Opinion
SUPERIOR COURT CIVIL ACTION DOCKET NO. CUMSC-RE-15-247
09-08-2016
ERIK WEST, KATHLEEN WEST, JOHN PRIDE, and JOANN PRIDE, Plaintiffs, v. JEWETT & NOONAN TRANSPORTATION, INC., Defendant.
STATE OF MAINE
CUMBERLAND, SS.
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. Dep't 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 [fact 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.RS. § 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