Robin McDonald v. City of Portland , 2020 ME 119 ( 2020 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2020 ME 119
Docket: Cum-19-494
Argued: September 15, 2020
Decided: October 13, 2020
Panel: MEAD, GORMAN, JABAR, HUMPHREY, and CONNORS, JJ.
ROBIN MCDONALD et al.
v.
CITY OF PORTLAND
CONNORS, J.
[¶1] The City of Portland appeals from the denial by the Superior Court
(Cumberland County, O’Neil, J.) of its motion for summary judgment on
immunity grounds in a suit brought by Robert Pelletier and his wife, Robin
McDonald, based on injuries that Pelletier allegedly received after falling on ice
outside of the Portland Police Department. Because the plaza where he fell is
an appurtenance to a public building within the meaning of the Maine Tort
Claims Act, 14 M.R.S. § 8104-A(2) (2020), we affirm.
I. BACKGROUND
[¶2] The following facts are undisputed. On February 17, 2017, Pelletier
slipped and fell on a patch of ice after exiting the lobby of the Portland Police
Department headquarters building. Pelletier fell approximately six to eight feet
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from the door of the building. The area where he fell is a brick-paved plaza that
extends from the entrance of the building to Middle Street and to a parking
garage. The plaza is partially open to the sky above; a portion of the building’s
auditorium overhangs the area where Pelletier fell.
[¶3] The entire area underneath the plaza is part of the Portland Police
Department headquarters building. That part of the building is used as a
holding pen and a parking area for command staff and an evidence technician
truck, and it is accessed through an overhead door that faces Middle Street.
[¶4] The plaza is used by pedestrians for access to the Department
building, a parking garage, and Middle Street. Department staff use the plaza to
park motorcycles and bicycles; however, such parking is not allowed in the area
of the plaza where Pelletier fell. People also use the plaza to eat lunch outside.
[¶5] Photographs of the plaza, with a marking indicating where Pelletier
fell, appear in the record, some of which appear below as Figures 1, 2, and 3.
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Figure 1
Figure 2
4
Figure 3
[¶6] McDonald and Pelletier filed a complaint against the City in 2018,
claiming negligence and loss of consortium. The City asserted a number of
affirmative defenses, including that it was immune from suit because the claims
did not fall within an exception to immunity contained in the Maine Tort Claims
Act. The City sought summary judgment on that ground, and McDonald and
Pelletier opposed the motion, arguing that it should be denied as a matter of
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law, or, alternatively, that it should be denied because of purported issues of
material fact regarding the design, use, and purpose of the plaza.1
[¶7] On November 21, 2019, the court entered an order denying the
City’s motion. Without elaboration, the court concluded that there were
unidentified “material issues of fact in dispute regarding whether or not the fall
took place in an appurtenance to a government building which would be an
exception to immunity.” The City timely appealed. See 14 M.R.S. § 1851 (2020);
M.R. App. P. 2B(c)(1).
II. DISCUSSION
A. Reviewability of the Summary Judgment Motion
[¶8] Appeals from the denial of a motion for summary judgment are
“generally barred by the final judgment rule.” Rodriguez v. Town of Moose River,
2007 ME 68, ¶ 16, 922 A.2d 484. “We have consistently held, however, that the
denial of a motion for summary judgment based on a claim of immunity is
immediately reviewable pursuant to an exception to the final judgment rule.”
J.R.M., Inc. v. City of Portland, 669 A.2d 159, 160 (Me. 1995); see also Polley v.
1 McDonald and Pelletier appear to have abandoned their argument that there is a genuine dispute
of material fact that precludes resolution of the immunity issue but nevertheless contend that the
undisputed facts do not entitle the City to summary judgment as a matter of law. See M.R. App. P.
2C(a)(1) (“An appellee may, without filing a cross-appeal, argue that alternative grounds support the
judgment that is on appeal.”).
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Atwell, 581 A.2d 410, 412 (Me. 1990) (noting that “because immunity is . . .
immunity from suit rather than a mere defense to liability,” it “is effectively lost
if a case is erroneously permitted to go to trial” (emphasis omitted) (quotation
marks omitted)). Pursuant to this exception, we will reach the merits of an
appeal “[e]ven when the trial court decides that there is a dispute of material
fact” so long as the parties do not dispute the facts material to the legal question
of immunity. Rodriguez, 2007 ME 68, ¶¶ 16-17, 922 A.2d 484; Paschal v. City of
Bangor, 2000 ME 50, ¶¶ 1 & n.1, 11, 747 A.2d 1194.
