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Canney v. Strathglass Holdings, LLC

Supreme Court of Maine

April 6, 2017


         Reporter of Decisions

          Argued: March 3, 2017

          William C. Herbert, Esq. (orally), Hardy, Wolf & Downing, P.A., Lewiston, for appellant Amy L. Canney

          James B. Haddow, Esq. (orally), Petruccelli, Martin & Haddow, LLP, Portland, for appellee Strathglass Holdings, LLC


          MEAD, J.

         [¶1] Amy L. Canney appeals from a summary judgment entered by the Superior Court (Oxford County, Clifford J.) in favor of Strathglass Holdings, LLC, on Canneys complaint asserting that Strathglass was liable for injuries sustained by her minor child, Nicholai, when he was bitten by a dog kept by Eric Burns, a neighbor who performed on-call maintenance work on properties owned by Strathglass. Canney asserts that the court erred by determining as a matter of law that Burns was not acting within the scope of his employment at the time of the dog bite, and by granting summary judgment on the issue of Strathglasss direct liability. We affirm the judgment.

         I. BACKGROUND

         [¶2] The summary judgment record establishes the following undisputed facts, which are viewed in the light most favorable to Canney, the nonprevailing party. See Remmes v. Mark Travel Corp., 2015 ME 63, ¶ 3, 116 A.3d 466. Strathglass is a Maine limited liability company that owns eight residential rental units in Rumford. At all times relevant to this action, Strathglass rented a unit in a duplex to Canney, who lived there with her thirteen-year-old son Nicholai, and rented the adjacent unit to Eric Burns.

         [¶3] Peter Evans is the sole member of Strathglass. Evans, who lived in Portland and was not always able to directly respond to emergencies or other problems arising at his rental properties, hired Burns to provide on-call maintenance and property management services. In that role, Burns performed tasks such as showing apartments to potential renters, reviewing rental applications and contacting references, delivering written leases to tenants, collecting rent and security deposits, performing repairs, purchasing repair materials, painting, cutting grass, cleaning, and performing inspections of rental units. Burns was given a key to access Strathglasss rental units for maintenance purposes.

         [¶4] Burns did not work from an external office; rather, Strathglass instructed tenants to contact Burns by knocking on the door of his home or calling him on the phone. Burns did not have set hours of employment, but Strathglass hoped that he would address tenants needs as they arose. In return for his work, Burns was paid and was permitted to rent his unit using Section 8 vouchers.

         [¶5] On September 10, 2015, Burnss girlfriends daughter invited Nicholai to use Burnss swimming pool. The pool was behind Burnss unit in a private yard enclosed by a fence and gate. Around this time, Burns was in his home fixing a piece of furniture. While in Burnss yard, Nicholai saw Burns come out of the back door of his unit with his two-year-old male pit bull that he keeps at the unit. Burnss pit bull approached Nicholai and glared at him, making him fearful that the dog might attack. The dog first nipped and then bit down on Nicholais leg. The dog was not restrained prior to biting Nicholai. Burns attempted to separate the dog from Nicholai after the attack. Nicholai suffered serious injuries as a result of the bite. Prior to this event, Burnss dog had not bitten anyone or done anything to suggest to Burns that it was likely to bite someone. Strathglasss member, Evans, had been aware that Burns kept a dog at his unit, but did not believe, and had no objective reason to believe, that Burnss dog was dangerous.

         [¶6] On June 22, 2015, Canney filed a five-count complaint in the Superior Court on behalf of Nicholai against Burns and Strathglass. The complaint alleged that Burns possessed a dog with dangerous propensities; negligently failed to warn Nicholai about the dog; negligently failed to properly and reasonably secure the dog; and "was at all pertinent times the agent, servant or employee of [Strathglass] and was maintaining the property for the benefit of [Strathglass] and in the course of its business."

         [¶7] On January 25, 2016, Strathglass filed a motion for summary judgment, a supporting statement of material facts, and affidavits of Burns and Evans. Canney opposed the motion. See M.R. Civ. P. 56(h)(2). The court granted Strathglasss motion for summary judgment on the grounds that no material facts were in dispute, the bite occurred in an area controlled by Burns, Burns was not acting within ...

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