Opinion
SUPERIOR COURT CIVIL ACTION DOCKET NO. CUMSC- RE-15-247
05-01-2017
ERIK WEST, KATHLEEN WEST, JOHN PRIDE, and JOANN PRIDE, Plaintiffs, v. JEWETT & NOONAN TRANSPORATION, INC., Defendant
STATE OF MAINE
CUMBERLAND, SS
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
There are two motions for summary judgment pending before the court. On or about December 15, 2016, defendant Jewett & Noonan Transportation, Inc. moved for summary judgment on plaintiffs' claims for common law trespass, common law nuisance, and strict liability based upon abnormally dangerous activities. Defendants also argue summary judgment is warranted because plaintiffs are unable to prove their damages under any theory of recovery and have not asserted facts sufficient to present a claim for punitive damages.
Plaintiffs moved for an extension of time to respond arguing that defendant moved for summary judgment before discovery regarding plaintiffs' punitive damages claim concluded. Plaintiffs asserted that the motion was made in defiance of the court's clear statement that such discovery should conclude before any motion for summary judgment was re-filed. On January 9, 2017, the court granted plaintiffs' motion for an extension of time until 21 days after discovery concluded, through the deposition of Paul Nestor, a representative of defendant's insurer.
On or about February 8, 2017, plaintiffs filed their own motion for summary judgment arguing that regardless of how the petroleum products from defendant's overturned tanker truck entered onto plaintiffs' property, defendant is liable for trespass because it has refused to remove them from plaintiffs' property. Plaintiffs also moved for summary judgment arguing that they have established an entitlement to $490,000 in damages based on the cost to remove the petroleum products from the property. Defendant responded to plaintiffs' motion for summary judgment by requesting the court consider its earlier filed motion for summary judgment to be incorporated by reference into its opposition and to decide all of the pending motions at this time.
Following the full briefing of plaintiffs' motion for summary judgment, the court held a conference with the parties to discuss the best method for resolving the pending motions for summary judgment. The parties did not agree on a particular path forward.
Based on the parties' positions at the conference and the current record, it is appropriate to address plaintiffs' motion for summary judgment in its entirety and defendant's motion for summary judgment regarding plaintiffs' common law trespass claim and plaintiffs' proof of damages. The court addresses these issues in defendant's motion for summary judgment because plaintiffs' motion effectively responds to and confronts the arguments raised therein.
For the reasons discussed below, the court denies plaintiffs' motion for summary judgment, and denies those aspects of defendant's motion for summary judgment addressed in this Order, relating to common law trespass and damages.
Background
On June 9, 2011, Kathleen West and her parents, John and Joann Pride purchased approximately 12 acres of land located at 15 Washburn Drive in Gorham, Maine (the "property"). (Pl.'s Supp'g S.M.F. ¶ 1.) The Prides and Kathleen West subsequently transferred ownership of the property to Kathleen and Erik West on March 11, 2016. (Id. ¶ 2.)
On June 11, 2014, a transport tanker owned and operated by defendant rolled over in a traffic circle near the property, resulting in the release of nearly ten thousand gallons of No. 2 heating petroleum products and kerosene [hereinafter collectively referred to as "petroleum products"]. (Id. ¶ 3.) A significant amount of the spilled petroleum products migrated onto the property. (See id. ¶ 4.) The driver of defendant's vehicle testified that the spill was occasioned by his attempt to avoid crashing into a vehicle that cut him off. (Bird Dep. 6:1-15). The passenger in defendant's vehicle, however, testified that the driver was gunning the vehicle to get in front of a car that was coming around the traffic circle. (Maraian Dep. 49:1-50:7, 52:6-12.) As a result of the acceleration, according to the passenger, the nose of defendant's vehicle was very close to hitting the vehicle in front of it, and the driver had to jerk the wheel abruptly to avoid a collision, causing the truck to roll over. (Id. at 52:13-53:22.)
The Maine Department of Environmental Protection ("DEP") initially requested that the defendant excavate all petroleum-contaminated soils on plaintiffs' property. (Def.'s Supp'g S.M.F. ¶ 5; Compl. ¶ 8.) In light of testing performed in July 2015, showing lowered concentrations of petroleum, the DEP decided not to require any further remediation from defendant (Def.'s Supp'g S.M.F. ¶ 5; Compl. ¶ 21.)
Robert Dupuis, the designated corporate deponent for defendant, asserts that the reason it never began excavating the site was because it never received an access agreement from the plaintiffs to do so. (Dupuis Dep. 174:19-175:18.) Mr. Dupuis testified that before the DEP concluded no further remediation was required, it had spent over $700,000 remediating the spill. (Id. at 101:23-102:3.) The Wests testified that their well was tested about a month after the spill, and then two months thereafter, and both tests found the water was clean. (E West Dep. 69:23-70:10; K West Dep. 72:10-73:11.)
