Opinion
CV-19-048
04-15-2020
SUSAN GOLDING, Plaintiff v. HI-WAY SAFETY SYSTEMS, INC., et al., Defendants
Plaintiff-Christian Lewis, Esq. Def Hi-Way Safety-Tracy Hill, Esq. Def City of Portland- Russell Pierce Esq. Def Zebr Striping-John Topchik, Esq. Def Opechee-Joseph Cahoon, Esq.
Plaintiff-Christian Lewis, Esq.
Def Hi-Way Safety-Tracy Hill, Esq.
Def City of Portland- Russell Pierce Esq.
Def Zebr Striping-John Topchik, Esq.
Def Opechee-Joseph Cahoon, Esq.
ORDER
Thomas D. warren, Justice
Before the court is a motion by defendant Hi-Way Safety Systems, Inc. for summary judgment.
In this case plaintiff Susan Golding is suing the City of Portland and three contractors, Hi-Way Safety Systems, Zebra Striping Inc., and Opechce Construction Corp. Golding alleges that she was injured on July 27, 2018 when she stepped into a pothole that was not readily visible or apparent in the crosswalk at. the intersection of Fore and Hancock Streets.
Zebra Striping was added in Gelding's First amendment to the complaint, Opechce Construction was added in Golding's third amendment to the complaint, A number of the claims against the City were dismissed in the court's March 9, 2020 order, but the City remains as a defendant on Count XI of the third amended complaint.
In her third amended complaint Golding alleges that Hi-Way Systems knew or should have known of the dangerous condition at the intersection and that it created or allowed a dangerous condition to exist by painting over an existing pothole (Count I). She also alleges that Hi-Way Systems breached a duty to provide a safe premises (Count II), that Hi-Way Systems breached a duly to warn of a dangerous condition (Count III), and that Hi-Way Systems breached a duty to inspect its premises to discover dangerous latent conditions (Count IV).
Summary Judgment
Summary 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 judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements. Kg., Johnson v. McNeil, 2002 ME 99 ¶ 8, 800 A.2d 702. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodngue, 1997 ME 99 ¶ 8, 694 A.2d 924.
Discussion
The basis of Goiding's claim is that the crosswalk stripes at the intersection in question painted over a pothole and created a dangerous condition. It is not disputed that, under a contract with the City, Hi-Way Systems painted stripes at the intersection in question both in September 2017 and again after Golding was injured on July 27, 2018.
Hi-Way Systems has offered evidence that another contractor repainted the crosswalk after September 2017 and before Goiding's injury on July 27, 2018. Hi-Way Systems SMF ¶ 4. Golding does not directly dispute this but argues that the crosswalk had been negligently painted by one or more contractors, and that Hi-Way Systems is the "last known contractor to have painted the crosswalk, in late September 2017." Golding SAMF ¶¶ 2, 4. [
Although not referenced in the summary judgment motion, Goiding's claims against Zebra Striping and Opechee Construction are based on the contention that Zebra Striping and Opechee Construction also created a dangerous condition by painting over the pothole in the crosswalk.
Treating the summary judgment record in the light most favorable to Golding, the court concludes that there is a factual dispute for trial as to whether the crosswalk striping that was present at the time of Golding's injury on July 27, 2018 (and is alleged to have constituted a dangerous condition) was striping that Hi-Way Systems had painted 10 months earlier. Hi-Way has offered opinion testimony that the striping was too new to have been applied 10 months earlier. Golding has offered opinion testimony that the striping present on July 27, 2018 could have been the striping applied by Hi-Way Systems 10 months earlier.
Since Hi-Way Systems could be held liable if it created a dangerous condition, see Colvin v. A R Cable Service-Me, 1997 ME 163 ¶ 7, 697 A.2d 1289, this is sufficient to defeat Hi-Way Systems's motion for summary judgment. At the same time, the court does not adopt Goiding's alternative theory that Hi-Way Systems had a duty to inform the City of the danger even if it did not create the danger. Golding has offered no authority for this theory and the court reserves decision on whether this theory could conceivably constitute a basis for liability on the part of Hi-Way Systems.
Both Hi-Way Systems and Golding have submitted copies of a photo of the crosswalk that was apparently taken shortly after Golding was injured. The shading of the photos differ slightly, which has led to a fruitless dispute between the parties as to whether there may have been some enhancement of the photo. The major difference appears to be that one copy bears a notation as having been marked as an exhibit at the Thomas deposition and is printed on shinier paper. The other purports to be the original -although no foundation is offered as to who took the photo or how any print from a digital photograph can qualify as more original than any other. The court has disregarded this dispute in ruling on the pending motion. ---------
The entry shall be:
1. The motion for summary judgment filed by defendant Hi-Way Safety Systems Inc. is denied.
2. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a).
Entered on the Docket: 09/21/2020
In its Reply SMF, Hi-Way Systems challenges some of the opinion testimony submitted by Golding. The court agrees that the facts stated in the Marceau affidavit and the attached Google Earth photographs allow Marceau to express an opinion that the striping in place at or around the time of Goiding's injury could have been applied by Hi-Way Systems 10 months earlier. The court does not accept all of Marceau's other opinions, such as those expressed in Marceau affidavit ¶ 23.