Opinion
CV-19-499
06-13-2022
JUNE RICKETT Plaintiff v. VIP TOUR AND CHARTER BUS COMPANY Defendant and Third Party Plaintiff v. JEANNE LEWAND Third Party Defendant
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
JOHN O'NEIL JUSTICE, MAINE SUPERIOR COURT
Before the Court is Defendant VIP Tour and Charter Bus Company's ("VIP") Motion for Summary Judgment. For the reasons set forth herein, the Motion is DENIED.
FACTUAL BACKGROUND
This case arises out of a slip and fall which occurred on October 10th, 2017, at Federal Jack's restaurant in Kennebunk, Maine. Plaintiff Jane Rickett ("Rickett") is a resident of Santa Monica California, who on October 10th, 2017, was on a trip to Maine with approximately thirty other women. (Defendant's Statement of Material Facts ("Def. S.M.F.") ¶¶ 1, 9.) Defendant VIP is a Maine corporation which was contracted to provide transportation services for Rickett and the group of women she was traveling with. (Def.'s S.M.F. ¶¶ 2, 33.)
When Rickett initially filed this lawsuit, she named three other defendants, all Maine based companies: Shipyard, Inc., Federal Jack's Brew Pub Inc., and Seadog Properties LLC. All three companies reached a settlement agreement with Rickett and were dismissed from this case via a consented to order issued on September 23rd, 2021. The order dismissed fewer than all parties pursuant to M.R. Civ. P. 41.
On October 10th, 2017, Rickett and her group arrived at Boston's Logan International Airport. (Def.'s S.M.F. ¶ 9.) Once they exited the airport terminal, they boarded the VIP Bus which had been reserved by Third Party Defendant Jeanne Lewand. (Def.'s S.M.F. ¶¶ 9, 10.)
Lewand is a third party Defendant in this case because VIP sought - and was granted - her joinder as a Defendant on the issue of contribution.
The bus began traveling north towards Maine, eventually arriving at Federal Jack's restaurant in Kennebunk. (Def.'s S.M.F. ¶ 11.) Federal Jack's was the first stop of the seven day trip the group had planned - a detailed itinerary of which was provided to the VIP bus driver ahead of time. (Def.'s S.M.F. ¶ 11.) While VIP bus drivers are beholden to the destinations chosen by customers, the driver has discretion to determine the best way for them to reach their destination. (Def.'s S.M.F. ¶¶ 104-105.) Upon arrival at Federal Jack's, the bus driver chose to disembark Rickett and the other passengers in a lot northeast of, and adjacent to the restaurant, (commonly referred to by the parties as the "Pilot House Lot"). (Def.'s S.M.F. ¶ 12.)
Rickett and the other passengers disembarked the bus into the Pilot House Lot with little difficulty. (Def.'s S.M.F. ¶ 25.) To reach the restaurant, they made their way to a gravel path which connected the Pilot House Lot to Federal Jack's. (Def.'s S.M.F. ¶ 25.) At the end of the gravel path was a set of two steps which were uneven in height. (Def.'s S.M.F. ¶¶ 28, 117.) Rickett fell while ascending the steps, causing her injury. (Def.'s S.M.F. ¶ 28.)
The path which Rickett took was one of several access points to Federal Jack's from the Pilot House Lot. (Def.'s S.M.F. ¶¶ 67, 70, 81, 131.) It was the only defined walkway between the two locations. (Def.'s S.M.F. ¶ 120.) All the other access points required walkers to step over a rope. (Def.'s S.M.F. ¶¶ 43. 70.)
The Pilot House Lot is commonly used for tour bus parking. (Def.'s S.M.F. ¶¶ 34, 37, 41.) The lot is designated as a tour bus parking spot by the Kennebunk-Kennebunkport-Arundel Chamber of Commerce, and six other tour buses had parked in the Pilot House Lot that day. (Def.'s S.M.F. ¶¶ 59,133.) Additionally, M.R. Civ. P. 30(b)(6) representatives from each named defendant recognized that the Pilot House Lot is commonly used to park tour buses. (Def.'s S.M.F. ¶¶ 52, 60, 65, 67, 7183, 84, 87, 89, 128.)
On December 20th, 2019, just over two years after Rickett's fall, she filed the instant five count complaint in Cumberland County Superior Court. Counts I and II assert negligence against VIP. On November 1st, 2021, VIP filed the instant Summary Judgment Motion, and on December 9th, 2021, Rickett filed her opposition. On January 24th, 2022, VIP filed their reply. VIP's Summary Judgment Motion, now fully briefed, awaits this Court's decision.
SUMMARY JUDGMENT STANDARD
Summary judgment is warranted when a review of the parties' statements of material fact and the record evidence to which they refer, considered in the light most favorable to the nonmoving party, establish that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); Ogden v. Labonville, 2020 ME 133, ¶ 10, 242 A.3d 177. A material fact has the potential to influence the outcome of the case; and a genuine issue of material fact exists if the factfinder must decide between competing versions of the truth. Lewis v. Concord General Mut. Ins. Co., 2014 ME 34, ¶ 10, 87 A.3d 732. The record is assessed for sufficiency-not persuasiveness-such that a court can make a factual determination without speculating. Estate of Smith v. Cumberland County, 2013 ME 13, ¶ 19, 60 A.3d759.
DISCUSSION
In their Motion, VIP seeks summary judgment on Counts I and II which each assert negligence claims against them. Count I alleges an ordinary theory of negligence while Count II raises a common carrier theory. The difference being that the duty of care imposed on a common carrier is heightened, requiring VIP's actions to be more than just "reasonable in light of the apparent risk." Alexander v. Mitchell, 2007 ME 108 ¶ 15, 938 A.2d 1016. Since the difference between the two counts is the duty of care imposed, Rickett's two Counts pleading negligence are addressed together below.