Erik West asserts that he has requested defendant several times to remove all of the petroleum products from the property. (E West Aff. ¶ 5.) Defendant has not removed all of the petroleum products from the property. (Pl.'s Supp'g S.M.F. ¶ 7.) In response to an interrogatory, Kathleen West asserts that it would cost approximately $450,000 to $500,000 to remediate the contaminants on their property. (K West Response to Interrogatory No. 3.) Defendant made a conscious and intentional decision not to excavate the property based at least in part on the fact that the DEP has not required excavation. (Dupuis Dep. 192:10-193:5.)
Plaintiffs' expert witness, John Sevee, P.E., opines that the cost of removing the petroleum products-contaminated soil from the property is approximately $490,000. (Sevee Aff. ¶ 4 and Ex. B thereto; see also Garfield Dep. 117-118 ($500,000 estimate for removing the petroleum products-contaminated soil is "probably a little bit more than we had in our remedial alternatives evaluation; but it's not orders of magnitude high or low or that sort of thing").) Mr. Sevee is designated to testify that the spill area still contains contaminants from the spill and that restoration of the area to its pre-spill condition will be very expensive. (Pl.'s Expert Designation.) Mr. Sevee also opined that the level of risk to the groundwater on the property is very high, there will never be a point where there's absolutely no risk of contamination on the property—unless perhaps one were to dig up everything for 500 feet below the ground surface and move it off someplace else and fill it back in with clean soil. (Sevee Dep. 94:12-97:23.) Mr. Sevee believes that such an intensive excavation has never been performed and the reason is that it is cost prohibitive. (Id. at 137:10-139:1.)
At the time of the spill, the Wests were in the process of developing the property with the intent that Erik West, an experienced contractor, would build and sell single-family homes. (Pl.'s Supp'g S.M.F. ¶ 10.) Mr. West anticipated being able to build 4 or 5 single family homes and expected the homes to sell for approximately $250,000 each, for total revenues of $1,000,000 or $1,250,000, depending on the number of houses built. (E West Aff. ¶ 8.) Mr. West anticipated that the cost of construction would be approximately $100,000 per home, plus approximately $100,000 for other costs for a total cost of construction of approximately $500,000 to $600,000 depending on the number of houses built. (Id. ¶ 9.) Mr. West asserts that by June 11, 2014, he had talked at length with four different persons about their potential interest with the development and all four told him they were prepared to move forward. (Id. ¶ 10.) After the spill, however, the individuals he talked to no longer were interested in the property due to the presence of petroleum products. (Id. ¶ 11.) Mr. West further asserts that he is aware of no other persons interested in purchasing a house in the development with the current state of contamination. (Id. ¶ 12.) Mr. West anticipated revenues, minus the avoided costs of construction, to be approximately $500,000 or $650,000 depending on whether four or five lots could be built on the property. (Id. ¶¶ 8-9.)
The Wests testified that they did not know what the property was worth on the day before the accident and do not know the property's value today. (K West Dep. 51:23-52:1, 110:8-13; E West Dep. 54:16-19, 110:18-111:1.)
I. Discussion
A. Standard of Review
"The function of a summary judgment is to permit a court, prior to trial, to determine whether there exists a triable issue of fact or whether the question[s] before the court [are] solely...of law." Bouchard v. American Orthodontics, 661 A.2d 1143, 44 (Me. 1995). Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); see also Levine v. R.B.K. Caly Corp., 2001 ME 77, ¶ 4, 770 A.2d 653. A "material fact" is one that can affect the outcome of the case, and a genuine issue exists when there is sufficient evidence for a fact finder to choose between competing versions of the fact. Lougee Conservancy v. City-Mortgage, Inc., 2012 ME 103, ¶ 11, 48 A.3d 774.
Summary judgment is also appropriate if, looking at the record in the light most favorable to the non-moving party and drawing all reasonable inferences in that party's favor, no reasonable juror could find for the non-moving party. Id. ¶ 14, n. 3 (quoting Scott v. Harris, 550 U.S. 372, 377 (2007)). This is true "even when concepts such as motive or intent are at issue...if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Dyer. v. Dep't. of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821 (quoting Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir. 2007)); Bouchard, 661 A.2d at 1144-45 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)) ("If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted"). Accordingly, a "judgment as a matter of law in a defendant's favor is proper when any jury verdict for the plaintiff would be based on conjecture or speculation." Stanton v. Univ. of Maine System, 2001 ME 96, ¶ 6, 773 A.2d 1045.
