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Cousins v. Higgins

United States District Court, D. Maine

June 28, 2018

ROBERT L. COUSINS, et al., Plaintiffs,
v.
KEITH HIGGINS, et al., Defendants

          RECOMMENDED DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          John C. Nivison U.S. Magistrate Judge.

         In this matter, Plaintiffs allege that Defendants were negligent and violated their civil rights in connection with a fire that destroyed their home, restaurant and adjacent property on December 4, 2013. The matter is before the Court on Defendants' Amended Motion for Summary Judgment. (Defendants' Amended Motion for Summary Judgment, ECF No. 77.) Through their motion, Defendants assert that Plaintiffs have failed to demonstrate a factual basis for their claims, and that Plaintiffs' claims are barred by state and federal immunity doctrines.

         Defendants consist of the Town of Tremont, the Tremont Volunteer Fire Department, Keith Higgins, Heath Higgins, Samuel Chisolm, Colton Sanborn, Tadd Jewett, Mathew Lindsley, and Matthew Tetreault. The pending claims are set forth in Count II (equal protection), Count IV (substantive due process), Count VIII (emotional distress), and Counts XI - XII (negligence).

         Following a review of the record and after consideration of the parties' arguments, I recommend the Court grant Defendants' motion.

         Summary Judgment Standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “After the moving party has presented evidence in support of its motion for summary judgment, ‘the burden shifts to the nonmoving party, with respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact reasonably could find in his favor.'” Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir.1998)).

         A court reviews the factual record in the light most favorable to the non-moving party, resolving evidentiary conflicts and drawing reasonable inferences in the non-movant's favor. Hannon v. Beard, 645 F.3d 45, 47-48 (1st Cir. 2011). If a court's review of the record reveals evidence sufficient to support findings in favor of the non-moving party on one or more of his claims, a trial-worthy controversy exists and summary judgment must be denied as to any supported claim. Id. Unsupported claims are properly dismissed. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) (“One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses.”).

         The Summary Judgment Record

         When presented with a summary judgment motion, a court ordinarily considers only the facts included in the parties' statements of material facts, which statements must be supported by citations to evidence of record. Federal Rule of Civil Procedure 56(c) and District of Maine Local Rule 56(b) - (d) require the specific citation to record evidence. In addition, Local Rule 56 establishes the manner by which parties must present their factual statements and the evidence on which the statements depend. A party's pro se status does not relieve the party of the obligation to comply with the court's procedural rules. Ruiz Rivera v. Riley, 209 F.3d 24, 27 - 28 & n. 2 (1st Cir. 2000); Marcello v. Maine, 489 F.Supp.2d 70, 77 (D. Me. 2007).

         By rule, a party seeking summary judgment must file, in addition to its summary judgment motion, a supporting statement of material facts setting forth each fact in a separately numbered paragraph, with each factual statement followed by a citation to evidence of record that supports the factual statement. D. Me. Loc. R. 56(b). A party opposing a motion for summary judgment must file an opposing statement in which it admits, denies, or qualifies the moving party's statements by reference to each numbered paragraph, with citations to supporting evidence, and in which it may set forth additional facts, in separately numbered paragraphs, with citation to supporting evidence. D. Me. Loc. R. 56(c). If an additional statement is introduced by the non-moving party, then the moving party must file a reply statement in which it admits, denies, or qualifies the non-moving party's additional statements by reference to each numbered paragraph, with citations to supporting evidence. D. Me. Loc. R. 56(d).

         “Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.” D. Me. Loc. R. 56(f). Additionally, “[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment.” Id. Finally, “[t]he court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts.” Id.

         Defendants filed a statement of material facts in support of their motion. (ECF No. 76.) In support of each individual statement, Defendants cited record evidence, and attached to their statement the cited evidence. Defendants, therefore, have satisfied the requirements of Local Rule 56. Plaintiffs have not complied with the Rule. Specifically, Plaintiffs have not filed a direct response to Defendants' statement of material facts. Under the Local Rule, Defendants' statements are “deemed admitted” because Plaintiffs failed to dispute Defendants' statements - by denying or qualifying the statements, and by citing record evidence to support their denials and qualifications. D. Me. Loc. R. 56(f). Additionally, while Plaintiffs have provided a competing factual narrative (i.e., the portion of their opposition labeled “facts” in which they set forth 70 statements), none of the individual statements in the narrative is followed by a citation to record evidence. By Rule, “[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment.” Id.

