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Days Auto Body, Inc. v. Town of Medway

Supreme Court of Maine

August 2, 2016

DAYS AUTO BODY, INC.
v.
TOWN OF MEDWAY et al.

          Argued: May 5, 2016

         On the briefs:

          Arthur J. Greif, Esq., and Julie D. Farr, Esq., Gilbert & Greif, P.A., Bangor, for appellant Days Auto Body, Inc.

          John J. Wall, III Esq., Monaghan Leahy, LLP, Portland, for appellee Town of Medway

          Gerard O. Fournier, Esq., and Heidi J. Hart, Esq., Richardson, Whitman, Large & Badger, Bangor, for appellee Emery Lee and Sons, Inc.

         At oral argument:

          Arthur J. Greif, Esq., for appellant Days Auto Body, Inc.

          John J. Wall, III Esq., for appellee Town of Medway

          Gerard O. Fournier, Esq., for appellee Emery Lee and Sons, Inc.

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          GORMAN, J.

         [¶1] Days Auto Body, Inc., (Days Auto) appeals from summary judgments entered in the Superior Court (Penobscot County, Anderson, J.) in favor of the Town of Medway (the Town) and Emery Lee and Sons, Inc., (ELS) on Days Autos negligence claims arising out of the response to a fire at its business location. Days Auto contends that the trial court erred in determining that the Town and ELS are immune from Days Autos claims pursuant to the Maine Tort Claims Act (MTCA), 14 M.R.S. §§ 8101-8118 (2015). We affirm the judgments.

         I. BACKGROUND

         [¶2] Viewed in the light most favorable to Days Auto, the nonprevailing party, the summary judgment record establishes the following facts. See Remmes v. Mark Travel Corp., 2015 ME 63, ¶ 3, 116A.3d 466. While responding to a fire at Days Autos shop on October 3, 2011, the Towns fire department filled hoses with water before the nozzles were opened, refused to allow firefighters to enter the building, sprayed water on a fireproof door, refilled fire trucks from a single hydrant instead of from two other available hydrants or from the nearby Penobscot River, drove a truck toward a water holding tank in such a way that it would be impossible to unload water into the holding tank, and connected a water hose to a nozzle improperly. These actions allegedly prevented the Town from limiting the damage that the fire caused to Days Autos property.

         [¶3] ELS is a general contracting and excavating business in Millinocket. Emery Lee, ELSs owner and manager, received a call from someone at the Towns fire department directing him to report to the fire scene with an excavator to assist with the effort to extinguish the fire. When Lee arrived, members of the fire department directed him to take various actions using the excavator, including taking down walls and moving a large carrying beam from the center of what remained of the building.[1] After about four hours, the fire department indicated to Lee that the fire was under control and that he could leave the scene. ELS submitted a bill to the Town for its work at the fire scene based on four hours of work at an hourly rate.

         [¶4] Two years after the fire, Days Auto filed its complaint, alleging that the Town and ELS used vehicles, machinery, and equipment negligently in the course of their response to the fire.[2] The Town and ELS each moved for a summary judgment, claiming immunity from Days Autos suit pursuant to the MTCA.

         [¶5] The court granted both motions. The court first concluded that the Town is immune from Days Autos suit because the exception to governmental tort claims immunity upon which Days Auto relied-for "[o]wnership[, ] maintenance or use of vehicles, machinery and equipment"- does not apply. See 14 M.R.S. § 8104-A(1). The court also determined that the Town is entitled to discretionary function immunity pursuant to 14 M.R.S. § 8104-B(3), so that even if the "vehicles, machinery and equipment" exception did apply, the Town would still be immune from Days Autos suit. With regard to ELS, the court concluded that discretionary function immunity applied because when ELS assisted the Town with the fire, it was, for purposes of the MTCA, acting as an employee of the Town and was engaged in a discretionary function. See 14 M.R.S. §§8102(1), 8111(1)(C). Days Auto filed this appeal.

         II. DISCUSSION

         A. ...


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