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Nightingale v. R.J. Grondin & Sons

Superior Court of Maine, Kennebec

January 6, 2017

JARED NIGHTINGALE, individually and as Personal Representative of the Estate of Karen Nightingale, Plaintiff,
v.
R.J. GRONDIN & SONS, et al, Defendants.

          ORDER

          M. Michaela Murphy, Justice

         Plaintiff Jared Nightingale brought the present action against R. J. Grondin & Sons, the Maine Department of Transportation ("MDOT"), the State of Maine, and the City of Augusta following the death of Plaintiffs wife, Karen Nightingale, in a motorcycle accident on July 6, 2014 on Western Avenue in Augusta, Maine. Plaintiff contends that Ms. Nightingale's motorcycle hit a pothole located in the travel lane on Western Avenue, causing her to be thrown from her bike, and that she died several days later as a result of her injuries. The incident occurred at a time of ongoing roadwork. MDOT had contracted with R. J. Grondin & Sons ("Grondin") to perform construction work including road repairs.

         Plaintiff has brought claims for wrongful death pursuant to 18-A M.R.S. § 2-804(b) and (c), survivor's claim pursuant to 18-A M.R.S. § 3-817, and Maine pothole law 23 M.R.S. § 3655. The pothole claim alleged specific conduct by the City of Augusta, and no other defendants. The City of Augusta, however, was dismissed by stipulation of the parties on February 16, 2016.

         Defendants move for summary judgment against the remainder of Plaintiffs claims and move in limine to exclude the expert testimony of David Peshkin. Plaintiff requests to incorporate a later filed affidavit of David Peshkin, and the accompanying opposition to Defendants' motion in limine, into his opposition to Defendants' motion for summary judgment. Plaintiff contends that logistics including his counsel's travel schedule did not allow for Mr. Peshkin's affidavit to be filed with Plaintiffs opposition to the motion for summary judgment. Defendants oppose the motion to incorporate as it is not properly part of the record on summary judgment and contains new and contradictory testimony from Mr. Peshkin.

         The court grants Plaintiffs motion to incorporate as Defendants will suffer no prejudice and it aids in a complete adjudication of Defendants' motion for summary judgment.

         Additionally, for the reasons discussed below, the court denies Defendants' motion in limine to exclude Mr. Peshkin's testimony, grants Defendants' motion for summary judgment as to Plaintiffs claims against the State and MDOT, and denies Defendants' motion for summary judgment as to Grondin.

         I. 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, and there is a genuine issue when there is sufficient evidence for a fact-finder to choose between competing versions of the' fact." Lougee Conservancy v. CitiMortgage, Inc., 2012 ME 103, ¶ 11, 48 A.3d 774 (quotation omitted). "When facts, though undisputed, are capable of supporting conflicting yet plausible inferences- inferences that are capable of leading a rational fact-finder to different outcomes in a litigated matter depending on which of them the fact-finder draws-then the choice between those inferences is not for the court on summary judgment." Id. (quotation omitted). When deciding a motion for summary judgment, the court reviews the evidence in the light most favorable to the non-moving party. Dyer, 2008 ME 106, ¶ 14, 951 A.2d 821 (citations omitted).

         To survive a defendant's motion for summary judgment, a plaintiff must produce evidence that, if produced at trial, would be sufficient to resist a motion for a judgment as a matter of law." Stanton v. Univ. of Maine Sys., 2001 ME 96, ¶ 6, 773 A.2d 1045 (quotation omitted). A plaintiff must establish a prima facie case for each element of the cause of action. Id. (citation omitted)." A judgment as a matter of law in a defendant's favor is proper when any jury verdict for the plaintiff would be based on conjecture or speculation." Id. (citation omitted).

         II. Discussion

         Defendants argue that MDOT and the State are immune from liability pursuant to the Maine Tort Claims Act. Defendants also assert a number of arguments as to why summary judgment should be granted in favor of Grondin. Specifically, they contend that: 1) Grondin was not a possessor of the land at issue; 2) as a non-possessor it did not negligently create a dangerous condition; 3) even if Grondin was a possessor of the land, it did not breach a duty to warn Ms. Nightingale about the pothole; 4) even if Grondin was a possessor of the land, Plaintiff did not establish that Grondin breached a duty of care towards Ms. Nightingale; and 5) there is insufficient evidence that Grondin's alleged negligence caused Ms. Nightingale's injury. Defendants' argument that Plaintiff failed to establish Grondin owed a duty of care towards Ms. Nightingale is interwoven with the arguments in their motion in limine to exclude Mr. Peshkin's expert opinion. The court addresses each of these arguments in turn.

