Plaintiff-Christian Lewis, Esq.
Defendant City-Russell Pierce, Esq.
Defendant Hi-Way-Tracy Hill, Esq.
Defendant Zebra-John Topchik, Esq.
D. WARREN JUSTICE
the court is defendant City of Portland's motion for
summary judgment and plaintiff Susan Golding's motion to
file a second amended complaint
a case where Golding is suing the City of Portland and two
contractors, Hi-Way Safety Systems and Zebra Striping
Golding alleges that she was injured when she stepped into a
pothole that was not readily visible or apparent at the
crosswalk at the intersection of Fore and Hancock Streets.
amended complaint Golding alleges that the defendants,
including the City, knew or should have known of die
dangerous condition at the intersection and created or
allowed a dangerous condition to exist (Count I). She also
alleges that the City breached a duty to provide a sate
premises (Count V), that the City breached a duty to warn of
a dangerous condition (Count VI), and that die City breached
a duty to inspect its premises to discover dangerous latent
conditions (Count VII), In her proposed second amended
complaint, Golding specifically asserts that the City is also
liable under 23 M.R.S. § 2355, which provides for
recovery for injuries suffered through defects in town ways
if the appropriate municipal officers had 24 hours actual
notice of the defect. It appears that recovery under this
statute may be limited to $ 6, 000.
court will first address Golding's motion to amend and
will grant that motion. The deadlines in the scheduling order
have been extended, and plaintiff's motion was made
within the deadlines in the last two scheduling orders.
Moreover, the City has had notice of the potential claim
under 23 M.R.S. § 2355 through a notice served on the
City shortly after Golding suffered the alleged injuries.
leaves, however, the City's motion for summary judgment
as to the claims against the City in Counts I, V, VI, and VII
in both the first and second amended complaints. These claims
allege general negligence and premises liability. As the City
has demonstrated in its motion for summary judgment, it is a
municipal entity entitled to sovereign immunity on those
claims unless there is a statutory waiver of sovereign
immunity. 14 M.R.S. § 8103.
from 23 M.R.S. § 2355, there are only two potential
waivers of sovereign immunity applicable in this case. The
first is set forth in 14 M.R.S. § 8104-A(4), which
applies to negligent acts and omissions "arising out of
and occurring during the performance of
construction, street cleaning or repair operations on any .
.. town way" (emphasis added). Notably, that same
section states that governmental entities are not liable
"for defect [or] lack or repair" in any town way.
has stated that her injuries were suffered on July 27, 2018,
and that there was an unfilled pothole that had been painted
over in the crosswalk that made it difficult to see. City SMF
¶¶ 4, 7 (admitted). The City has offered sworn
evidence that there were no contemporaneous construction,
street cleaning, or repair operations being performed by the
City at the crosswalk in issue at that time. City SMF ¶
judgment should be granted if there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law. In considering a motion for summary might
generate a factual dispute as to whether the City was
performing street cleaning, repair or construction on July
27, 2018. The mere assertion that discovery is ongoing is not
enough; otherwise summary judgment could never be granted
before all discovery has been completed. This is contrary to
Rule 56(b), which provides that a party may "at any
time" file a motion for summary judgment.
second possible waiver of sovereign immunity that could
conceivably be applicable in this case would be if the City
has insurance providing coverage notwithstanding its
immunity. 14 M.R.S. § 8116. The City has demonstrated
that its own insurance is limited to the specific categories
where immunity has been statutorily waived. City SMF ¶
9. Golding does not dispute that showing, but she suggests
that insurance naming the City as an additional insured may
have been procured by Zebra Striping and further states that