Alexander v. Mitchell

• Decision Date: 14 August 2007
• Docket Number: Docket: Pen-06-611.
• Parties: Steven ALEXANDER v. Philip MITCHELL.
• Court: Maine Supreme Court

930 A.2d 1016

2007 ME 108

Steven ALEXANDER v. Philip MITCHELL.

Docket: Pen-06-611.

Supreme Judicial Court of Maine.

Argued: May 24, 2007.

Decided: August 14, 2007.

N. Laurence Willey, Esq., Thomas M. Matzilevich, Esq., Marie E. Hansen, Esq. (orally), Willey Law Offices, Bangor, for the appellant.

David L. Herzer, Esq. (orally), Norman, Hanson & DeTroy, Portland, for the appellee.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.

SAUFLEY, C.J.

[¶ 1] The question before us is this: Does a person or company that has contracted with a municipality to plow, salt, and sand the town's roads owe a general duty of care to all members of the public using those roads based on the terms of the contract? In the circumstances of the matter before us, we conclude that no such duty is owed.

[¶ 2] Steven Alexander appeals from the Superior Court's grant of a summary judgment (Penobscot County, Mead, J.) in favor of the plowing contractor, Philip Mitchell. Alexander contends that the court erred in determining that Mitchell did not owe a duty of care to Alexander's wife, Michelle, who died in a motor vehicle collision on a slippery road in the Town of Glenburn. Because we agree with the motion court that the law in Maine does not impose a duty on Mitchell under these circumstances, we affirm the judgment.

I. BACKGROUND

[¶ 3] A major snowstorm blanketed the Town of Glenburn on December 15, 2003 leaving snow and ice on the Town's roadways. On December 16, Michelle Alexander and her son were involved in a collision on Pushaw Road in Glenburn with a van that was owned by Adelphia Cablevision Corporation and driven by Adrian Miller. Michelle, who had been operating her vehicle, died in the accident.

[¶ 4] At the time of this collision, Philip Mitchell was contractually obligated to the Town to plow several of its roads, including Pushaw Road. Pushaw Road is a state aid highway¹ that is used by the public on a daily basis. By contract, Mitchell was obligated to plow the roads for which he was responsible when the depth of snow on the roads exceeded one-and-one-half inches, to clear accumulated slush, and to provide at least three trucks for regular service. Mitchell was characterized in the contract as an independent contractor and was required to maintain general and automobile liability insurance policies. Mitchell also agreed to indemnify the Town from all claims arising out of negligent acts or omissions occurring during the course of his duties under the contract.

[¶ 5] On October 31, 2005, Steven Alexander, both individually and as the personal representative of Michelle's estate, filed a complaint against Adelphia, Miller, and Mitchell. Alexander did not sue the Town, nor would such a claim have been successful. See 23 M.R.S. § 1005-A(1) (2006).

[¶ 6] The complaint alleged that Pushaw Road was covered with snow and slush at the time of the accident and had not been properly cleared or sanded; that Miller and Adelphia were liable for Michelle's injuries and death; and that Mitchell was liable for Michelle's death because he had negligently failed to clear and maintain Pushaw Road, and had therefore violated his duty of care to her. Mitchell filed a cross-complaint against Adelphia and Miller for contribution or indemnification based on their "negligence, breach of contract, statutory liability, and/or intentional acts . . . ." Adelphia and Miller responded with cross-claims against Mitchell on the same grounds.

[¶ 7] Mitchell later filed a properly supported motion for summary judgment in which he asserted that he owed no legal duty to Michelle Alexander to remove snow and ice from Pushaw Road. Adelphia and Miller jointly filed an opposition to Mitchell's motion for summary judgment with an opposing statement of material facts, arguing that Mitchell had owed a legal duty to plow Pushaw Road because he had voluntarily entered into a contract with the Town and had undertaken plowing of the Town's roads.

[¶ 8] Steven Alexander opposed Mitchell's motion for summary judgment, asking the court to conclude that Mitchell had had a duty to keep Pushaw Road free of snow and ice based on his voluntary contractual obligations to the Town. Alexander also filed an opposing statement of material facts, see M.R. Civ. P. 56(h)(2), which in essence asserted that Mitchell had failed to satisfy his obligations under the terms of the contract, resulting in the dangerous condition of Pushaw Road on the day of the accident.²

[¶ 9] Alexander, Adelphia, and Miller later stipulated to the dismissal of the claims and cross-claims against Adelphia and Miller, based on a proposed settlement. The court approved the settlement and dismissed the claims and cross-claims with prejudice.

