ORDER ON DEFENDANT'S MOTION FOR SUMMARY
Quintel IV, LLC has moved for summary judgment on Plaintiffs
Christopher and Patricia Papkee's claims for premises
liability due to negligence and loss of consortium. The
motion is opposed by Plaintiffs. The court elects to decide
the motion without oral argument, see M.R. Civ. P. 7(b)(7).
on the entire record, Defendant's motion for summary is
purposes of summary judgment, the following facts are not in
dispute. Plaintiffs Christopher and Patricia Papkee are
husband and wife. (Pis. Add'l S.M.F. ¶ 12; Def Reply
S.M.F. ¶ 12.) On November 9, 2009, Mr. Papkee stopped
lunch at a McDonald's restaurant operated by Defendant
located on St. John Street in Portland, Maine (the "St.
John Street McDonald's"). (Id. ¶ 13.)
After ordering food, Mr. Papkee went to the restroom in the
restaurant. (Id. ¶ 14.) When Mr. Papkee began
to pull toilet paper from the toilet paper dispenser, Mr.
Papkee felt a sharp object poke his hand. (Id.
¶ 15.) When Mr. Papkee removed his hand a hypodermic and
syringe needle fell out of the dispenser and jabbed his hand
again. (Id. ¶ 16.) The syringe of the needle
appeared to contain blood. (Id. ¶ 17.) Mr.
Papkee alerted an employee or manger who in the restroom at
that time. (Id. ¶¶ 20-21.) A janitor
opened the toilet paper dispenser and found a spoon with a
white powdery substance on it. (Id. ¶ 22.) Mr.
Papkee sought medical treatment was prescribed medications to
reduce the risk of contracting HIV/AIDS. (Id.
¶¶ 25, 27.) Mr. Papkee suffered a number of side
effects from the medication and other pain and suffering and
was unable to work as a result of the incident. (Id.
two-count complaint, filed October 30, 2015, alleges that
Defendant is liable for premises liability and loss of
consortium. Plaintiffs amended their complaint on December 7,
2015, but did not change the theories of liability. Defendant
moved for summary judgment on all of Plaintiffs' claims
on June 3, 2016. Plaintiffs filed their opposition to summary
judgment on July 1, 2016. After an enlargement of time, Defendant
filed its reply on July 15, 2016.
Standard of Review
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.£d 821. "A material fact is one that can
affect the outcome of the case. A genuine issue of material
fact exists when the [Tact 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). "To withstand a motion for summary
judgment, the plaintiff must establish a prima facie case for
each element of their cause of action." Watt v.
UniFirst Corp., 2009 ME 47, ¶ 21, 969 A.2d 897
(internal citation and quotation marks omitted). If a
plaintiff fails to present sufficient evidence on the
essential elements, then the defendant is entitled to a
summary judgment. Id.
Rule of Civil 56 requires that motions for and opposition to
summary judgment must be supported separate, short, and
concise statements of material facts. M.R. Civ. P.
56(h)(1)-(2). Each assertion of fact set forth in a statement
of material facts must be supported by a citation to the
specific page or paragraph of identified record evidence
supporting the assertion. M.R. Civ. P. 56(h)(4). The record
evidence cited must be "of a quality that could be
admissible at trial." Levine v. R.B.K. Caly
Corp., 2001 ME 77, ¶ 6, 770 A.2d 653. The court may
disregard any assertions of fact not properly supported. M.R.
Civ. P. 56(h)(4).
of the complaint sets forth a claim against Defendant for
elements of premises liability, as with any claim for
negligence, include: (1) duty, (2) breach of that duty, (3)
causation, and (4) harm to the plaintiff." Durham v.
HTH Corp., 2005 ME 53, ¶ 8, 870 A.2d 577.
A possessor of land owes a duty of reasonable care to provide
safe premises to all persons lawfully on the land and to
guard against all reasonably foreseeable dangers. Coffin
v. Lariat Assocs., 2001 ME 33, ¶ 8, 766
A.2d 1018. A possessor of land breaches that duty and is
liable for any physical harm caused to persons lawfully on
the land by a dangerous condition on the land if: (a) the
possessor of land knew or by the exercise of reasonable care
should have discovered the dangerous condition and should
have realized that it involved an unreasonable risk of harm
to others; (b) the possessor of land should have expected
that others would not discover the danger or would fail to