DAYS AUTO BODY, INC.
TOWN OF MEDWAY et al.
Argued: May 5, 2016
J. Greif, Esq., and Julie D. Farr, Esq., Gilbert & Greif,
P.A., Bangor, for appellant Days Auto Body, Inc.
J. Wall, III Esq., Monaghan Leahy, LLP, Portland, for
appellee Town of Medway
O. Fournier, Esq., and Heidi J. Hart, Esq., Richardson,
Whitman, Large & Badger, Bangor, for appellee Emery Lee
and Sons, Inc.
J. Greif, Esq., for appellant Days Auto Body, Inc.
J. Wall, III Esq., for appellee Town of Medway
O. Fournier, Esq., for appellee Emery Lee and Sons, Inc.
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
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
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.
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. 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.
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. The Town and ELS each moved for a summary
judgment, claiming immunity from Days Autos suit pursuant to
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