Motions for summary judgment must be supported by citations to record evidence of a quality that would be admissible at trial. Levine, 2001 ME 77, ¶ 6, 770 A.2d at 656 (citing M.R. Civ. P. 56(e). Facts supported by record citations in a supporting or opposing statement of materials facts are deemed admitted unless properly controverted. M.R. Civ. P. 56(h)(4); see also Farrell v. Theriault, 464 A.2d 188, 194 (Me. 1983). When ruling on a motion for summary judgment, courts are only required to consider "the portions of the record referred to, and the material facts set forth, in the parties' statement of material facts to determine whether there is no genuine dispute of material fact." Lubar v. Connelly, 2014 ME 17, ¶ 34, 86 A.3d. 642. B. Whether Plaintiffs Have Asserted Sufficient Facts to Present a Claim for Common Law Trespass
Defendant argues that summary judgment is warranted on plaintiffs' common law trespass claim because the cause of action requires an intent to enter the land of another and it is undisputed that defendant had no such intent. Defendant further argues that they are not liable for a continuing trespass because such a trespass requires the initially tortious placement of a thing on a plaintiff's property and is not available if the initial placement was not tortious. Defendant contends that even if the initial entry was a trespass, it was a permanent, not continuing trespass because the petroleum products are likely to remain indefinitely.
Plaintiffs argue that there are two independent grounds for holding the defendant liable for common law trespass: first, defendant negligently caused the initial entry of petroleum products onto the property, and also because defendant has intentionally failed to remove all of the petroleum products from the property. They assert that when one is asked to leave land or remove one's chattels from the land, a trespass occurs if there is no such removal regardless of how the person or chattel initially entered the land. Stated differently, they contend that just because there was an initial innocent and unintentional entry, it does not mean the defendant cannot be held liable for refusing to subsequently leave the property.
Although both parties point to different provisions of the Restatement (Second) of Torts to support their arguments, the Restatement is clear that it "expresses no opinion as to whether there is a duty to remove from another's land a structure, chattel, or other thing in the possession of the actor which was carried or forced on the land without the actor's fault." RESTATEMENT (SECOND) OF TORTS § 160 caveat (1965). Accordingly, the implications the parties draw from alternate sections of the Restatement are not persuasive.
While the Restatement expresses no opinion, the Law Court shed light on this question in Hayes v. Bushey, 160 Me. 14, 196 A.2d 823 (1964). In Hayes, the plaintiff brought a complaint for trespass against the defendant after the defendant's truck crashed into plaintiff's building. Id. at 15, 196 A.2d at 824. The defendant did not dispute that he drove the truck and damaged plaintiff's building, but argued he had committed no trespass because his entry onto plaintiff's land was not intentional and without fault or negligence on his part. Id., 196 A.2d at 824. The defendant asserted that his entry was caused by the negligence of another driver who negligently struck his truck causing it to enter plaintiff's land. Id., 196 A.2d at 824. The lower court entered summary judgment in favor of the plaintiff determining the defendant was liable for trespass. Id. at 15-16, 196 A.2d at 824.
On appeal, the Law Court explained that it "has never before been called upon to decide whether liability will be imposed for an unintended and involuntary intrusion upon land of another." Id. at 16, 196 A.2d at 824. In resolving the question in the negative, the Law Court looked to the Restatement (First) of Torts, as well as leading cases from New Hampshire, Massachusetts, and New York. Pertinently, Hayes focused on comment e to Section 158 of the Restatement, which provided that "tort liability is never imposed upon one who has neither done an act nor failed to perform a duty." Id. at 16, 196 A.2d at 824.
Hayes also discussed Puchlopek v. Portsmouth Power Co., 82 N.H. 440, 136 A. 259 (1926), in which the intrusion of the decedent child was not deemed a trespass because the "essential element of force" was lacking when the child slipped and fell by accident, and Edgarton v. H.P. Welch Co., 321 Mass. 603, 74 N.E.2d 674 (1947), where the unintended intrusion upon land in possession of another did not constitute trespass where plaintiff's intestate crashed truck into defendant's property. Id. at 17-18, 196 A.2d at 825. Finally, and most importantly for purposes of the present motion, Hayes discussed Phillips v. Sun Oil Co., 307 N.Y. 328, 121 N.E.2d 249 (1954), in which a trespass claim based on gasoline leaking from defendants' pumps into a well on plaintiff's land was dismissed because there was no evidence that the intrusion was negligent or intentional. Id. at 18, 196 A.2d at 825.
In Hayes, based on its review of these and other authorities, the court concluded that consistent with "the modern trend of the law," no trespass exists where the defendant can demonstrate he was proceeding in the exercise of due care with no intention other than to operate his vehicle upon the public highway, but was forced upon the plaintiff's land by the wrongful act of a third party. Id. at 18-19, 196 A.2d at 826. Stated differently, a non-negligent involuntary or accidental entry upon the land of another is not a trespass at common law. On the other hand, a negligent entry can constitute a common law trespass. See Massachusetts Bay Ins. Co. v. Ferraiolo Construction Co., 584 A.2d 608, 611 n.3 (Me. 1990) ("the common-law trespass count of the []suit thus could be based on mistake, inadvertence, or negligence . . .").
