ORDER ON DEFENDANT'S MOTION FOR SUMMARY
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.
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. (Id. ¶¶ 3-4.) The
handrail is attached to a wooden wall with vinyl siding.
(PL's Addt'l S.M.F. ¶ 5.)
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.)
September 10, 2012, plaintiff filed an incident report with
defendant. (Supp. S.M.F. ¶14.) Defendant's
maintenance technician, Stephen Estes, inspected the
stairway. (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.)
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.)
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.)
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.)
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.)
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.
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.)
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 ...