the court is Defendant GMRI, Inc.'s (GMRI's) motion
for summary judgment. GMRI has sought summary judgment on
both Baez's negligence claim and Baez's wife's
loss of consortium claim.
Armondo Baez was employed as a delivery driver on March 17,
2014. (Def.'s SMF ¶ 4.) On that date Baez made a
delivery to the Olive Garden Restaurant located at 205 Civic
Center Drive, Augusta, Maine. (Def.'s SMF ¶¶ 3,
8; Pl.'s Opp. SMF ¶ 8.) The restaurant is owned by
defendant GMRI. (Def.'s SMF ¶ 3.)
arriving at the restaurant, Baez parked his delivery truck in
the rear of the premises approximately 15-20 feet from the
rear service door. (Def.'s SMF ¶ 9.) While moving
boxes from his truck to the restaurant Baez noticed a sheet
of ice on the service door walkway. (Def.'s SMF ¶
13.) Baez informed a restaurant employee that there was ice
on the walkway. (Def.'s SMF. ¶ 16.) On Baez's
third trip between his truck and the restaurant he was
startled by an employee, stepped on the ice patch, slipped
and fell to the pavement. (Def.'s SMF ¶¶
21-22.) Baez thereafter completed his delivery, made another
delivery and then drove his truck back to Worcester,
Massachusetts. (Def.'s SMF.¶ 24; Pl.'s Opp. SMF
judgment is appropriate if the record reflects that there is
no genuine issue of material fact and the movant is entitled
to judgment as a matter of law." Dussault v. RRE
Coach Lantern Holdings, LLC, 2014 ME 8, ¶ 12, 86
A.3d 52 (quoting F.R. Carroll, Inc. v. TD Bank, NA.,
2010 ME 115, ¶ 8, 8 A.3d 646). "A material fact is
one that can affect the outcome of the case, and there is a
genuine issue when there is sufficient evidence for a
fact-finder to choose between competing versions of the
fact." McIlroy v. Gibson's Apple Orchard,
2012 ME 59, 5 7, 43 A.3d 948 (quoting N. E. Ins. Co. v.
Young, 2011 ME 89, ¶ 17, 26 A.3d 794). "Even
when one party's version of the facts appears more
credible and persuasive to the court, any genuine factual
dispute must be resolved through fact-finding, regardless of
the nonmoving party's likelihood of success."
Lewis v. Concord Gen. Mut. Ins. Co., 2014 ME 34,
¶ 10, 87 A.3d 732. If facts are undisputed but
nevertheless capable of supporting conflicting, plausible
inferences, "the choice between those inferences is not
for the court on summary judgment." Id.
makes two arguments in support of its motion for summary
judgment. First, GMRI argues that it owed Baez no duty of
care because the "dangerous hazard" was the result
of a natural accumulation of ice and was not created by GMRI.
Second, GMRI argues that Baez's failure to exercise due
care was the sole cause of his injuries. GMRI also argues
that judgment should be entered in its favor on Ms.
Baez's loss of consortium claim because that claim arises
from the same act which gave rise to the underlying
first argument fails because it is based on the standard for
determining whether a non-possessor of land owes a duty of
care to those who use the land. The Law Court has held that a
non-possessor of land "who negligently creates a
dangerous condition on the land may be liable for reasonably
foreseeable harms." Colvin v. A R Cable Services-ME,
Inc., 1997 ME 163, ¶ 7, 697 A.2d 1289. The Law
Court has applied this holding to a winter weather context
and held that a snow plowing company, as a non-possessor of
land, did not negligently create a dangerous condition by
failing to sand a parking lot after plowing it and therefore
did not owe a duty of care to the plaintiff who slipped and
fell in the parking lot. Davis v. RC & Sons Paving,
Inc., 2011 ME 88, ¶¶ 21-22, 26 A.3d 787.
Instead, the dangerous condition was created by the natural
accumulation of ice and snow. Id.
case, GMRI cites to Davis and argues that the patch
of ice which Baez slipped on was the result of the natural
accumulation of ice and that GMRI was therefore under no duty
to remove it. As noted, this argument is built upon the wrong
standard as Davis was based upon the standard of
care which applies to non-possessors of land. In this case,
the undisputed facts support a finding that the defendant
possessed the premises upon which the patch of ice was
located. It is well settled that under the law of
Maine, an "owner of premises owes a legal duty to his
business invitees to protect them from those dangers
reasonably to be foreseen." Stanton v. Univ. of Me.
Sys., 2001 ME 96, 773 A.2d 1045; See also Budzko v.
One City Ctr. Assocs., 2001 ME 37, ¶ 11, 767 A.2d
310 ("[I]n 'slip and fall' negligence cases, a
business owner owes a positive duty of exercising reasonable
care in providing reasonably safe premises when it knows or
should have known of a risk to customers on its
premises") (quotation omitted).
applying this standard, the Law Court has held that those who
are in possession or control of a premises owe business
invitees a duty to keep premises reasonably safe from an
unreasonable risk of harm posed by snow and ice. Libby v.
Perry, 311 A.2d 527, 535 (Me. 1973) ("The mere fact
that snow and ice conditions are prevalent during the course
of our Maine winters is not sufficient justification for the
insulation of the occupier of land from liability to his
business invitees exposed to an unreasonable risk of
harm"); Budzko, 2001 ME 37, ¶ 11, 767 A.2d
310 (holding that "evidence supported the jury's
implicit findings that [One City Center] failed to treat the
ice with salt or sand, failed to shovel any of the
accumulated snow or ice, and failed to warn its business
invitees of the icy condition of the premises"). Because
GMRI occupied the premises on which the ice was located, it
had a duty to keep the premises reasonably safe from an
unreasonable risk of harm posed by ice despite the fact that
ice results from natural weather conditions. See
Libby, 311 A.2d at 535.
second argument, GMRI asserts that Baez failed to exercise
due care to avoid the known danger posed by the icy condition
and therefore Baez's conduct is the sole cause of his
injuries. Specifically, GMRI asserts that Baez's conduct
shows that he believed he could exercise ...