Plaintiffs' argument that Hayes does not control because it does not involve property of the defendant that was left on plaintiff's land following the initial entry carries some force, but ignores the fact that Hayes relied on Phillips v. Sun Oil Co. in reaching its conclusion. Specifically, Hayes approvingly discussed the determination in Phillips that gasoline which seeped into the plaintiff's well—and remained on plaintiff's land—did not give rise to a trespass claim because the plaintiff failed to demonstrate that the intrusion onto plaintiff's land was the result of an intended act or negligence. Hayes, 160 Me. at 18, 196 A.2d at 824 (discussing Phillips, 307 N.Y at 331, 121 N.E.2d at 250-51).
Accordingly, the court rejects plaintiffs' argument that the defendant can be held liable for common law trespass for failing to remove the petroleum products it spilled onto plaintiffs' land in the absence of negligence or intent on the part of defendant. On the other hand, although the continued presence of petroleum products on plaintiffs' property may not constitute a common law trespass in and of itself, there is a genuine issue of material fact as to whether the initial entry of petroleum products onto plaintiffs' property was caused by defendant's negligent operation of the tanker truck. (Compare Bird Dep. 6:1-15, with Maraian Dep. 49:1-53:22.) Accordingly, the court denies both parties' motions for summary judgment regarding common law trespass. C. Whether Summary Judgment is Warranted Regarding Plaintiffs' Claim for Non-Punitive Damages
Defendant argues that plaintiffs have failed to assert or form any evidentiary foundation to enable them to prove damages beyond the cost of the excavation initially required, but subsequently rejected by the DEP. Defendant argues that plaintiffs' position appears to be based on their subjective desire to remediate the property even though their expert testified that the property cannot be fully remediated and the DEP determined no further remediation was required. Additionally, defendant argues that plaintiffs have not identified any evidence as to the loss of value of their property, if any, as a result of the spill.
Plaintiffs contend they have presented undisputed evidence that they have been damaged in the amount of $490,000, which is the amount it would cost to restore the property by removing the petroleum products caused by defendant's crash. Plaintiffs argue that even if restoration costs are not a proper measure of damages, it would simply mean that summary judgment in the amount of at least $500,000 should enter as that represents the minimum loss in the absence of restoration. This figured is based on Erik West's testimony that he anticipated making approximately $500,000 to $650,000 from the sales of houses absent the spill.
The two prevalent measures for damage to real or personal property are: 1) the difference in value of the property before and after the actionable injury; and 2) the cost of repairing or restoring the property to its condition before the injury. See e.g. Leavitt v. Continental Tel. Co., 559 A.2d 786, 788 (Me. 1989). The measure that most precisely compensates the plaintiffs for the loss without recourse to speculation and conjecture should be utilized. Wendward Corp. v. Group Design, Inc., 428 A.2d 57, 61-62 (Me. 1981).
In Leavitt, the Law Court approved the Restatement's formulation of damages for harm to land from past invasions as follows:
1) If one is entitled to a judgment for harm to land resulting from a past invasion and not amounting to a total destruction of value, the damages include compensation for
559 A.2d at 788 (quoting and approving RESTATEMENT (SECOND) OF TORTS § 929. Stated differently, the measure of damages is ordinarily the cost of restoring the land to its original condition, unless the cost is disproportionate to the diminution in the value of the land caused by the trespass in which case damages are measured by the difference between the value of the land before and after the harm. RESTATEMENT (SECOND) OF TORTS § 929 cmt. b. Even when restorative damages are awarded, damages may be available for diminution in value when the restorative measures do not fully compensate the owner for the damages suffered. Marchesseault v. Jackson, 611 A.2d 95, 98 (Me. 1992).(a) the difference between the value of the land before the harm and the value after the harm, or at his election in an appropriate case, the cost of restoration that has been or may be reasonably incurred....
Damages that are "uncertain, contingent, or speculative," however, may not be recovered. Estate of Hoch v. Stifel, 2011 ME 24, ¶ 43, 16 A.3d 137. Some evidence of the amount of loss sustained must support an award, but damages need not be proved to a mathematical certainty. Id. (citing Foss v. Ingeneri, 561 A.2d 498, 498-99 (Me. 1989) (holding that plaintiff retains the burden of proving damages by a preponderance of the evidence following entry of default judgment); Decesere v. Thayer, 468 A.2d 597, 598 (Me. 1983) ("Damages must be grounded on established positive facts or on evidence from which their existence and amount may be determined to a probability")). The fact finder may also determine damages based upon probable and inferential proof. Id. (citation omitted).
Here, plaintiffs have presented sufficient evidence of damages for the cost of remediation to survive summary judgment through the testimony of their expert, John Sevee. While defendant challenges the foundation for Mr. Sevee's opinion that it will cost approximately $490,000 to remove the petroleum products-contaminated soil from the property, when viewed in the light most favorable to plaintiffs, Mr. Sevee has provided an adequate foundation. Specifically, his affidavit explains that he is a professional engineer with more than forty years of experience, including significant experience involving petroleum spills. (Sevee Aff. ¶ 1.) He also explains that his opinion is based on his review of soil sample reports carried out on the property as well as the DEP's well water test. (Id. ¶¶ 2-3.) While Mr, Sevee did not attach the referenced reports to his affidavit, he attached a table summarizing the results, as well as a detailed calculation supporting his estimate regarding the cost to remove the petroleum products-contaminated soil. (Sevee Aff. and Ex.s A & B thereto.) For purposes of summary judgment, this is sufficient to create an issue of material fact regarding the cost to restore the property.
