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O'Brien v. Pickus

Superior Court of Maine, Cumberland

April 15, 2016

KATHLEEN O'BRIEN Plaintiff
v.
OWEN PICKUS and CONGRESS PLAZA, LLC Defendants

          ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

          A. M. Horton, Justice

         This 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 ['"Congress Plaza"'].

         Defendants 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. 7(b)(7).

         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 [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.

         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). 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, ¶ 8, 873 A.2d 346.

         Analysis

         This Order addresses Congress Plaza's Motion, and then the Defendants' joint Motion.

         Congress Plaza's Motion

         Congress 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.

         Plaintiffs 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 ownership.

         Plaintiff 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.

         The 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.

         Defendants' Joint Motion ...


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