SHELLY BOLSTRIDGE, as Parent Guardian, and Next Friend of CASSANDRA BOLSTRIDGE, PLAINTIFF
STATE OF MAINE DEPARTMENT OF TRANSPORTATION DEFENDANT
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
the Court is defendant's, the Maine Department of
Transportation (MDOT) Motion for Summary Judgment pursuant to
Me. R. Civ. P. 56. Hearing was held October 24, 2016. For the
following reasons, Defendant's motion is granted.
has admitted each and every material fact submitted by the
defendant. The facts can be summarized as follows. On May 16,
2015, Cassandra Bolstridge was driving west on the Grendell
Road in Chapman, Maine. The road ends at a "T"
intersection. Although there was a stop sign at the
intersection, Ms. Bolstridge did not see it and drove
directly through the intersection into a wooded area, and
sustained injuries. At one time there was a sign indicating
that Grendell Road ended in a "T" intersection, but
the sign had previously been knocked over and was awaiting
repair. Had MDOT replaced the sign prior to May 16, 2015, Ms.
Bolstridge would have understood that the road ended and
would not have driven into the wooded area. MDOT is self
insured through the State of Maine's Risk Management
Division and has not purchased commercial insurance that
would provide coverage for plaintiffs claims.
is entitled to summary judgment when the record shows that
there is no genuine issue of material fact and the party is
entitled to judgment as a matter of law. M.R. Civ. P. 56(c);
see also Darlings v. Ford Motor Co., 2003 ME 21,
¶ 14, 817 A.2d 877, 879. To survive a motion for a
summary judgment, the opposing party must produce evidence
that, if produced at trial, would be sufficient to resist a
motion for a judgment as a matter of law. Rodrigm v,
Rodrigue, 1997 ME 99, ¶ 8, 694 A.2d 924, 926.
'"A fact is material when it has the potential to
affect the outcome of the suit.'" Prescott v.
Slate Tax Assessor, 1998 ME 250, ¶ 5, 721 A.2d 169,
172. An issue is genuine if sufficient evidence supporting
the claimed factual dispute exists to require a choice
between the parties' differing versions of the truth at
trial. Kenny v, Dep't of Human
Services, 1999 ME 158, ¶ 3, 740 A.2d 560, 562.
the Court determines whether there is a genuine issue of
material fact by comparing the parties' statement of
material facts and corresponding record references. Corey
v. Norman, Hanson & DeTroy, 1999 ME 196, ¶ 8,
742 A.2d 933, 938. The court will view the evidence in a
light most favorable to the non-moving party. See Steeves
v. Bernstein, Shur, Sawyer & Nelson, P.A., 1998 ME
210, ¶l 1, 718 A.2d 186.
issue for the Court is whether the Plaintiff can maintain a
separate and distinct cause of action under the Maine Tort
Claims Act ("MTCA") such that her negligence action
survives summary judgment review. As a general premise, the
MTCA immunizes "all governmental entities . . .from suit
on any and all tort claims seeking recovery of damages"
and provides the general framework for governmental liability
in Maine. 14 M.R.S. Section 8103. The MTCA provides four
limited exceptions to this immunity. 14 M.R.S. §
8l04-A(1)-(4). Plaintiff argues that two of those exceptions
4. Road construction, street cleaning or repair. §
1. Ownership; maintenance or use of vehicles, machinery and
equipment; G. other machinery or equipment. §
Section 8104-A(4) states:
governmental entity is liable for its negligent acts or
omissions arising out of and occurring (luring the
performance of construction, street cleaning or repair
operations on any highway, town way, sidewalk, parking area,
causeway, bridge, airport runway or taxiway, including
appurtenances necessary for the control of those ways
including, but not limited to, street signs, traffic lights,
parking meters and guardrails. A governmental entity is not
liable for any defect, lack of repair or lack of sufficient
railing in any highway, town way, sidewalk, parking area,
causeway, bridge, airport runway or taxiway or in any
exception to apply, the negligent act or omission must have
occurred during the performance of some construction,
cleaning or repair operation or activity. Plaintiff suggests
that the repair operations were "ongoing", in that
it had a duty to make repairs or replace signs in a timely
fashion. This argument fails for a couple of reasons.
the last sentence of clearly states that a government entity
is not liable for ".. .any defect, lack of
repair...". Plaintiffs argument is that MDOT had not
timely repaired or replaced a sign, which is "lack of
the Law Court has addressed the issue of timing of the
injury, with respect to the term "during", and made
it clear the injury must occur during the performance of
repair operations.... both the governmental
entity's negligence and the resulting injury to the
claimant must occur during the course of construction, street
cleaning, or repairs at issue. Rice v. City of
Biddeford,2004 ME 128, P.11; see also Rivard v.
City of Lewiston, 516 A.2d 555, ...