The DEP's determination that no further remediation was required of defendant is not dispositive of
At trial, or in a motion in limine, defendant may, of course, challenge and examine Mr. Sevee about the underlying facts and data supporting his opinion. M.R. Evid. 705.
On the other hand, plaintiffs have not definitively established that it will cost $490,000 to restore the property. This is because the assessment of damages is within the sole province of the fact-finder and the fact-finder is "not required to believe witnesses, even if the testimony of those witnesses, be they experts or lay witnesses, is not disputed." Dionne v. LeClerc, 2006 ME 34, ¶ 15, 896 A.2d 923 (quoting Irish v. Gimbel, 2000 ME 2, ¶ 8, 743 A.2d 736).
Finally, the court concludes that plaintiffs have not presented sufficient evidence on the alternative measure of diminution in value of the property to warrant summary judgment. While property owners may state their opinion as to the fair market value of their property including the cause of any change in the value of their property, see e.g. Garland v. Roy, 2009 ME 86, ¶ 21, 976 A.2d 940, the only evidence plaintiffs have presented relating to diminution in value of the property is Mr. West's testimony on anticipated revenues following the anticipated construction and sale of houses. (See E West Aff. ¶¶ 8-11.) This testimony is more focused on lost profits than on diminution in value, although it may be relevant to the issue of whether the restoration cost that Mr. Sevee has presented is in proportion to the value of the property.
The Wests also testified that they did not know what the property was worth on the day before the accident and do not know the value of the property following the accident. (K West Dep. 51:23-52:1, 110:8-13; E West Dep. 54:16-19, 110:18-111:1.)
Moreover, the lost profits analysis that Mr. West presents may require expert testimony. See State v. Fernald, 397 A.2d 194, 197 (Me. 1979) ("Under M.R. Evid. 702 it is for the presiding Justice to make an initial determination whether the subject-matter as to which purported expert testimony is offered is beyond common knowledge, so that a juror is in need of the assistance of an expert to evaluate the matter intelligently"); see also Morin Bldg. Products Co., Inc. v. Atlantic Design and Constr. Co., Inc., 615 A.2d 239, 241 (Me. 1992) (precluding corporate officer from testifying as to depreciation in value of structure due to defective work because the witness demonstrated "no knowledge that would qualify him to express an opinion as to the quality or adequacy of [defendant's] work or materials used or as to the cost of any labor or materials that may be necessary to correct any of the defects claimed").
In any event, because the plaintiffs have made a sufficient showing regarding remediation costs to withstand summary judgment for defendant, but not a sufficient showing to garner summary judgment in their own favor, both parties' motions will be denied as to this issue.
II. Conclusion
For the reasons discussed, it is ORDERED AS FOLLOWS:
1. Plaintiffs' motion for summary judgment is denied.
2. Defendant's motion for summary judgment is denied, as it relates to plaintiffs' common law trespass claim and plaintiffs' damages.
3. Counsel are requested to report on the status of the Paul Nestor deposition, which has apparently not been held despite the passage of months since it was first noticed. If that deposition does not take place by June 15, 2017, the court will schedule a further conference at which the parties may present their positions on whether the remainder of the defendant's motion for summary judgment should be set for further briefing, or should be denied without further briefing, so that the case can proceed in any case.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this Order by reference in the docket. Dated: May 1, 2017
/s/_________
A.M. Horton
Justice, Superior Court
STEPHEN ALEXANDER BELL, ESQ
MUNDHENK & BELL LLC
PO BOX 792
PORTLAND, ME 04101-0792
GAVIN MCCARTHY, ESQ
KATHERINE KAYATTA, ESQ
PIERCE ATWOOD
MERRILLS WHARF
254 COMMERCIAL ST
PORTLAND, ME 04101 ERIK WEST, KATHLEEN WEST, JOHN PRIDE, and JOANN PRIDE, Plaintiffs,
v. JEWETT & NOONAN TRANSPORTATION, INC., Defendant. SUPERIOR COURT CIVIL ACTION DOCKET NO. CUMSC-RE-15-247
ORDER ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Defendant Jewett & Noonan Transportation, Inc. has moved for partial summary judgment on Plaintiffs Erik West, Kathleen West, John Pride, and Joann Pride's claims for statutory trespass and punitive damages.
Oral argument was held today, with attorneys McCarthy and Bell participating. The oral argument was recorded. Based on the entire record, Defendant's motion for partial summary judgment is granted as to the statutory trespass claim in Count II of the Complaint, and denied without prejudice as to the Plaintiffs' claim for punitive damages.
