Inkel v. Livingston

• Decision Date: 22 March 2005
• Citation: 869 A.2d 745,2005 ME 42
• Parties: Leonard R. INKEL v. Donald LIVINGSTON et al.
• Court: Maine Supreme Court

869 A.2d 745

2005 ME 42

Leonard R. INKEL v. Donald LIVINGSTON et al.

Supreme Judicial Court of Maine.

Submitted on Briefs: September 9, 2004.

Decided: March 22, 2005.

Daniel J. Mitchell, Esq., Bernstein, Shur, Sawyer & Nelson, P.A., Portland, for plaintiff.

Thomas S. Marjerison, Esq., Norman, Hanson & DeTroy, LLC, for Donald Livingston.

Gerard O. Fournier, Esq., Portland, for Solid Rock Builders.

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

LEVY, J.

[¶ 1] Leonard R. Inkel appeals from a summary judgment entered in the Superior Court (York County, Fritzsche, J.) in favor of Donald Livingston and Solid Rock Builders. Inkel contends that the court erred in finding that he had exceeded the scope of his invitation as a social guest when he suffered injuries upon entering a partially constructed house on Livingston's property. We disagree and affirm the judgment.

I. CASE HISTORY

[¶ 2] Donald Livingston hired Solid Rock Builders to build an ocean-front home on his property in Cape Neddick. During construction, Livingston lived in a cottage located forty-two feet away from the site of the new house. Livingston invited Inkel and his family to join him and other guests for Easter dinner at his cottage. Inkel, accompanied by his adult son, went outside for a cigarette after dinner. It was approaching dusk, and it was cloudy and raining. As he smoked, Inkel and his son walked toward the shore, in the direction of the new home. There were no lights on in the new home. At that time, some of the home's walls had been erected, but the construction remained incomplete. Curious about one of its rooms, the two men entered the dimly lit, partially enclosed structure. After walking ten to twenty feet, Inkel fell eight to ten feet through an uncovered chimney hole, suffering injuries. Prior to going outside, Inkel did not inform Livingston that he was going to look at the new house, and Livingston was not actually aware that he was doing so. Livingston was aware, however, that the other guests had gone in and out of the cottage during the dinner.

[¶ 3] Inkel brought a negligence action against Livingston and Solid Rock. Both defendants filed motions for summary judgment, which the trial court granted. The court found that Inkel's status was that of an invitee inside the cottage and on the surrounding grounds, but that the scope of Inkel's invitation did not extend, either expressly or impliedly, to the new house. This appeal followed.

II. DISCUSSION

[¶ 4] "We review the grant of a motion for summary judgment de novo ... consider[ing] the evidence and reasonable inferences that may be drawn from the evidence in the light most favorable to the party against whom the summary judgment has been granted in order to determine if the parties' statements of material facts and referenced record evidence reveal a genuine issue of material fact." Lever v. Acadia Hosp. Corp., 2004 ME 35, ¶ 2, 845 A.2d 1178, 1179 (citation omitted). "A material fact is one having the potential to affect the outcome of the suit." Burdzel v. Sobus, 2000 ME 84, ¶ 6, 750 A.2d 573, 575. "A genuine issue of material fact exists when there is sufficient evidence to require a fact-finder to choose between competing versions of the truth at trial." Lever, 2004 ME 35, ¶ 2, 845 A.2d at 1179.

[¶ 5] Maine has abolished the common law distinctions between licensees and invitees and, accordingly, under Maine's law of premises liability, a landowner owes a duty of reasonable care to all those lawfully on the land. Poulin v. Colby Coll., 402 A.2d 846, 851 (Me.1979). The determination of a person's legal status as a guest or a trespasser is a question of fact. Collomy v. Sch. Admin. Dist. No. 55, 1998 ME 79, ¶ 6, 710 A.2d 893, 895. A person retains his status as a guest "`only while he is on the part of the land to which his invitation extends — or in other words, the part of the land upon which the possessor gives him reason to believe that his presence is desired for the purpose for which he has come.'" Id. ¶ 7, 710 A.2d at 895 (quoting RESTATEMENT (SECOND) OF TORTS § 332 cmt. 1 (1965)). Therefore, when a guest enters a part of the possessor's premises" `to which there was no express or implied invitation to go, there can be no recovery for resulting injury, even though he is an invitee to other parts of the premises.'" Id. (quoting Lewis v. Mains, 150 Me. 75, 77-78, 104 A.2d 432, 434 (1954)).

[¶ 6] Inkel argues that a genuine issue of material fact remains concerning his legal status that should be left to a jury to consider. He contends that the circumstances surrounding his invitation to the cottage create an implied invitation to enter the construction site as well. He points out that he and Livingston were friends; that he had been to Livingston's cottage before for dinner; that the new, partially constructed house was only forty-two feet from the cottage and was the subject of dinner conversation; that the dinner guests did not require Livingston's permission to go in and out of the cottage; and that Livingston was aware that they were doing so. Inkel adds that there were no signs or barriers preventing people from entering the construction site; that the walls were unenclosed; that he had been to the site several times five or six months prior to the accident;¹ and that Livingston, when deposed, "would not say for certain that it would have been improper for Mr. Inkel to come to the construction site [at times when Livingston was away at work] to look at the progress of the construction." Accordingly, he argues that a jury could reasonably have concluded that he had Livingston's implied permission to enter the construction site.

[¶ 7] As the trial court found, the undisputed material facts establish that Livingston invited Inkel to the cottage and to the land immediately surrounding it for the limited purpose of having Easter dinner. Inkel's earlier visits to the construction site to salvage doors and windows bore no relation to his Easter dinner invitation. Inkel may have had implied permission to enter and exit the cottage during the dinner to smoke a cigarette on the surrounding grounds. Viewed in a light most favorable to Inkel, however, the record does not establish that he had implied permission to enter the partially constructed new house. The site was not "`the part of the land upon which [Livingston gave] him reason to believe that his presence [was] desired for the purpose for which he [had] come.'" See id. (quoting RESTATEMENT (SECOND) OF TORTS § 332 cmt. 1 (1965)).

[¶ 8] Inkel also contends that the scope of his invitation, as a social guest, is broader than that of other guests, such as public invitees or business visitors. Under the circumstances, he contends, "it would make little sense to suggest that [he] or the other guests at the party, most of whom were family members of Mr. Livingston's girlfriend, should have recognized that they were confined to the Cottage." Inkel recognizes that under Poulin a landowner's duty is the same whether an entrant is a licensee, or a public or business invitee. 402 A.2d at 851. He argues,...