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Braden v. Granite Corporation Medical Center

Superior Court of Maine

November 16, 2017



          Daniel I. Billings, Justice

         This matter is before the Court on Defendant's Motion for Summary Judgment and Plaintiff's Motion for Spoliation.

         I. Background

         A. The Fall

         In the summer of 2011, renovations were being made to Gilbert Elementary School in Augusta ("the Project"). (S.M.F. ¶ 1; Add. S.M.F. ¶ 1). Defendant, Granite Corporation, was subcontracted to do the HVAC work on the Project. (S.M.F. ¶ 5). In 2011 Kevin Purnell was, and still is, the President of Granite Corporation. (S.M.F. ¶ 6). At the time, Charles D. Braden, Jr., Plaintiff, was employed by Central Maine Drywall, another subcontractor on the Project. (S.M.F. ¶¶ 2, 4). The General Contractor ("GC") on the Project was S.J. Wood Construction Co., Inc. (S.M.F. ¶ 3).

         On August 8, 2011, Plaintiff was working on the Project, installing a metal grid for a suspended ceiling about 12 feet above the floor. (Add. S.M.F. ¶ 14). Prior to entering the hallway where the work was to be performed, Plaintiff and his co-workers looked down the hall for trip hazards. (Add. S.M.F. ¶ 17). To perform his job, Plaintiff wore stilts that were about 3 feet high. (Add. S.M.F. ¶ 20). While hanging the ceiling grid, Plaintiff fell and hit the ground. (Add. S.M.F. ¶ 24). His co-workers pointed out a puddle of water on the floor, which all of them noticed for the first time. (Add. S.M.F. ¶¶ 25, 20). Plaintiff's stilts were wet. (Add. S.M.F. ¶ 30). Plaintiff looked up and saw water dripping off a piece of the HVAC system. (Add. S.M.F. ¶¶ 27-28).

         B. Assigning Blame After the Fact

         Plaintiff told the GC's on-site supervisor that he slipped and fell in a puddle of water. (Add. S.M.F. ¶ 31). Plaintiff testified that the supervisor blamed "the plumbers" for the puddle, stating that he had ordered the "HVAC plumbers" several times to put buckets under leaks. (S.M.F. ¶ 8; Add. S.M.F. ¶ 32). Plaintiff claims that on-site, Defendant and its employees were referred to as "plumbers," and that Mr. Purnell described Defendant's work on the Project as "plumbing" in an email. (Add. S.M.F. ¶ 6; See Pl's Ex. E).

         Defendant stated that to perform its job, all the water had to be purged from the HVAC system. (S.M.F. ¶ 10). Defendant asserts that the system was purged in June, and remained purged and not "recharged" with water until after Plaintiff's fall. (S.M.F. ¶¶ 11-13). However, in a July "Charge Proposal" to the GC, Mr. Purnell stated Defendant needed to "drain piping" in order to install ductwork. (Add. S.M.F. ¶ 7). Additionally, Defendant's employees may have used a water and soap solution to test the pipes for leaks throughout the summer. (Add. S.M.F. ¶¶ 8-13). Lastly, in a handwritten note from the week before the fall, the GC's supervisor informed his superior that parts of the HVAC plumbing had leaked after being tested, and the supervisor wanted to ensure that Defendant received this information. (Add. S.M.F. ¶ 33; See Pl's Ex. F).

         C. Destruction of Documents

         Defendant had knowledge of a potential claim regarding Plaintiff's fall through three channels: an October 7, 2011 letter from Plaintiff's worker's compensation supervisor; a January 4, 2012 Notice of Claim served upon Defendant in connection with this litigation; and notification by Defendant's attorney to Mr. Purnell roughly six months after the fall.

         Two years later, on or around July 30, 2014, Defendant's computer crashed, destroying the only electronic records of the Project. Upon examination in 2017 by a computer recovery specialist, only two files were recovered from the crashed computer: "Time by Job Detail" and "Item Actual Cost Detail."

         Defendant's standard retention policy was to move paper files to the attic for storage approximately two years after completion of a project. In August 2014, when Defendant's air conditioner in the attic was being serviced, Defendant told employees to discard any wet or damaged files in the attic. Mr. Purnell did not personally examine all files discarded at that time, and therefore cannot affirmatively state whether the Project's files were discarded then. However, Mr. Purnell personally searched for the paper files requested by Plaintiff (employee time cards and the "Project Book") in 2017 and could not locate them.

         The time cards would show detail about the tasks done each day by each of Defendant's employees. The Project Book would show the scope of the work, specifications, drawings, and task lists of items to be accomplished. The Time by Job Detail shows each task category, the employee who performed the work, and the date and hours spent on the work. (See Pl's Ex. H). Mr. Purnell states that all the information on the ...

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