[¶9] In this case, although the court denied the City’s motion for
summary judgment on the basis that there were “material issues of fact in
dispute regarding whether or not the fall took place in an appurtenance to a
government building which would be an exception to immunity,” the parties do
not dispute the location of Pelletier’s fall, the characteristics of the plaza, or the
uses of the plaza, and do not otherwise contend that there are genuine disputes
of material fact. The question of whether the plaza is a public building or an
appurtenance to a public building is therefore a legal question, not a factual one.
See Tolliver v. Dep’t of Transp., 2008 ME 83, ¶ 10 n.5, 948 A.2d 1223 (explaining
that although the issue of immunity can be “intertwined with the facts of a case,”
the availability of immunity pursuant to the Maine Tort Claims Act “generally
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turns on the proper interpretation of the statute, absent a dispute of material
fact, and is therefore a question of law”).2 Accordingly, we reach the merits of
the City’s appeal. See Rodriguez, 2007 ME 68, ¶¶ 16-17, 922 A.2d 484; Paschal,
2000 ME 50, ¶¶ 1 & n.1, 11, 747 A.2d 1194.
B. The Public Building Exception to Immunity
[¶10] The City argues that the undisputed facts show that the plaza
where Pelletier fell does not fall into the public building exception to sovereign
immunity, and, therefore, both Pelletier’s claim and McDonald’s derivative loss
of consortium claim should be disposed of on immunity grounds. See Brown v.
Crown Equip. Corp., 2008 ME 186, ¶ 23, 960 A.2d 1188 (holding “that loss of
consortium claims necessarily arise from the same negligent act as the
underlying tort claims and are therefore subject to the same rules and
limitations”).
[¶11] “We review a denial of a motion for summary judgment based on
a claim of immunity for errors of law, viewing the evidence in the light most
favorable to the nonmoving party.” Rodriguez, 2007 ME 68, ¶ 19, 922 A.2d 484.
If there were a genuine dispute of material fact that affected the resolution of the legal question
2
of whether the plaza falls within an exception to the Maine Tort Claims Act, we would be unable to
review the denial of the City’s motion for summary judgment. See Wilcox v. City of Portland,
2009 ME 53, ¶ 14, 970 A.2d 295 (“Denial of a motion for summary judgment based on the
determination that the immunity issues cannot be resolved until fact-finding occurs is not a ruling
subject to an interlocutory appeal before the trial court can make the necessary fact-findings.”).
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Absent a dispute of material fact, whether or not a governmental entity is
entitled to immunity is a question of law that we review de novo. See Tolliver,
2008 ME 83, ¶¶ 10 n.5, 11, 948 A.2d 1223.
[¶12] Governmental immunity is codified in the Maine Tort Claims Act
(MTCA), 14 M.R.S. §§ 8101-8118 (2020). The MTCA provides as a general rule
that “all governmental entities shall be immune from suit on any and all tort
claims seeking recovery of damages.” Id. § 8103(1). This immunity, however,
is limited by several exceptions, including the public building exception, which
states that “[a] governmental entity is liable for its negligent acts or omissions
in the construction, operation or maintenance of any public building or the
appurtenances to any public building.” Id. § 8104-A(2). Exceptions to
immunity, such as the public building exception, “are strictly construed so as to
adhere to immunity as the general rule.” See Searle v. Town of Bucksport,
2010 ME 89, ¶ 9, 3 A.3d 390.
[¶13] As an initial matter, there appears to be no dispute that the
Department building—being accessible to the public, owned by the City, and
serving a public function—is a public building within the meaning of the MTCA.
See Rodriguez, 2007 ME 68, ¶ 32, 922 A.2d 484 (“A ‘public building’ is a building
that is accessible to the public; especially one owned by the government.”
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(alterations omitted) (quotation marks omitted)). Additionally, McDonald and
Pelletier do not contend that the plaza is itself a public building. Such an
argument would be unavailing given that the plaza, which is outdoors and only
partially enclosed, lacks the rudimentary characteristics of a building.
See Searle, 2010 ME 89, ¶ 10, 3 A.3d 390 (recognizing that “definitions of the
term building indicate an edifice enclosed by walls and covered by a roof”); Reid
v. Town of Mount Vernon, 2007 ME 125, ¶ 22, 932 A.2d 539 (noting that an open
area transfer station could not be considered a building); Adriance v. Town of
Standish, 687 A.2d 238, 240 (Me. 1996) (holding that a “permanent, fully
enclosed” transfer station was a public building (emphasis added)).