         In their summary judgment submission, Plaintiffs include factual statements that could conceivably be material to the summary judgment assessment. Plaintiffs, however, do not cite to supporting record evidence. Without citation to the record, Plaintiffs' assertions do not constitute record evidence for purposes of summary judgment. “[T]he Court is required to maintain a strict neutrality between opposing parties and even though a more forgiving reading may be appropriate for a pro se party in the summary judgment context, it is also true that ‘[j]udges and magistrate judges who review these filings must be able to rely on procedural rules so as to avoid becoming the lawyer for the unrepresented [party] or devoting an excessive portion of their time to such cases.'” United States v. Baxter, 841 F.Supp.2d 378, 383 (D. Me. 2012) (quoting Clarke v. Blais, 473 F.Supp.2d 124, 129 (D. Me. 2007)).

         Nevertheless, the factual assertions contained in the verified complaint and affidavits filed in connection with the summary judgment motion can be considered. That is, where a pro se litigant has failed to comply strictly with the summary judgment rules, this Court has considered the sworn assertions of record. See Clarke v. Blais, 473 F.Supp.2d 124, 128 - 30 (D. Me. 2007) (“The First Circuit has not addressed this notice debate directly, but has said, in the summary judgment context, that unrepresented plaintiffs' opposing affidavits and opposition papers are to be read ‘liberally.'” (citing Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399, 401 (1st Cir. 1988), and Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 27 (1st Cir. 1980)); Demmons v. Tritch, 484 F.Supp.2d 177, 182 - 83 (D. Me. 2007). In this case, in addition to the summary judgment record, I have considered Plaintiffs' verified complaint and the affidavits filed by Plaintiffs in this action to the extent the allegations in the complaint and the assertions in the affidavits include facts that would be admissible in evidence and otherwise comply with the requirements of Federal Rule of Civil Procedure 56(c)(4).[1]

         Summary Judgment Facts

         On December 4, 2013, a fire of undetermined origin destroyed Plaintiffs' restaurant and residence in Tremont, Maine. (Defendants' Stmt. of Material Facts (DSMF) ¶ 1, ECF No. 76.) A notable feature of the premises was a 40-foot tower/lighthouse built by Plaintiff Robert Cousins within the existing footprint of the preexisting restaurant/residence. (Id. ¶¶ 3, 5, 6.) The fire began on the top floor of the tower. Including the ground floor, the tower was a five story structure.

         According to the report of the State Fire Marshal's Office, Plaintiff Judy Cousins reported that the fire started at approximately 7:15 p.m. (Id. ¶ 8.) Robert Cousins told investigators that he attempted to put out the fire with a fire extinguisher, and told Judy Cousins to dial 9-1-1. (Id. ¶¶ 9, 10.)

         The record reflects that a woman named Paula Farrell called 9-1-1 at 7:44 p.m., and reported that the top of the lighthouse tower was “all in flames-it's all on fire-it's all engulfed.” (Declaration of Nicholas Hardwick, Southwest Harbor Police Department, ECF No. 76-10/82-3; Ex. 4 to Hardwick Declaration (removable media file).) Upon receipt of Ms. Farrell's report, an officer sent an emergency tone to the Tremont Volunteer Fire Department at 7:45 p.m., reporting that the tower was on fire. (DSMF ¶ 12.)

         Fire Chief Keith Higgins of the Tremont Volunteer Fire Department, a defendant in this action, then directed volunteer firefighters to the fire scene, and told the dispatcher to call both the Southwest Harbor and Mount Desert Fire Departments for assistance at the fire scene. (Id. ¶ 13.) Chief Higgins and several volunteer firefighters from the Tremont Volunteer Fire Department arrived at the fire scene at approximately 7:49 p.m. (Id. ¶ 14.)[2]

         According to Plaintiffs, Defendant Heath Higgins was the first firefighter to arrive at the premises, and he instructed Robert Cousins to leave, stating that he was now responsible (“I got it now.”). (Verified Compl. at 3, ECF No. 1.) Robert Cousins asserts that at the time, he had almost succeeded in suppressing the fire with a single fire extinguisher and could have completed the job with one more extinguisher. (Id.)

