Opinion
CV-19-1
11-03-2020
R.J. BRENT LEVESQUE, Plaintiff, v. CITY OF BATH, Defendant
ORDER ON DEFENDANTS MOTION FOR SUMMARY JUDGMENT
Daniel I. Billings, Justice
INTRODUCTION
The matter before the court is whether Plaintiff R.J. Brent Levesque's ("Levesque") claims against the City of Bath ("the City") under the Highway Defect Statute survive the City's Summary Judgment Motion. Levesque raises three main arguments: (1) that this motion is untimely and should be denied as a sanction under M.R. Civ. P. 16; (2) that the City is barred from taking this position by the doctrine of judicial estoppel; and (3) that the statute should be interpreted more broadly to allow suit by any person injured by a condition on a highway that would potentially be dangerous to travelers. For the reasons discussed below, the motion is GRANTED.
BACKGROUND
The facts in this case are not materially in dispute. Levesque has lived at his house on 409 High Street in Bath, Maine for over twenty years. (Supp.'g S.M.F. ¶ 5.) His house sits 8-10 feet from the sidewalk which spans between 3 and 3.5 feet alongside High Street. (Supp.'g S.M.F. ¶ 6.) The alleged harm in this case concerns two things. First, Levesque contends that the City has been negligent in its maintenance of the road by inadequately plowing or clearing drains, causing flood damage to his property. (Supp.'g S.M.F. ¶ 10.) He also alleges that a 2014 re-design project on High Street was conducted in a negligent manner, which also caused flooding.
Levesque filed a complaint dated January 10, 2019, in which he made these allegations. Levesque alleged claims under the Maine Tort Claims Act ("MTCA", 14 M.R.S. §§ 8101-8118 (2020), the Sewer Maintenance Statute ("SMS"), 23 M.R.S. § 3251 (2020), and the Highway Defect Statute ("HDS"), 23 M.R.S. § 3655 (2020). After discovery closed, the City moved for partial summary judgment on October 11, 2019, seeking a declaration that Levesque's claims were not cognizable under the MTCA or the SMS. The court granted the motion on April 22, 2020. The City now moves for summary judgment on the remaining claim, arguing that Levesque's claims also fall outside the scope of the HDS.
STANDARD OF REVIEW
Summary judgment is granted to a moving party where "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). "Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted." M.R. Civ. P. 56(h)(4). In order to controvert an opposing party's factual statement, a party must "support each denial or qualification by a record citation." M.R. Civ. P. 56(h)(2). Assertion of material facts must be supported by record references to evidence that is of a quality that would be admissible at trial." HSBC Mortg. Servs. v. Murphy, 2011 ME 59 ¶ 9, 19 A.3d 815.
DISCUSSION
The City argues that Levesque's claims fall outside the HDS, which it argues only creates a cause of action for travelers on public highways. Levesque responds by first arguing that the City's motion is untimely. On the substance of the motion, he argues that the City construes the HDS too narrowly and is estopped from raising these issues by judicial estoppel.
1. Untimeliness
Levesque's untimeliness argument relies on three facts: that the instant motion was submitted after the motion deadline in the court's Scheduling Order, that all arguments raised in the motion could have been raised in its first motion for summary judgment, and that the motion will have the effect of further delaying trial in the case. Levesque's contention is that the motion should be denied as a sanction for its untimely submission under M.R. Civ. P. 16(d) in light of these facts.
M.R. Civ. P. 56(b) provides that a defending party in a case may move for summary judgment "at any time, but within such time as to not delay the trial." As the City correctly notes, the trial court has discretion whether to allow a late filed summary judgment motion when doing so would not delay the trial. Levis v. Konitzky, 2016 ME 167, ¶ 17, 151 A.3d 20. Where there is a scheduling order that imposes a deadline, better practice is still to file a motion asking the court for leave to file a late motion if new grounds develop late in the case. Id. at ¶ 16. However, the court still has considerable discretion in determining whether to grant this late motion. Id.
There are no new grounds raised in the City's motion, only a new legal argument. Levesque is correct when he points out that these arguments could easily have been raised in the previous summary judgment motion. It is also worth noting that the City did not move for leave to file this motion. Best practices aside, the salient question is whether considering the City's new motion for summary judgment would delay trial. The motion was filed August 3, 2020, four months before the earliest potential trial date in November 2019 due to delays in civil trials brought about by COVID-19. To date, there is still a great deal of uncertainty surrounding the scheduling of trial dates. No jury session has been scheduled on Sagadahoc County matters and only criminal jury trials are being scheduled anywhere in the state at this time. In light of this, and absent any indication of bad faith, the court will hear the motion.
2. judicial Estoppel
Levesque argues that the City is barred from moving for summary judgment on his HDS claims by the doctrine of judicial estoppel. Specifically, he argues that the City took the position that his claims were cognizable under the HDS and is therefore estopped from arguing the reverse here.
The doctrine of judicial estoppel "generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." Me. Educ. Ass'n v. Me. Cmty. College Sys. Bd. Of Trs., 2007 ME 70, ¶ 16, 923 A.2d 914 (quoting New Hampshire v. Maine, 532 U.S. 742, 749 (2001)). "The contours of the judicial estoppel doctrine are not sharply defined, and there is no mechanical test for determining its applicability." Id. ¶ 17. However, the Law Court has adopted three factors from New Hampshire v. Maine to guide the analysis:
(1)whether the party's later position is clearly inconsistent with its earlier position;
(2)whether the party succeeded in persuading a court to accept that party's earlier position; and
(3)whether an unfair advantage or detriment would be created.Me. Educ. Ass'n, 2007 ME 70, ¶ 18, 923 A.2d 914. This case does not fit any of the factors.