[¶14] Rather, McDonald and Pelletier contend that the plaza is part of
the Department building, such that together they make up a single public
building, or, alternatively, that the plaza is an appurtenance to the building. Our
caselaw suggests that whether the plaza is an external part of the building or
an appurtenance to the building is a distinction without a difference.
See Rodriguez, 2007 ME 68, ¶ 28 n.3, 922 A.2d 484 (describing an external set
of stairs leading into a public building as part of the building and also as an
appurtenance).
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[¶15] In accordance with section 8104-(A)(2), “an appurtenance is an
object or thing that belongs or is attached to a public building, and does not
include personal property maintained outside the building.” Sanford v. Town of
Shapleigh, 2004 ME 73, ¶ 11, 850 A.2d 325. In determining whether something
“belongs” to a building, however, we have rejected a function-based approach
in favor of using the “well-established definition of a fixture to determine
whether an object [is] an appurtenance.” Searle, 2010 ME 89, ¶¶ 13-14,
3 A.3d 390. Thus, to be an appurtenance, the object in question must be a
fixture rather than personal property. Id. ¶ 14. A fixture is something that is
(1) physically annexed to the realty, (2) adapted to the realty, and (3) intended
to be irremovable from the realty. Id. ¶¶ 15-23. In contrast, personal property
is any “movable or intangible thing that is subject to ownership and not
classified as real property.” Id. ¶ 15 (quotation marks omitted).
[¶16] The plaza at issue in this case falls squarely within the definition
of a fixture for several reasons. First, the plaza is annexed to the Department
building because it serves as the roof to the portion of the building underneath
it and cannot be freely moved or relocated. See id. ¶¶ 17-18. Second, the plaza
is adapted to the unique needs of the Department building in that it is necessary
for the proper function of the building—as McDonald and Pelletier point out,
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the building’s lobby would be wholly inaccessible without the plaza. See id.
¶¶ 19-20. Third, the annexation and essential nature of the plaza to the
functioning of the Department building show that the City had the “requisite
intent to make” the plaza “an irremovable part” of the Department building. Id.
¶¶ 21-22. Accordingly, the plaza falls within the definition of an appurtenance
for the purposes of 14 M.R.S. § 8104-A(2). Compare Searle, 2010 ME 89,
¶¶ 17-23, 3 A.3d 390 (holding that easily-disassembled, generic bleachers that
were not annexed to the land were personal property, not appurtenances to a
public high school), and Sanford, 2004 ME 73, ¶ 12, 850 A.2d 325 (holding that
a freestanding trash bin outside of a waste facility building was personal
property, not an appurtenance), with Rodriguez, 2007 ME 68, ¶ 28 n.3,
922 A.2d 484 (noting that external stairs leading into a public building fall
within the definition of an appurtenance), and Donovan v. City of Portland,
2004 ME 70, ¶ 15, 850 A.2d 319 (describing “stairs” as “appurtenances”).
[¶17] The City does not vigorously argue that the plaza fails to meet this
three-part test. Instead, it contends that the plaza cannot be an appurtenance
because it is essentially used as a parking area and/or sidewalk. See 14 M.R.S.
§ 8104-A(4) (“A governmental entity is not liable for any defect, lack of repair
or lack of sufficient railing in any . . . sidewalk, parking area, . . . or in any
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appurtenance thereto.”); see also Kitchen v. City of Calais, 666 A.2d 77, 78-79
(Me. 1995) (“A parking area constitutes neither a public building nor an
appurtenance to a public building. A contrary interpretation would make the
provisions of sections 8104-A(2) and (4) redundant.”).
[¶18] The MTCA does not define the terms “parking area” and
“sidewalk,” see 14 M.R.S. §§ 8101-8118, and we have never expressly defined
them. “As a general rule, words and phrases that are not expressly defined in a
statute must be given their plain and natural meaning,” unless doing so would
result in “absurd, illogical, or inconsistent results.” Searle, 2010 ME 89, ¶ 8,
3 A.3d 390 (quotation marks omitted).
[¶19] Although there is no dispute that Department staff use part of the
plaza to park motorcycles and bicycles, the City conceded that such parking is
not permitted on the part of the plaza where Pelletier fell. Thus, the area of the
plaza where Pelletier fell does not fit within the “plain and natural meaning” of
the phrase “parking area.” Id.; cf. Kitchen, 666 A.2d at 78-79 (holding that a
“blacktopped area where vehicles are parked” with curbing “to keep vehicles
from parking too close to” a public building was a parking area within the
meaning of section 8104-A(4) rather than an appurtenance). Moreover, even if
the entire plaza—which is physically part of the Department building and
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serves several different purposes—did fit within the plain meaning of the
phrase “parking area,” to hold that a government entity can defeat the public
building exception to immunity by simply allowing staff to park motorcycles or
bicycles on what would otherwise be an appurtenance would be an absurd or
illogical result. Cf. Blue Yonder, LLC v. State Tax Assessor, 2011 ME 49, ¶ 19,
17 A.3d 667 (declining to adopt an “absurd” interpretation of a statute that
“would permit avoidance of [a] use tax simply by transporting property outside
of Maine once within twelve months after its out-of-state purchase”).