I. Negligence
To survive a defendant's motion for a summary judgment in a negligence action, a plaintiff "must establish a prima facie case for each of the four elements of negligence: duty, breach, causation, and damages." Quirion v. Geroux, 2008 ME 41, ¶ 9, 942 A.2d 670.
A. Duty
Whether a duty of care is owed is a question of law which the court may resolve at summary judgment. Denman v. People's Heritage Bank, 704 A.2d 411,413 (Me. 1998). A duty is "an obligation, to which the law will give recognition and effect, to conform to a particular manner of conduct toward another." Mastriano v. Blyer, 2001 ME 134, ¶ 12, 779 A.2d 951 (quoting Quadrino v. Bar Harbor Banking &Trust Ca., 588 A.2d 303, 304 (Me. 1991)).
A common carrier owes its passengers a duty that requires '"the exercise of the highest degree of care compatible with the practical operation of the machine in which the conveyance was undertaken. Id. ¶ 13. (quoting Chaput v. Lussier, 132 Me. 48, 52, 165 A. 573, 575 (1933)).
This heightened standard of care continues until the carrier has given its passenger a reasonably safe discharge at a reasonably safe location. Id. This rule "establishes a bright line dividing the primary obligation of common carriers to provide a safe discharge, and the primary obligation of passengers to accept personal responsibility for their own safety." Id. ¶ 15.
In this case, the parties do not dispute whether VIP owed a duty to Rickett and the other passengers on board, they instead dispute the extent of that duty. VIP claims that their duty of care "ended" as soon as Rickett passed onto property either not owned by them or not considered part of the drop off location. Rickett claims that VIP's duty as a common carrier extended beyond her discharge from the bus and that the duty to provide a reasonably safe discharge in a reasonably safe location encapsulates her foray onto the gravel footpath adjacent to the parking lot, and onto the stairs. Thus, the parties do not argue over whether VIP had a duty, but how narrowly that duty should be defined. They thus conflate the elements of duty and breach.
This is a common occurrence when summary judgment motions are being litigated as parties seeking to avoid liability often attempt to gerrymander themselves out of the imposition of a duty by narrowly defining the duty owed so that it does not encompass them. See Restatement (Third) of Torts § 7, cmt. i. note (Am. Law Inst. 2010); see also Marshall v. Burger King Corp., 856 N.E.2d 1048, 1061 (Ill. 2006) ("[T]o the extent defendants suggest we could create a rule of law narrower than the [duty] discussed above to absolve them of liability, they are actually requesting that we determine, as a matter of law, that they did not breach their duty of care.")
For example, here, VIP attempts to define its duty under the law as a duty to discharge a passenger from their bus into a commonly used tour bus parking lot without injury. Rickett defines VIP's duty as one to discharge an elderly passenger into a well illuminated parking lot which has multiple clear, stable, and unobstructed pathways to the adjacent restaurant. Both parties attempt to impart case specific facts into the duty determination. Such an exercise thwarts the flexible nature of the duty of care concept and could result in "an infinite number of duties." See Marshall, 856 N.E.2d at 1061. See also John C. P. Goldberg &Benjamin C. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 VAND. L. REV. 657, 712-717 (2001). While such particularized statements of the requisite duty of care may be comprehensible, the duty imposed on an alleged tortfeasor must remain general in nature and avoid conclusions about the facts of a particular case. See Marshall, 856 N.E.2d at 1061.
In this case, the Court avoids any fact specific duty determinations and asks simply, whether the alleged tortfeasor, as a matter of law, had "an obligation to conform to a particular manner of conduct towards another." Quadrino, 588 A.2d 303, 304 (Me. 1991). VIP, an owner and operator of a commercial bus line, is a common carrier under Maine law. See In re United Parcel Service Inc., 256 A.2d 443, 447 (Me. 1969) (holding that a common carrier is one who holds himself out as engaged in the public service of carrying goods or people for hire). Thus, the manner of conduct owed by VIP to Rickett was a duty to exercise the highest degree of care compatible with the practical operation of a bus, providing her with a reasonably safe discharge in a reasonably safe location. This Court refuses, as a matter of law, to contour VIP's duty to fit the specific factual circumstances before it.
B. Breach, Causation, Damages
The remaining elements of the tort of negligence are fact intensive in nature. And, as such, summary judgment can only be granted if the record presents no genuine issues of material fact as to their existence. Here, the record generates genuine issues of material fact as to all three.
Regarding breach of duty, the record presents several factual issues as to whether VIP's decision to drop Rickett and the others in the Pilot House Lot was reasonable. There are properly supported allegations that all the passengers were older and thus more prone to injury, it was dark, the parking lot was poorly lit, there was no easy path to take when walking to the restaurant, and the bus driver knew the steps were uneven. On the other hand, there are allegations that tour buses always park in the Pilot House Lot, any other mode of access to the restaurant was unreasonable, and that all the passengers were of good health and mobility. Thus, the Court cannot say - beyond any genuine dispute of fact - that VIP did not breach its duty
The record also generates genuine issues of fact as to causation and damages. Namely, on causation, whether the driver's decision to disembark passengers in the Pilot House Lot was the proximate cause of Rickett's injury. See Holmes v. E. Me. Med. Ctr., 2019 ME 84, ¶ 17, 208 A.3d 792. (""Proximate cause is that cause which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the result would not have occurred."). And on damages, what Rickett's damages - besides some sort of bodily injury - were.
Because the record generates genuine issues of material fact as to breach, causation and damages, summary judgment may not be entered in favor of Defendant VIP.
Entry is:
Defendant's Motion for Summary Judgment is Denied.
The clerk is directed to incorporate this order into the docket by reference pursuant to M.R. Civ. P. 79(a).