Opinion
Civil Action CV-19-59
02-19-2020
STEVEN V. HAMMERTON and CANDICE HAMMERTON Plaintiffs, v. B & M DEVELOPS, INC. d/b/a BOUFFARD McFARLAND BUILDERS, Defendant.
Attorney for; STEVEN V HAMMERTON Docket No AUBSC-CV-2019-000S9 MARC N FRENETTE - RETAINED TRAFTON MATZEN BELLEAU & FRENETTE TEN MINOT AVENUE Attorney for: CANDICE HAMMERTON MARC N FRENETTE - RETAINED TRAFTON MATZEN BELLEAU & FRENETTE TEN MINOT AVENUE Attorney for: B AND M DEVELOPERS INC JONATHAN BROGAN - RETAINED 04/08/2019 NORMAN HANSON & DETROY LLC
Attorney for; STEVEN V HAMMERTON Docket No AUBSC-CV-2019-000S9 MARC N FRENETTE - RETAINED TRAFTON MATZEN BELLEAU & FRENETTE TEN MINOT AVENUE
Attorney for: CANDICE HAMMERTON MARC N FRENETTE - RETAINED TRAFTON MATZEN BELLEAU & FRENETTE TEN MINOT AVENUE
Attorney for: B AND M DEVELOPERS INC JONATHAN BROGAN - RETAINED 04/08/2019 NORMAN HANSON & DETROY LLC
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Valerie Stanfill, Justice
Before the Court is Defendant's Motion for Summary Judgment. It is undisputed that Defendant built a custom home for Plaintiffs on land Plaintiffs owned, When the home was turned over to Plaintiffs, there was no railing on the deck stairs, a fact Defendant apparently acknowledged at the time would or should be remedied. Some four months later there was no railing, and Mr. Hammeiton fell on the stairs and injured himself.
Defendant believes this case falls within the doctrine of caveat emptor, and therefore, it had no duty to prevent the Plaintiff's injuries. For the following reasons, the Defendant's motion is denied.
Summary judgment is granted when "there is no genuine issue as to any material fact" and the moving party "is entitled to judgment as a matter of law." M.R. Civ, P. 56(c). "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," Lougee Conservancy v. City Mortgage, Inc., 2012 ME 103, ¶ 11, 48 A.3d 774 (quotation omitted). To survive a defendant's motion for summary judgment, the plaintiff must establish a prima facie case for every element of the plaintiff's cause of action. See Savell v. Duddy, 2016 ME 139, J) 18, 147 A.3d 1179.
On summary judgment, the court considers specific facts and any reasonable inferences that may be drawn from the facts. Curtis v. Porter, 2001 ME 158, ¶ 9, 784 A.2d 18. Additionally, the nonmoving party benefits from all "favorable inferences that may be drawn from the facts presented." Id. (quotation marks omitted). "When facts or reasonable inferences are in dispute on a material point, summary judgment may not be entered." Id.
Defendant first argues-pursuant to the doctrine of caveat emptor-it did not owe a dnty to Plaintiffs because Plaintiffs were aware of the stairs' patently defective condition and decided to take possession of the home anyway. Absent a duty to Plaintiffs, Defendant argues summary judgment must be granted as to Count 1, Mr. Hammerton's negligence claim. The court disagrees.
Maine courts have not applied the doctrine of caveat emptor to builder-vendors; rather, builder-vendors do have a duty to the purchaser. See Wimmer v. Down East Properties, Inc., 406 A.2d 88, 93 (Me, 1979) ("[n]o satisfactory reason appears for applying a rule of caveat emptor in the sale of new houses by a builder-vendor."). See also Gosselin v. Better Homes, Inc., 256 A.2d 629, 639 (Me. 1969); Parsons v. Beaulieu, 429 A.2d 214, 218 (Me. 1981). Further, the Court is unpersuaded by the Defendant's assertion that this case properly falls under the purview of §352 of the Restatement (Second) of Torts. Builder-vendors are distinguished from sellers of land in a critical aspect: sellers of raw land do not have a duty to ensure the land they are selling meets the requirements under a set of regulations, such as building codes. A seller of land is not creating a product to sell. Builder-vendors sell highly complex structures that must meet certain standards. The court disagrees that a builder-vendor cannot be held liable for incomplete work that creates a foreseeable risk of injury even after it fails to keep its promise to come back and remedy the problem it created by failing to complete its work. Allowing bnilder-vendors to build incomplete homes-which are not built to code-and then escape liability because they pointed out the aspects of the home that were potentially dangerous would circumvent the building codes which are in place to ensure people are buying safe homes.
Plaintiffs have shown both that there is a duty and that there are facts from which one could find Defendant liable. Summary judgment is denied as to Count 1.
Comparative negligence, of course, remains an issue.
The motion is also denied as to Counts II and III. Count II is a loss of consortium claim; Defendant's only argument is that summary judgment on Count 1 necessarily leads to summary judgment on the derivative claim. Having denied summary judgment as to Count I, it is also denied as to Count II. Finally, Plaintiffs have provided a prima facie case that Defendant breached its implied warranty of workmanlike performance and therefore Defendant's motion as to Count III is also denied.
The entry is: Defendant's Motion for Summary Judgment is denied. Pursuant to M, R. Civ. P. 79(a) the Clerk is hereby directed to incorporate this Order by reference in the docket.