AMY L. CANNEY
STRATHGLASS HOLDINGS, LLC
Argued: March 3, 2017
William C. Herbert, Esq. (orally), Hardy, Wolf & Downing,
P.A., Lewiston, for appellant Amy L. Canney
B. Haddow, Esq. (orally), Petruccelli, Martin & Haddow,
LLP, Portland, for appellee Strathglass Holdings, LLC
ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
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.
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.
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.
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.
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.
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."
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 ...