I. Background
The following facts are not in dispute. On June 11, 2014, a transport tanker truck owned and operated by Defendant rolled over in a traffic circle connecting Routes 112 and 114 in Gorham, Maine. (Def. Supp. S.M.F. ¶ 1; Pls. Opp. S.M.F. ¶ 1.) As a result, nearly 9,000 gallons of petroleum products were released. (Pls. Add'l S.M.F. ¶ 6; Def. Reply S.M.F. ¶ 6.) Some of the petroleum product migrated onto property owned by Plaintiffs. (Def. Supp. S.M.F. ¶ 2; Pls. Opp. S.M.F. ¶ 2.) Though Defendant took immediate steps to remediate the spill on Plaintiffs' property, soil testing showed the presence of oil above the Maine Department of Environmental Protection's ("DEP") safety standards. (Pls. Add'l S.M.F. ¶¶ 8-9; Def. Reply S.M.F. ¶¶ 8-9.) In January 2015, Defendant submitted a proposed remedial action plan to DEP outlining a number of remediation options. (Id. ¶ 10.) DEP requested that Defendant remove all contaminated soil from Plaintiffs' property. (Def. Supp. S.M.F. ¶ 3; Pls. Opp. S.M.F. ¶ 3.) DEP set a deadline of July 1, 2015, for Defendant to complete the removal of all contaminated soil. (Id.) However, removal of the contaminated soil never occurred. Defendant asserts that Plaintiffs never provided it with authorization to access their property to conduct the excavation. Plaintiffs assert that Defendant never provided them with information regarding the work to be done on their property. DEP subsequently determined that no further remediation or excavation was required. (Def. Supp. S.M.F. ¶ 14; Pls. Opp. S.M.F. ¶ 14.)
On December 7, 2015, Plaintiffs filed a complaint against Defendant asserting claims for common law trespass, statutory trespass, negligence, nuisance, and strict liability. (Compl. ¶¶ 28-50.) Plaintiffs' complaint sought compensatory damages, double damages, punitive damages, injunctive relief, as well as attorney's fees and costs. (Compl. 8.) On March 26, 2016, Defendant filed this motion of partial summary judgment on Plaintiffs' claim for statutory trespass and their demand for punitive damages. (Def. Mot. Summ. J. 4.) Plaintiffs filed their opposition on April 13, 2016. Defendant filed its reply on April 25, 2016. Resolution of the motion was delayed for several months due to difficulty in scheduling oral argument.
Defendant's motion for summary judgment also asserted that Plaintiff Erik West had not established an ownership interest in the property in order to have standing to pursue this action. (Def. Mot. Summ.
II. Analysis
A. Standard of Review
Summary judgment is appropriate if, based on the parties' statements of material fact and the cited record, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); Dyer v. Deft of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821. "A material fact is one that can affect the outcome of the case. A genuine issue of material fact exists when the [Tact finder] must choose between competing versions of the truth." Dyer, 2008 ME 106, ¶ 14, 951 A.2d 821 (internal citation and quotation marks omitted). When deciding a motion for summary judgment, the court reviews the evidence in the light most favorable to the non-moving party. Id.
If the moving party's motion for summary judgment is properly supported, the burden shifts to the non-moving party to respond with specific facts indicating a genuine issue for trial in order to avoid summary judgment. M.R. Civ. P. 56(e). "To withstand a motion for summary judgment, the plaintiff must establish a prima facie case for each element of their cause of action." Watt v. UniFirst Corp., 2009 ME 47, ¶ 21, 969 A.2d 897 (internal citation and quotation marks omitted). If a plaintiff fails to present sufficient evidence on the essential elements, then the defendant is entitled to a summary judgment. Id. B. Statutory Trespass
Statutory interpretation is a question of law for the court to decide. Liberty Ins. Underwriters, Inc. v. Estate of Faulkner, 2008 ME 149, ¶ 15, 957 A.2d 94. When interpreting a statute, the court's goal is to effectuate the Legislature's intent. Dickau v. Vt. Mut. Ins. Co., 2014 ME 158, ¶ 19, 107 A.3d 621. In order to effectuate the Legislature's intent, the court must first determine whether the statutory language is plain and unambiguous. Dickau v. Vt. Mut. Ins. Co., 2014 ME 158, ¶ 19, 107 A.3d 621. In determining the plain meaning of statutory language, court must take into account the subject matter and purposes of the statute. Id. ¶ 21. The court must also take into account the design, structure, and overall purpose of the language used. Id. ¶ 22. "In the absence of legislative definitions, we afford terms their plain, common, and ordinary meaning." Id. If the statute is unambiguous the court looks no further; the court examines other indicia of legislative intent only when the plain language of the statute is ambiguous. Jordan v. Sears, Roebuck & Co., 651 A.2d 358, 360 (Me. 1994).