[¶ 10] Based on the arguments of the parties, the court granted a summary judgment in favor of Mitchell against Alexander. The court recognized our decision in Denman v. Peoples Heritage Bank, Inc., 1998 ME 12, 704 A.2d 411, as an analogous situation, and therefore concluded that Mitchell was not liable to Alexander because Mitchell had not asserted ownership or control of the road and because his contract with the Town did not give Alexander rights as a third-party beneficiary. The court also determined that Mitchell had not assumed an independent duty of care by voluntarily undertaking an obligation because the Town was required by law to keep the roads clean of snow and ice. The court further concluded that Mitchell was not liable because the hazard in this case, the slippery road, was created by severe weather conditions, and not Mitchell's failure to plow. Thus, the court concluded that no legal duty existed, and it granted summary judgment in Mitchell's favor and later dismissed the cross-claims against him. Following entry of the summary judgment, Alexander filed a motion for findings of fact and conclusions of law, which the court appropriately denied.³

[¶ 11] Prior to the court's grant of summary judgment in favor of Mitchell, Alexander had moved for an enlargement of time to amend his opposition to Mitchell's motion for summary judgment and to include a statement of additional facts. In its later order denying Alexander's motion for findings of fact, the court explained that it had denied Alexander's motion to amend because the proffered facts would not have altered its decision to grant a summary judgment.⁴

II. DISCUSSION

A. The Question Presented on Appeal

[¶ 12] Before us, Alexander asserts a claim against Mitchell sounding in tort, but springing from the existence of Mitchell's contract with the Town. Alexander no longer presses a claim of breach of contract as a third-party beneficiary under the Town's contract. Nor does he assert an ordinary motor vehicle negligence claim such as would be asserted had Mitchell's plow and Michelle Alexander's vehicle collided in the snow. Rather, Alexander argues that when Mitchell entered into the contract with the Town, he assumed a duty of care, remediable in tort by all members of the public using the Glenburn roads, to eliminate or reduce the hazards of snow and ice from the roads that he was responsible for plowing. Thus, Alexander argues that he has presented sufficient facts to survive summary judgment with regard to the question of whether Mitchell's actions met or failed to meet the standard of care of a snow plow contractor. If a duty exists, we agree that the question of whether there was a breach of the standard of care would ordinarily be a question for a fact-finder, not susceptible on this record to summary judgment.

[¶ 13] The question presented then is whether Mitchell, upon entering into a contract to plow the Town's roads, undertook a duty to protect members of the road-using public from ice and snow. The motion court found that Mitchell did not assume that duty. We agree.⁵

B. Standard of Review

[¶ 14] We review the entry of a summary judgment de novo, viewing all facts in favor of the nonmoving party. See Penn v. FMC Corp., 2006 ME 87, ¶ 6, 901 A.2d 814, 815. To survive summary judgment in a negligence action, the plaintiff must establish a prima facie case showing duty, breach, causation, and damages. Maravell v. R.J. Grondin & Sons, 2007 ME 1, ¶ 7, 914 A.2d 709, 712. Although the ultimate determination of whether a party was negligent is ordinarily a question of fact, Wyman v. The Osteopathic Hosp. of Me., Inc., 493 A.2d 330, 335 (Me. 1985), the existence of a duty and the scope of that duty are questions of law, Decker v. N.E. Pub. Warehouse, Inc., 2000 ME 76, ¶ 7, 749 A.2d 762, 765.

[¶ 15] Here, there are no facts in dispute with regard to the existence of a duty, and we will determine whether, as a matter of law, Mitchell owed a duty to the traveling public in Glenburn. The existence of a duty, without which liability cannot be imposed on a defendant in a matter sounding in tort, has been the basis of myriad judicial opinions and treatises. We have no difficulty in pronouncing what duty is: it "`involves the question of whether the defendant is under any obligation for the benefit of the particular plaintiff.'" Searles v. Trs. of St. Joseph's Coll., 1997 ME 128, ¶ 5, 695 A.2d 1206, 1209 (quoting Trusiani v. Cumberland & York Distribs., Inc., 538 A.2d 258, 261 (Me.1988)) (quotation marks omitted). In a tort analysis, "`the duty is always the same—to conform to the legal standard of reasonable conduct in the light of the apparent risk.'" Id.

[¶ 16] The more difficult legal question, obviously, is not the "what" but the "when." In analyzing those claims that do not rest on well-established notions of duty, or that seek to expand duty into new areas, determining when a duty will be imposed requires the analysis of multiple factors. Although the foreseeability of an injury is a foundational consideration, it is never the sole determinant of duty. Cameron v. Pepin, 610 A.2d 279, 282 (Me.1992). We must always consider societal expectations regarding...