         A. Whether MDOT and the State of Maine are Immune

         Defendants argue that the State and MDOT are immune from liability for the reasons set forth in Paschal v. City of Bangor, 2000 ME 50, 747 A.2d 1194. Specifically, the State and MDOT could be liable for negligent conduct arising from their street cleaning or repairs, but cannot be liable for defects in the road that were not caused by their repairs or street cleaning. Plaintiff responds that the complaint against the State and MDOT is not only that the road was defective or lacked repair, but also that MDOT was not performing the road construction or repair with due care by its failure to inspect. Plaintiff contends that Paschal is not on point because the City, in that case, had simply not gotten to the area where the plaintiff hit a pothole. In the present case, one of the Defendants' own experts testified that MDOT had an independent duty to carry out a safety inspection on Wednesday afternoon, the last day of work before the 4th of July weekend, and that the failure to spot the pothole was a failure of the duty to keep the roadway safe for the traveling public.

         All governmental entities are "immune from suit on any and all tort claims seeking recovery of damages" except as specifically provided by statute. See 14 M.R.S.A. § 8103(1). Plaintiff seeks to recover against the State and MDOT pursuant to the statutory exception for "negligent acts or omissions arising out of and occurring during the performance of construction, street cleaning, or repair operations[.]" 14 M.R.S.A. § 8104-A(4). "Pursuant to section 8104-A(4), however, "[a] governmental entity is not liable for any defect [or] lack of repair" of a roadway. Id. This exception, like all statutory exceptions to governmental immunity, must be construed narrowly. Paschal v. City of Bangor, 2000 ME 50, ¶ 10, 747 A.2d 1194 (citation omitted).

         Interpreting the exception to governmental immunity in Section 8104-A(4), Paschal determined that the Superior Court had erred by failing to grant summary judgment in favor of the City of Bangor because the plaintiff had "failed to produce sufficient evidence to support a finding of negligence on the part of the City in any street cleaning or repair operation proximately causing his injury." 2000 ME 50, ¶ 13, 747 A.2d 1194. Similar to the present case, Paschal involved an injured motorcyclist seeking damages against a governmental entity. Id. ¶¶ 2-3. Four days before the plaintiffs injury, a heavy rain fell washing debris into the City's streets. Id. The City began clearing the debris, but suspended its operations for the weekend before reaching the spot where plaintiff was injured. Id. ¶ 3. Paschal explained that summary judgment was warranted against plaintiffs claim because plaintiffs complaint only alleged the City failed to clear the debris. Id. ¶ 12. It was not argued, and there was no evidence, that the sand and gravel on the roadway were caused by the City's negligence during street cleaning. Id. "The City could be liable under section 8104-A only if, during the course of street cleaning or repair, it negligently caused the debris to accumulate in the street." Id

         Here, given the narrow construction the court must give to the exception, the court determines that no reasonable juror could conclude that the State or MDOT's street repairs or construction caused the pothole that injured Ms. Nightingale. Bruce Knight, an individual who was riding with Ms. Nightingale, testified that the area where Ms. Nightingale hit the pothole was part of the old road on Western Avenue "that was there before they started the construction." (Knight Dep. 11:1-12:11.) Mr. Knight testified that he had been on that road several times before the accident, with the most recent being probably being the day before the accident. (Id.) Similarly, Plaintiff testified that the accident occurred "at the beginning of the construction area. I do not consider this area to be actually where construction is going on... [b]ecause it hasn't been torn up yet" and it was just regular pavement that hadn't been touched. (J. Nightingale Dep. 30:15-24; see also Grondin's Answers to Plaintiffs Interrogatory No. 16 (closest work to the accident site was 150 feet away); Bearce Dep. 22:19-23:17, 27:10-10 (same).)

         While Plaintiff presented testimony that tree limbing took place near the scene of the accident in October of 2013, there is no evidence that the tree limbing was conducted negligently or that this proximately caused the pothole to form in July of 2014. (Pl.'s A.S.M.F. ¶¶ 77-78.) Similarly, Plaintiffs evidence that during April and May of 2014, two trenches were dug across Western Avenue near the site of the accident does not save his claim. (See id. at 80-82.) Plaintiff did not allege or produce evidence demonstrating that these activities were conducted negligently or that these activities caused the pothole to form. The testimony from Plaintiffs expert, David Peshkin, that it seems to him that the work itself created some of the damage ...


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