ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY
case arises out of what the Plaintiff Kathleen O'Brien
alleges to be her fall in a pothole in the parking lot of a
shopping center at 290 Congress Street, Portland, owned or
operated by Defendants Owen Pickus and Congress Plaza, LLC
have filed two motions for summary judgment. One motion,
filed by Congress Plaza alone, seeks summary judgment on the
basis that Congress Plaza has never owned or operated the
shopping center and thus cannot be liable for Plaintiffs
claim. The other motion, filed by both Defendants, seeks
summary judgment on the ground that the Plaintiff lacks
sufficient evidence regarding the circumstances of her fall
to meet her burden of persuasion on the issue of causation,
thereby entitling the Defendants to summary judgment. Both
motions are opposed. The court elects to decide the both
motions without oral argument. See M.R. Civ. P.
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 [fact 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.
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). See Watt v. UniFirst Corp., 2009 ME 47,
¶ 21, 969 A.2d 897ln fact, in responding to a properly
supported motion for summary judgment on a claim, "the
[party asserting the claim] must establish a prima facie case
for each element of [its] cause of action." Bonin v.
Crepeau, 2005 ME 59, Â¶ 8, 873 A.2d 346.
Order addresses Congress Plaza's Motion, and then the
Defendants' joint Motion.
Plaza's Motion represents that Congress Plaza has never
owned or operated the property at 290 Congress Street.
Congress Plaza has submitted the affidavit of Owen Pickus,
indicating that he, not Congress Plaza, owned the shopping
center, including the parking lot area, as of the date on
which Plaintiff claims to have been injured.
opposition cites an e-mail to Plaintiffs counsel from
Defendants' counsel indicating that Congress Plaza owns
the property. The court trusts that the Pickus affidavit
reflects Defendants' counsel's understanding of
also cites the understanding of Jessica Rice, the former
employee of a laundry in the shopping center, but Plaintiff
has not established that Jessica Rice's testimony
regarding ownership would be admissible in evidence.
Plaintiff has also submitted copies of leases that indicate
that Congress Plaza leased space at 290 Congress Street to
others. The leases do suggest that Congress Plaza has leased
to others the 290 Congress Street property, but as Congress
Plaza points out, these are not authenticated or admissible
in evidence, as required for Rule 56 material, and do not
establish that Congress Plaza had any ownership interest or
maintenance responsibility in the parking lot in which
Plaintiff claims to have fallen.
court concludes that Plaintiff has not effectively countered
Pickus's sworn statement that he owned and controlled the
property, including the parking lot, as of the date at issue,
and that Congress Plaza has not had any ownership interest or
responsibility for the property. Accordingly, Congress
Plaza's Motion for Summary Judgment is granted.
Joint Motion ...