First, contrary to Levesque's assertion, it does not appear that the City was taking the affirmative position that plaintiff's claims were cognizable under the HDS. To support his characterization of the City's prior position, Levesque quotes their reply brief where they state that his claims are "only cognizable pursuant to the HDS." (Def.'s Reply to Pl's Opp. First Mot. Summ. J. at 1, 9.) This ignores the many conditional statements in the City's filings on that motion which say that Levesque's claims "may" fall within the HDS or that they "potentially" do. (Def.'s Mot. Partial Summ. J. at 1, 11.) It is fairly obvious that the City's position in its prior motion was that it did not want to litigate the HDS issue at that time, not that it was conceding its applicability to Levesque's claims. At the very least, its prior position is not clearly inconsistent with its current one.
Second, even if the City were in fact arguing that the HDS applies to Levesque's claims, the court clearly did not adopt that position. At most, the court's order states that "the City does not dispute that plaintiff is potentially entitled to relief" under the statute. The court did not accept the position that the HDS does apply to Levesque's claims, only that it might. Thus, the second factor weighs against applying judicial estoppel.
Finally, no unfair advantage or detriment would be created by allowing the City to argue its current position. These issues were not litigated on the prior summary judgment motion. Levesque seems to argue that the City prejudiced him by convincing the court to close down his other avenues for relief because it believed that he would be able to recover under this statute. This mischaracterizes the court's prior holding. The court granted partial summary judgment on two other statutes and left the issue of the HDS for another day. Levesque did not suffer a detriment at all, let alone an unfair one.
In light of the above, the City's arguments are not barred by judicial estoppel.
3. Statutory Interpretation
The substance of the dispute at issue is whether the HDS applies to all people who sustain injuries as a result of a highway defect, or whether it only applies to "travelers." The City points to cases which endorse the latter interpretation, Levesque argues that these cases are too antiquated to be relied on and that the statute has been updated since then to enable actions by any person, so long as they were injured by a defect that would be dangerous to travelers.
The HDS provides that "highways, town ways and streets legally established shall be opened and kept in repair so as to be safe and convenient for travelers with motor vehicles." 23 M.R.S. § 3651 (2020). It further provides that "a person who receives any bodily injury or suffers damage in the person's property through any defect or want of repair or sufficient railing in any highway, town way, causeway or bridge may recover for the same in a civil action." 23 M.R.S. § 3655 (2020).
The Law Court has held that these provisions "were clearly intended to be in harmony with each other." Cunningham v. Inhabitants of Frankfort, 104 Me. 208, 211, 70 A. 441, 442 (1908). The court went on to clarify that these provisions "have always been construed to mean that a plaintiff is entitled to recover damage only when he suffers it through any defect or want of repair that will prevent the way from being safe and convenient for travel." Id.
The City cites other cases, all of which hold that the duty of towns to keep their roads free of defects is only owed to travelers. In Leslie v. City of Lewiston, for instance, the court said the following:
The statute requires cities and towns to keep their "ways safe and convenient" for travellers only; and when this is done they have no further duties or responsibilities in relation to them. Hence, when the statute further provides that "any person" who suffers damage through any defect in a way, shall have a remedy, it necessarily refers to that class of persons who were, not only in the lawful use of it, but for whose use and whose safety and convenience it was established.62 Me. 468, 470 (1873). Levesque argues that these cases should not apply to the case at bar, because they are out of date with updates to the statute. However, he is unable to point to a single case that supports his more restrictive reading. In fact, more recent cases seem to reflect an understanding that this is settled law. See, e.g., Curtis v. Ellsworth, 292 A.2d 197, 199 (Me. 1972) (describing this statute as providing for "the liability of cities and towns for damages sustained by travelers by reason of defects in highways").
While Levesque is correct that the statute at issue has been subject to a "multitude of amendments/' Thorbjhonson v. Rockland Rockport Lime Co., Inc., 275 A.2d 588, 592-97 (Me. 1971), he fails to point to any amendment that would imply that the statute has changed in such a way as to negate the precedential value of these cases. He points to the most recent amendment, passed in 2017, which changed the description of the party who could sue from "whoever" to "a person." P.L. 2017 Ch. 402 § C-74. However, a simple glance at that amendment makes it quite clear that the Legislature was amending the statute to remove the male pronouns that followed and render the statute gender neutral. More importantly, the two statutory provisions that are "intended to be in harmony with each other" still refer to travelers when considered as a cohesive whole.
The case law and legislative history is quite clear on this issue. Maine courts do not find liability under the HDS for persons who were not using the road as a traveler. Here, Levesque's harm does not arise from a use of the road at all, as a traveler or otherwise. His claims arise from his ownership of property abutting the road. This is not within the scope of the HDS, so summary judgment will be granted for the City.
CONCLUSION
For the foregoing reasons, the City of Bath's Motion for Summary Judgment is GRANTED. Judgment is entered for the Defendant, plus costs.
The clerk is directed to incorporate this Order by reference in the docket in accordance with M.R. Civ. P. 79(a).