[¶20] Similarly, the plaza does not fit within the plain and natural
meaning of the word “sidewalk.” See Sidewalk, The American Heritage
Dictionary of the English Language (5th ed. 2016) (defining “sidewalk” to mean
“[a] paved walkway along the side of a street” (emphasis added)); Sidewalk, New
Oxford American Dictionary (3d ed. 2010) (defining “sidewalk” to mean “a
paved path for pedestrians at the side of a road” (emphasis added)); Sidewalk,
Webster’s Third New International Dictionary (2002) (defining “sidewalk” to
mean “a walk for foot passengers usu[ally] at the side of a street or roadway: a
foot pavement” (emphasis added)); cf. Donovan, 2004 ME 70, ¶¶ 4, 9, 12, 15,
850 A.2d 319 (suggesting that an area leading from a parking lot toward a
public school was a sidewalk).
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[¶21] Finally, the City contends that even if the plaza is part of the
Department building, McDonald’s and Pelletier’s claims do not stem from the
City’s negligent maintenance or operation of the building, but rather the City’s
“failure to treat ice on a walkway” and, therefore, their claims do not trigger an
exception to immunity. See, e.g., ABT & A Co. v. State, 644 A.2d 460, 460
(Me. 1994) (holding that the public building exception was inapplicable where
claims were based on the State’s supervision of prisoners rather than the
“operation or maintenance” of a correctional facility). Contrary to the City’s
argument, the City’s failure to treat the icy conditions of the plaza could be
considered a “negligent act[] or omission[]” in the “maintenance” of the plaza.3
14 M.R.S. § 8104-A(2); see Maintenance, Black’s Law Dictionary (11th ed. 2019)
(defining “maintenance” to mean “[t]he care and work put into a property to
keep it operating and productive; general repair and upkeep”); Isaacson v.
Husson Coll., 297 A.2d 98, 104 (Me. 1972) (“[T]he defendant was not
substantially impeded in its maintenance of the pathways and area ways free
and clear of snow.” (emphasis added)); Denman v. Peoples Heritage Bank, Inc.,
3 Like the terms “parking area” and “sidewalk,” the MTCA does not define “maintenance,” see
14 M.R.S. §§ 8101-8118 (2020), and we have never expressly defined it. Accordingly, we must give
it its “plain and natural meaning.” Searle v. Town of Bucksport, 2010 ME 89, ¶ 8, 3 A.3d 390 (quotation
marks omitted).
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1998 ME 12, ¶¶ 1-2, 704 A.2d 411 (describing “snow and ice removal” as part
of a “maintenance contract” (emphasis added)).
[¶22] In summary, although the court erred when it found that there was
a genuine dispute of material fact that precluded resolution of the question of
immunity, the undisputed facts show that the plaza falls within the public
building exception to governmental immunity and that the City is therefore not
immune from McDonald’s and Pelletier’s claims. Accordingly, we affirm the
denial of the City’s motion for summary judgment on that alternative basis. See
Sears, Roebuck & Co. v. State Tax Assessor, 2012 ME 110, ¶ 13, 52 A.3d 941
(noting that we may affirm a judgment on grounds different from the trial
court’s reasoning); Jorgensen v. Dep’t of Transp., 2009 ME 42, ¶ 21, 969 A.2d 912
(declining to “disturb the trial court’s denial of a summary judgment in favor of
the Department based on discretionary function immunity” after concluding
that the Department was not entitled to such immunity).
The entry is:
Judgment affirmed.
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John J. Wall, III, Esq. (orally), Monaghan Leahy, LLP, Portland, for appellant City
of Portland
Gerard P. Conley, Jr., Esq., and Kenneth Hovermale, Esq. (orally), Cloutier,
Conley & Duffett, P.A., Portland, for appellees Robin McDonald and Robert
Pelletier
Cumberland County Superior Court docket number CV-2018-366
FOR CLERK REFERENCE ONLY