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West v. Jewett & Noonan Transportation, Inc.

Superior Court of Maine, Cumberland

July 11, 2017

ERIK WEST, KATHLEEN WEST, JOHN PRIDE, and JOANN PRIDE, Plaintiffs,
v.
JEWETT & NOONAN TRANSPORTATION, INC., Defendant.

          ORDER ON DEFENDANT'S SECOND MOTION FOR SUMMARY JUDGMENT

          A.M. HORTON JUSTICE, SUPERIOR COURT.

         Defendant Jewett & Noonan Transportation, Inc.'s Second Motion for Summary Judgment is before the court, together with Plaintiffs' opposition and Defendant's reply. The court elects to decide the Second Motion without oral argument. See M.R. Civ. P. 7(b)(7).[1]

         The Second Motion seeks summary judgment on the Plaintiffs' claims for nuisance and common law strict liability, and on Plaintiffs request for punitive damages.

         The underlying facts as well as the standard of review on summary judgment have been addressed in the court's prior summary judgment order. However, the Plaintiffs have submitted evidence that reasonable factfinder could decide was sufficient to show that persons or entities acting as agents of the Defendant deliberately misled the Plaintiffs and the Maine Department of Environmental Protection about their intentions to clean up the oil spill on Plaintiffs' property, pretending to engage in cleanup activity, to save the cost of a full cleanup.

         1. Nuisance:

         Defendant's Second Motion contends that it is entitled to summary judgment on Plaintiffs common law nuisance claim because Plaintiffs have conceded that Defendant did not intentionally cause oil to be spilled onto Plaintiffs property. Defendant is correct that the Plaintiffs have not made a prima facie showing that Defendant acted intentionally in causing the oil spill.

         However, Maine law does not define intent solely in terms how a nuisance began-intentionally continuing a nuisance that may have been created unintentionally can give rise to common law nuisance liability. The Law Court has said that the intent element of the common law nuisance tort requires proof that "the defendant has created or continued the condition causing the interference with full knowledge that the harm to the plaintiffs interests are occurring or are substantially certain to follow. " See Charlton v. Town of Oxford, 2001 ME 104, ¶37 n.11, 774 A.2d 366, 378; accord, Johnson v. Maine Energy Recovery Co., Ltd. Partnership, 2010 ME 52, ¶15, 997 A.2d 741, 745 (same).

         Thus, even if a common nuisance was created unintentionally, the party responsible for creating it can become liable by intentionally continuing it, which is exactly what the Plaintiffs claim the Defendant, acting through agents, did. Plaintiffs have propounded admissible evidence sufficient to persuade a reasonable factfinder that Defendant, through agents, is liable for continuing a substantial interference with

          Plaintiffs' property. Defendant's Second Motion is denied as to Plaintiffs' common law nuisance claim.

         Strict Liability:

         Defendant also seeks summary judgment on Plaintiffs' strict liability claim.

         The common law does not impose strict liability except in connection with what the Second Restatement of Torts terms "abnormally dangerous activities." The Second Restatement states the "general principle" as follows:

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the ...

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