Count II of Plaintiffs' complaint is a claim for statutory trespass pursuant to 14 M.R.S. § 7551-B. (Compl. ¶¶ 32-36.) Section 7551-B provides:
1. Prohibition "A person who intentionally enters the land of another without permission" and causes damage to property is liable to the owner in a civil action if the person:
A. Damages or throws down any fence, bar or gate; leaves a gate open; breaks glass; damages any road, drainage ditch, culvert, bridge, sign or paint marking; or does other damage to any structure on property not that person's own; or
B. Throws, drops, deposits, discards, dumps or otherwise disposes of litter, as defined in Title 17, section 2263, subsection 2, in any manner or amount, on property not that person's own.
14 M.R.S. § 7551-B (italics supplied).
2. Liability. If the damage to the property is caused intentionally, the person is liable to the owner for 2 times the owner's actual damages plus any additional costs recoverable under subsection 3, paragraphs B and C. If the damage to the property is not caused intentionally, the person is liable to the owner for the owner's actual damages plus any additional costs recoverable under subsection 3, paragraphs B and C.
Defendant admits that its transport tanker rolled over and released petroleum products onto Plaintiffs' property. (Def. Supp. S.M.F. ¶¶ 1-2.) However, Defendant asserts that Plaintiffs are not entitled to relief under §7551-B because Plaintiffs cannot produce any evidence that an actual "person" entered their property or that such entry was intentional. (Def. Mot. Summ. J. 5.)
Defendant concedes that, as a corporate entity, it is a "person" for purposes of 14 M.R.S. § 7551-B. (Def. Mot. Summ. J. 5.) --------
In response, Plaintiffs do not assert that Defendant, as a legal person, entered upon Plaintiffs' property. Plaintiffs only assert that the petroleum products released from the tanker migrated onto their property. (Pls. Add'l S.M.F. ¶ 7.) Rather, Plaintiffs make three arguments.
First, Plaintiffs argue, "it is well established at common law that a person trespasses by causing an item to enter the property." (Pls. Opp'n to Def. Mot. Summ. J. 10.) Plaintiffs further argue that "[t]here is no reason to believe that the Legislature intended to depart from well established common law[.]" (Id.) However, the statute presumably was enacted in order to supplement or modify otherwise applicable common law rules.
Second, Plaintiffs assert that they have had no opportunity conduct discovery regarding Defendant's intent and precisely what occurred that led to the tanker spill. (Id.) Thus, Plaintiffs are essentially arguing that, because there has been no discovery on these issues, there remain genuine issues of material fact regarding whether Defendant intentionally caused the tanker to roll over and release petroleum products onto Plaintiffs' property. At oral argument, Plaintiffs did not proffer any new facts on this issue.
Third, Plaintiffs argue that, under the § 161 of the Restatement (Second) of Torts, "it is well established that an intentional failure to remove property from land is sufficient to establish the necessary intent even if entry was not intentional." (Id. at 10-11.)
Plaintiffs are correct that, under the common law, a person can commit trespass by causing an item to enter the property of another. See Medeika v. Watts, 2008 ME 163, ¶ 5, 957 A.2d 980. However, the plain and unambiguous language of § 7551-B is clearly more limited than the common law. Section 7551-B plainly and unambiguously applies to only "[a] person who intentionally enters the land of another without permission and causes damage." 14 M.R.S. § 7551-B(1) (emphasis supplied). If the Legislature had intended for § 7551-B to be as expansive as common law trespass, it would have used language indicating that it applied to both a person who intentionally enters the land of another or causes an item to enter the land of another without permission and causes damage. Plaintiffs have set forth no facts that "a person" entered upon their land.
Additionally, § 7551-B plainly and unambiguously applies to only a person who "intentionally enters the land of another without permission and causes damage." 14 M.R.S. § 7551-B(1) (emphasis supplied). Thus, under the plain language of the § 7551-B, the intent required to impose liability for statutory trespass is intent "to enter the land of another" without permission. There are no facts in the record indicating the Defendant acted with any intent to enter Plaintiffs' land. Lastly, Plaintiffs are correct that § 161 of the Restatement states that failure to remove a structure, chattel, or thing tortiously placed on another's land may constitute a trespass. Restatement (Second) of Torts § 161(1) (1979). However, in interpreting § 7551-B, the court is bound by the plain and unambiguous language of the statute, which is clearly more limited than the Restatement in requiring that the entry itself, rather than the failure to remove, be intentional.
Therefore, because Plaintiffs have failed to set forth any material facts demonstrating that "a person" entered their land or that Defendant acted with the requisite intent "to enter the land of another," Plaintiffs are not entitled to recover under 14 M.R.S. § 7551-B. Accordingly, Defendant is entitled to summary judgment on Plaintiffs' claim for statutory trespass in Count II of the Complaint. B. Punitive Damages
In their prayer for relief, Plaintiffs seek punitive damages. (Compl. 8.) To recover punitive damages, a plaintiff must demonstrate "by clear and convincing evidence" that the defendant acted with malice, Laux v. Harrington, 2012 ME 18, ¶ 35, 38 A.3d 318 (citation omitted). To demonstrate malice, a plaintiff must prove either "that the defendant's conduct was motivated by actual ill will," or that the defendant's conduct was "so outrageous that malice is implied." Id. (citation omitted).
