the vinyl siding through gaps in the wall that are normally sealed with caulk. (Id. ¶¶ 10-11.) The gaps were no longer sealed with caulk because the caulk had shrunk and separated over time. (Id. ¶ 12.) Leonard Westra, plaintiff's expert, testified that in his opinion there were signs of water infiltration and mold on the property and that a routine inspection would have indicated the existence of rotted wood in the wall at issue. (Id. ¶¶ 15, 17.)

         The parties dispute the extent to which plaintiff notified defendant of her concerns regarding the stairway prior to August 31, 2012. Plaintiff claims that, in the year before her injury, she noticed significant areas of mold and decay, swelling and splintering wood, and peeling paint in the stairway. (Id. ¶¶ 26-32.) Plaintiff alleges that she contacted defendant's housing manager, Holly Souza, on two separate occasions in September 2011 and again in October 2011 to report her concerns. (Id. ¶¶ 26-28.) According to plaintiff, Ms. Souza responded that she could not worry about the rotted wood because she was dealing with a bedbug infestation in the development. (Id. ¶ 27.)

         Plaintiff further alleges that in October 2011 a man named Jacob, who, she understood, was defendant's head of maintenance, inspected the stairway. (Id. ¶ 29.) Plaintiff claims that she questioned Jacob about the mold and rot, and that he assured her the stairway was made of a special composite material that was impervious to mold, decay, and rot. (Id.) She also claims that she asked him about a rattling noise in the handrail, but he insisted there was nothing wrong. (Id. ¶ 30.) She claims she stated that the rails had mold, swelling, or visible rot. (Id. ¶¶ 31-32.)

         Defendant argues that these statements are inconsistent with plaintiffs prior testimony that she had not experienced any issues with the handrail prior to August 31, 2012. (Def.'s Reply .3-5); see Zip Lube v. Coastal Sav. Bank, 1998 ME 81, ¶ 10, 709 A.2d 733 ("[A] party will not be permitted to create an issue of material fact in order to defeat a summary judgment motion simply by submitting an affidavit disputing his own prior sworn testimony."). At her deposition, plaintiff testified that she had not had any issues with the handrail prior to August 31, 2012, but that she had complained about the rotted wood and issues with structural integrity. (Supp. S.M.F. ¶ 6; PL's Addt'l S.M.F. ¶ 26.) Her affidavit testimony about "a rattling noise in the exterior railing, " that "the edges of the railings, exposed wood surfaces had either some degree of mold or swelling and peeling back of paint and decay was visible, " that "she could see the railing rot, " and "she observed that the wood rails of the front stairs had areas of obvious and visible rot" is stricken. (PL's Addf 1 S.M.F. ¶¶ 30-32.) The remainder of her affidavit testimony does not contradict her prior testimony referenced in the statements of material facts. (See Opp. S.M.F. ¶ 6; PL's Addt'l S.M.F. ¶¶ 27-32.)

         Defendant denies the allegations in paragraphs 27 through 32 of plaintiff's additional statements of material facts but relies on legal argument only and does not support the denial by a record citation. M.R. Civ. P. 56(h)(3); (Def.'s Reply S.M.F. ¶¶ 27-32.) Accordingly, plaintiff's facts in those paragraphs, except those that are stricken, are admitted. M.R. Civ. P. 56(h)(4); Doyle v. Dep't of Human Servs., 2003 ME 61, ¶¶ 10, 13, 824 A.2d 48.

         The parties also dispute the extent to which defendant inspected the property prior to August 31, 2012. Plaintiff alleges that defendant did not have a protocol for inspecting the handrails. (PL's Addt'l S.M.F. ¶ 6.) Defendant claims that it required Mr. Estes or a supervisor to walk around the development and look for peeling paint and mold. (Supp. S.M.F. ¶ 19.) Defendant further claims that plaintiff's apartment was inspected and that an inspection report was drafted for each year from 2008 to 2013. (Id. ¶ 22.) In 2009 and 2012, the Maine State Housing Authority also inspected the property and did not find any code violations regarding egress from the buildings. (Id. ¶ 23.)

         Plaintiff filed her complaint on February 19, 2015. She alleged four counts of negligence: count I, negligence generally; count II, failure to provide reasonably safe premises; count III, failure to warn of a dangerous condition; and count IV, failure to maintain the premises as required by law. Defendant filed its motion for summary judgment on January 28, 2016. Plaintiff opposed the motion on February 18, 2016. Defendant filed a ...

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