ALMIGHTY WASTE, INC. Plaintiff,
MID-MAINE WASTE ACTION CORPORATION Defendant.
ORDER ON DEFENDANT'S SUMMARY JUDGMENT
Gay Kennedy Justice
the court is Defendant Mid-Maine Waste Action
Corporation's motion for summary judgment on Plaintiff
Almighty Waste, Inc.'s negligence claim. For the
following reasons, Defendant's motion is granted.
September 2, 2014, a driver for Plaintiff drove a tractor
truck owned by Plaintiff onto a scale owned and operated by
Defendant, which collapsed causing significant damage to the
truck. (Supp.'g S.M.F. ¶¶ 3-5.) On September 1,
2016, Plaintiff filed a complaint alleging Defendant's
scale was in serious disrepair, had significant rusting, and
was otherwise in such condition that it collapsed.
(Supp.'g S.M.F. ¶¶ 1-2; Pl's Compl. ¶
7.) Plaintiff's only designated expert is expected to
testify only on the subject of costs to repair the truck.
(Supp.'g S.M.F. ¶ 7.) On February 27, 2016,
Defendant filed this motion for summary judgment.
Standard of Review
judgment is appropriate, if based on the parties'
statement of material facts and the cited record, no genuine
issue of material fact exists and the moving party is
entitled to judgment as a matter of law. Bed v. Allstate
Ins. Co., 2010 ME 20, ¶ 11, 989 A.2d 733; Dyer
v. Dep't of Transport., 2008 ME 106, ¶ 14, 951
A.2d 821. "[A] fact is material if it could potentially
affect the outcome of the case." Reliance Nat'l
Indem. v. Knowles Indus. Sews., 2005 ME 29, ¶ 7,
868 A.2d 220. A genuine issue of material fact exists where
the fact finder must choose between competing versions of the
truth. Id. (citing Univ. of Me. Found, v. Fleet
Bank of Me., 2003 ME 20, ¶ 20, 817 A.2d 871). When
deciding a motion for summary judgment, the court reviews the
materials in the light most favorable to the non-moving
party. Dyer, 2008 ME 106, ¶ 14, 951 A.2d 821.
The court will consider "only the portions of the record
referred to, and the material facts set forth in the [M.R.
Civ. P. 56(h)] statements." F.R. Carroll, Inc. v. TD
Bank, N.A., 2010 ME 115, ¶ 8, 8 A.3d 646 (internal
quotation marks omitted). The party opposing a summary
judgment must point to specific facts showing that a factual
dispute does exist in order to avoid a summary judgment.
Watt v. Unifirst Corp., 2009 ME 47, ¶ 21, 969
A.2d 897; Reliance Nat'l Indem., 2005 ME 29,
¶ 9, 868 A.2d 220.
support of the motion for summary judgment, Defendant argues
Plaintiff is unable to prove negligence because they have not
designated an expert on the issues of breach of duty of care
or causation. (Def.'s Mot. Summ. J. 4.) The deadline for
Plaintiff's designation was December 26, 2016 (set by the
scheduling order.) On December 22, 2016, Plaintiff designated
their only expert witness to be a damage appraiser who is
expected to testify about the costs to repair the truck.
(Supp/g S.M.F. ¶ 7.) Plaintiff maintains that an expert
is not required to prove negligence in this case. (Pl.'s
Opp'n to Def.'s Mot. Summ. J. 4.) Instead,
Plaintiff's evidence to prove cause is their driver's
personal observation that the scale was comprised of rusted
pieces of steel, and an alleged conversation that their
driver had with Mid-Maine employees who said that they
"knew the scale was junk" and that they were
"surprised the scale lasted as long as it did."
(Opp. S.M.F. ¶ 5.) Defendant provided affidavits from
these employees denying making those statements. (Def.'s
Reply S.M.F. ¶ 5.) Plaintiff argues they are not
claiming that the scale malfunctioned, but that rust caused
its collapse. (Pl's Opp'n to Def.'s Mot. Summ. J.
are required to establish a prima facie case for duty,
breach, causation, and damages to survive summary judgment.
Maddocks v. Whitcomb, 2006 ME 47, ¶ 10, 896
A.2d 265. Expert testimony is required where a matter in
issue is "within the knowledge of experts only, and not
within the common knowledge of lay [persons]."
Bannon v. Atl. Comfort Sys., No. CV-15-0084, 2017
Me. Super. LEXIS 67, at *9 (Apr. 19, 2017) (quoting Cyr
v. Giesen, 150 Me. 248, 252, 108 A.2d 316, 318 (1954).)
Expert testimony may not be necessary, however, "where
the negligence and harmful results are sufficiently obvious
as to lie within common knowledge." Bannon,
2017 Me. Super. LEXIS 67, at *9 (quoting Cyr, 150
Me. at 252, 108 A.2d at 318); Walter v. Wal-Mart Stores,
Inc., 2000 ME 63, ¶ 31, 748 A.2d 961, 972 (it does
not take an expert to know that a pharmacy filling a
prescription with the wrong drug and failing to take the
steps in place to check for the wrong drug is negligence);
Bannon, 2017 Me. Super. LEXIS 67, at *9 (the
standard of care that an HVAC servicer would owe when
removing a key component of a humidifier, rendering the
humidifier inoperable, and failing to replace it or inform
the customer falls sufficiently within the sphere of common
knowledge so as not to require an expert witness.)
argues that it is within the knowledge of a factfinder to
determine that rust and disrepair caused the scale to
collapse. (Pl's Opp'n to Def.'s Mot. Summ. J. 4.)
However, the issue of cause in this case includes not just
the external rust that could have been visible to
Plaintiff's driver, but also the adequate maintenance,
repair, and inspection of a commercial machine. A layperson
has no basis on which to determine these issues. See
Sirles v. CPM Constructors, No. CV-11-408, 2012 Me.
Super. LEXIS 113, at *6 (Aug. 9, 2012.) Defendant does not
dispute their duty to maintain the scale, and admits that the
scale was externally rusty. (Def.'s Reply to Pl's
Opp'n to Def.'s Mot. Summ. J. 2, 5.) However, while
Plaintiff's alleged observation of rust could establish
that the scale's collapse was foreseeable, to ask a
factfinder to also infer actual causation from conflicting
and inconclusive evidence from lay witnesses would replace
fact-finding with conjecture. See Tolliver v. DOT,
2008 ME 83, ¶ 44, 948 A.2d 1223. Accordingly, the court
concludes that expert testimony is required to prove
liability. Even if this court were to decide that expert
testimony was not necessary and that Defendant's
employee's alleged statements were admissible pursuant to
Maine Rule of Evidence 801(d)(2)(D), Plaintiff does not claim
that they have knowledge as to the maintenance, repair, and
inspection of the scale.
motion for summary judgment is GRANTED.
Clerk is directed to enter this Order on the civil docket by
reference pursuant to ...