         Around 7:58 p.m., Fire Chief Samuel Chisolm of the Southwest Harbor Volunteer Fire Department, also a defendant, arrived at the fire scene with several volunteer firefighters. (DSMF ¶ 15.) Several volunteer firefighters from the Mount Desert Volunteer Fire Department arrived at the scene at approximately 8:20 p.m. (Id. ¶ 16.)

         At or around 8:00 p.m., Southwest Harbor Volunteer Fire Department Deputy Chief Jack Martel arrived and his helmet camera was recording. Deputy Chief Martel asserts the footage depicts the tower fully engulfed with flames of more than 15-feet in height rising from the top of the tower. (DSMF ¶¶ 38 - 40; Declaration of Jack Martel ¶ 13, ECF No. 82-4 / 76-11; Ex. 1 to Declaration (removable media thumb drive).)

         As of 8:05 p.m., the entire tower was consumed in flames, which were visible through the windows in the lower levels of the tower. As described by Southwest Harbor Volunteer Firefighter Mary Ellen Martel, and depicted in photographs she took at the scene, flames were “at and/or exiting the windows at every level of the tower [and] the top of the tower was non-existent, ” having been consumed by fire. (DSMF ¶¶ 42 - 44; M.E. Martel Declaration ¶ 9, ECF No. 82-7 / 76-19.) By 8:44 p.m., the entire structure was ablaze and there effectively was no restaurant or residence to spare from destruction. (DSMF ¶¶ 71 - 74; M.E. Martel Declaration ¶ 5 - 10; DSMF Ex. 17 (removable media thumb drive “Martel Photo 8:44”).)

         According to Chief Higgins, after assessing the structure, the surrounding exposures/risks, and the location, magnitude, and progression of the fire, he determined that the tower may lack structural integrity, lacked a route of access that did not expose firefighters to potential electrocution, and presented a challenge that exceeded available resources (human, water, and equipment). Chief Higgins, therefore, directed firefighters to perform a defensive attack from the exterior of the structure.[3] (DSMF ¶¶ 22 - 28.) A defensive attack involves the application of as much water as effectively as possible from the exterior of the structure, to control, to the extent possible, the progression of the fire and to contain and eventually extinguish the fire. (Id. ¶ 29; Audette/Pine Point Fire Training & Consulting Report at 11, ECF No. 76-12.)

         The Tremont and Southwest Harbor Volunteer Fire Departments applied thousands of gallons of water (approximately 40, 000 gallons) to the structure and surrounding exposures through the use of multiple apparatuses and equipment, including several hand lines, an engine-mounted deck gun, and Southwest Harbor's ladder truck. (DSMF ¶¶ 30, 41, 45, 88.)

         Linda Risley, a bystander with no affiliation to Tremont or Southwest Harbor, or their fire departments, took several photographs of the progress of the fire. Ms. Risley's photos appear to be the earliest available photographs of the fire. (DSMF ¶¶ 31 - 32.) Ms. Risley states that she took her first photograph at 7:54 p.m., ten minutes after Ms. Farrell's 9-1-1 call, and five minutes after the arrival of the first Tremont firefighters. (Declaration of Linda Risley ¶ 9, ECF No. 76-13 / 82-6; Ex. A to Risley Declaration (CD-R disc of Risley photos).) The initial photograph, IMG6864, reflects that a serious fire was underway within five minutes of the arrival of the Tremont firefighters and that water was being applied to the structure.

         The record also reflects that water supply issues could have hampered the fire suppression effort. The Town of Tremont does not have pressurized fire hydrants. (DSMF ¶ 46.) The Town of Tremont, as with many rural Maine communities, uses a network of what are called “dry hydrants.” (Id. ¶ 47.) Dry hydrants are hydrants located adjacent to bodies of water, and firefighters can connect a fire engine or tanker to the hydrant to pump water into the vehicle's water tank. The engine or tanker then transports the water to the fire scene. (Id.)

         The Tremont and Southwest Harbor Fire Departments brought approximately 9, 000 gallons of water to the fire scene. (Id. ¶ 50.) Subsequently, they relied on a “tanker shuttle” consisting of several tanker trucks and fire engines to collect water from the dry ...


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