Defendant argues that the record is devoid of any evidence of actual ill will on the part of Defendant or conduct that is "so outrageous" that malice could be inferred. (Def. Mot. Summ. J. 7.) According to Defendant, DEP requested that Defendant remove all contaminated soil on Plaintiffs' property by July 1, 2015. (Def. Supp. S.M.F. ¶3.) Defendant asserts that it attempted obtain Plaintiffs' approval to access their property to remove the contaminated soil. According to Defendant, it notified Plaintiffs on April 28, 2015, that excavation work would need to start on May 4, 2015. (Id. ¶4.) On April 30, 2015, Defendant sent Plaintiffs an "Agreement for Site Access" to be signed by Plaintiffs. (Id. ¶ 6.) Defendant sent Plaintiffs a second Agreement for Site Access on May 15, 2015, and informed Plaintiffs that excavation could not begin without its completion. (Id. ¶ 7.) On May 20, 2015, Defendant again requested that Plaintiffs allow it site access to begin remediation. (Id. ¶ 9.) On June 2, 2015, Defendant suggested a meeting between the parties to discuss the remediation plan and to obtain a signed Agreement for Site Access from Plaintiffs. (Id. ¶ 10.) On July 21, 2015, Defendant again requested that Plaintiffs provide it with a signed Agreement for Site Access in order to begin remediation. (Id. ¶¶ 11-12.) Plaintiffs did not provide Defendant with a signed Agreement for Site Access.
In their additional statement of material facts, Plaintiffs admit that excavation was to begin by May 4, 2015, in order for Defendant to remove the contaminated soil and complete restoration by July 1, 2015, as required by DEP. (Pls. Add'l S.M.F. ¶ 11-12.) Plaintiffs admit that they had granted Defendant limited access to their property to place survey stakes at the limits of the excavation. (Id. ¶¶ 17-18.) On May 16, 2015, Plaintiffs responded to Defendant's May 15, 2015 request for signed copy of the Agreement for Site Access by informing Defendant that they would provide authorization for further work, so long as Defendant informed Plaintiffs what work would be done and when. (Id. ¶¶ 20-21.) Plaintiffs did not grant Defendant access, claiming that they had no information about the timing or nature of the excavation proposed. (Id. ¶ 23.) Plaintiffs admit that it also rejected Defendant's July 21, 2015 request for Plaintiffs to return a signed copy of the Agreement for Site Access, stating that it would provide an access agreement as soon as Defendant provided an explanation of the work to be done. (Id. ¶¶ 30-31.) On July 29, 2015, Plaintiffs granted Defendant's consultants access to their property to "mark out" the site to be excavated. (Id. ¶ 33.) The consultants conducted unauthorized testing of the soil and determined that the soil showed reduced concentrations of oil. (Id. ¶ 33-35.) Defendant admits that its consultants conducted unauthorized soil testing. (Def. Reply S.M.F. ¶¶ 33-35.)
Based on the content of the parties' statements of material facts, the court was inclined to grant the Defendant's motion as to the Plaintiffs' punitive damages claim, based on the absence of any admissible evidence of actual or implied malice. However, Plaintiffs proffered at oral argument an offer of proof in the form of a binder of indexed documents that attorney McCarthy indicated were obtained in discovery. These additional materials include documents that, if admitted into evidence and credited by the factfinder, could in the court's view bolster Plaintiffs' claim for punitive damages. The court indicated that it would re-open the Rule 56 process to allow Plaintiffs to supplement the record with the additional materials contained in their offer of proof. However, because Defendant intends to file a further motion for summary judgment as to additional counts of the Complaint, and Plaintiffs may also move for summary judgment on liability issues, and also because there is some discovery yet to be taken relevant to the validity of the punitive damages claim, it is more efficient for the punitive damages issues to be subsumed within that round of motions.
Accordingly, this Order will dismiss the portion of Defendant's Motion for Partial Summary Judgment that relates to punitive damages without prejudice to its renewal in a further motion. This means that some discovery that is relevant only if the Plaintiffs' punitive damages claim survives summary judgment will be deferred until after the court's ruling on whether the claim does survive. Also, the deposition of an out-of-state witness will need to be taken after the discovery deadline, because the witness will not appear without a subpoena issued by the court in that jurisdiction.
III. Conclusion
It is hereby ORDERED AND ADJUDGED AS FOLLOWS:
Defendant Jewett & Noonan Transportation, Inc.'s Motion for Partial Summary Judgment is granted in part. Defendant is granted summary judgment on Count II of Plaintiffs' complaint, for statutory trespass. The motion is dismissed without prejudice as to Plaintiffs' claim for punitive damages, and may be renewed.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this Order by reference in the docket. Dated September 8, 2016
/s/_________
A.M. Horton
Justice, Superior Court