Paschal v. City of Bangor

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 50
Docket:	Pen-99-302
Submitted
on briefs:	October 28, 1999
Decided:	March 23, 2000

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

CHARLES C. PASCHAL

v.

CITY OF BANGOR

CLIFFORD, J.

	[¶1] The City of Bangor appeals from the denial of its motion for a
summary judgment entered in the Superior Court (Penobscot County,
Hjelm, J.) in a suit brought by Charles Paschal.{1}  The court held that the
existence of genuine issues of material fact precluded it from finding that
the Maine Tort Claims Act granted the City immunity from Paschal's
negligence claim under the Maine Tort Claims Act.{2}  We agree with the
City's contention that it is immune under the Maine Tort Claims Act and
that none of the exceptions to immunity are applicable so as to preclude the
entry of a summary judgment.  Accordingly, we vacate the judgment.
	[¶2] Paschal was injured on June 18, 1996 when the motorcycle he
was riding hit a patch of sand and gravel at the intersection of Hammond
and Ohio Streets in the City of Bangor.  Several days before, on June 14,
"three inches of rain fell on the City of Bangor during a half-hour period,"
washing debris into accumulations and requiring the use of City street
sweepers to remove the debris.  One witness testified that the road where
Paschal fell was "thick with sand."
	[¶3]  The City began cleaning the debris at the intersection of
Hammond and Ohio Streets on June 14, the day of the storm.  The City
suspended cleaning operations on the weekend and resumed cleaning one
quarter mile from the intersection on June 18, eventually cleaning the spot
where Paschal was injured on June 19.
	[¶4]  Paschal filed a complaint against the City alleging that:

[t]he slip and fall of [Paschal's motorcycle] . . . was proximately
caused by negligence on the part of Defendant City of Bangor in
that it failed to see that which was there to be seen, failed to
maintain clean and clear streets, and failed generally to adhere
to appropriate standards of due care.

	[¶5]  In moving for a summary judgment the City argued that the
complaint alleged a highway defect, and because the exclusive remedy for
damages incurred by highway defects was 23 M.R.S.A. § 3655 (1992),
Paschal was required to prove that the City had actual notice of the defect in
the roadway twenty-four hours prior to the accident.{3}  Because Paschal had
failed to offer any such proof, the City requested that judgment be entered
in its favor.
	[¶6]  Paschal asserted that 23 M.R.S.A. § 3655 (1992) does not apply
because the complaint does not allege a defect in the roadway, but rather
alleges negligence by the City and so is governed by the Maine Tort Claims
Act.  See 14 M.R.S.A. § 8104-A(4) (Supp. 1999).  He contended that the
City's negligence occurred during and arose from the City's street cleaning
and repair operations, activities that fall outside the protective cloak of
immunity provided by the Maine Tort Claims Act.
	[¶7]  The Superior Court (Marsano, J.) granted the City relief "on all
claims against the City based on 23 M.R.S.A. § 3655,"{4} and denied without
prejudice the City's summary judgment motion on those claims made
pursuant to 14 M.R.S.A. § 8104-A(4), allowing the City to refile the motion.
	[¶8]  The Superior Court (Hjelm, J.) denied the City's second motion
for a summary judgment because it found that there were genuine issues of
material fact as to whether the City had completed its street sweeping
activity at the time the accident occurred, and as to how the debris
accumulated in the roadway.  This appeal by the City followed.
	[¶9]  "Whether a defendant is entitled to governmental immunity is a
question of law that may be resolved by a summary judgment in the absence
of factual contradiction."  Dubail v. Department of Transp., 1998 ME 126,
¶ 7, 711 A.2d 1301, 1303.  We examine the evidence presented in the
statements of material fact required to be filed pursuant to M.R. Civ. P. 7(d)
in the light most favorable to the nonprevailing party to determine if there is
a genuine issue of material fact.  See Smith v. Cannell, 1999 ME 19, ¶ 6,
723 A.2d 876, 879; Webb v. Haas, 1999 ME 74, ¶ 18, 728 A.2d 1261, 1267. 
A genuine issue of material fact is present when "'there is sufficient
evidence supporting the claimed factual dispute to require a choice between
the parties' differing versions of the truth at trial.'"  See Prescott v. State
Tax Assessor, 1998 ME 250, ¶ 5, 721 A.2d 169, 171-72 (quoting Garside v.
Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (internal quotations
omitted).  Pursuant to M.R. Civ. P. 56(c) a defendant is entitled to a summary
judgment if there is no genuine issue as to any material fact.  We review de
novo the trial court's conclusion that there is a genuine issue of material fact
in this case.  See Casco N. Bank v. Estate of Grosse, 657 A.2d 778, 780
(Me. 1995).
	[¶10]  A city is "immune from suit on any and all tort claims seeking
recovery of damages" except as specifically provided by statute.  See
14 M.R.S.A. § 8103(1) (1980).  The City loses its immunity from suit for
"negligent acts or omissions arising out of and occurring during . . . street
cleaning or repair operations." See 14 M.R.S.A. § 8104-A(4) (Supp. 1999). 
Pursuant to section 8104-A(4), however, "[a] governmental entity is not
liable for any defect [or] lack of repair" of a roadway.{5}  See id.  Section
8104-A(4), like all statutory exceptions to government immunity, "must be
narrowly construed."  See Goodine v. State, 468 A.2d 1002, 1004
(Me. 1983). 
	[¶11]  The Superior Court declined to enter a summary judgment
because it determined that there were genuine issues of fact as to whether
the City had completed its street cleaning activity at the time of the
accident and as to how the debris accumulated.  Although the court may be
correct that there is some dispute as to those facts, in the context of this
case, those disputes are not material within the meaning of section
8104-A(4) and M.R. Civ. P. 56.
	[¶12]  Paschal has not shown any negligent act or omission that arose
out of and occurred during the City's cleanup operation.  Paschal's complaint
alleges only that the City failed to remove the debris.  Section 8104-A(4),
however, does not create a duty on the part of the City to clean or repair its
streets.{6}  Rather, it places a duty on the City to conduct its street cleaning
and repair operations with due care.  Paschal does not claim that the City
placed the sand and gravel on the roadway, nor would the evidence support
a finding that the City's action caused the sand and gravel to be in the road,
i.e., that the debris was present at the intersection because of some
negligent act on the part of the City.  The City could be liable under section
8104-A only if, during the course of street cleaning or repair, it negligently
caused the debris to accumulate in the street.  There is no evidence of such
negligent conduct on the part of the City in this case.
	[¶13]  Paschal attempts to place himself within section 8104-A(4), but
he has failed to produce sufficient evidence to support a finding of
negligence on the part of the City in any street cleaning or repair operation
proximately causing his injury.  Accordingly, the City is entitled to a
judgment.

	The entry is:
Judgment vacated.  Remanded to the Superior
Court for the entry of a judgment for the City of
Bangor.

 Attorney for plaintiff:

Paul Sumberg, Esq.
Wright & Mills, P.A.
P O Box 9
Skowhegan, ME 04976-0009

Attorney for defendant:

Jon A. Haddow, Esq.
Farrell, Rosenblatt & Russell
P O Box 738
Bangor, ME 04401

FOOTNOTES******************************** {1} . Although the denial of a summary judgment is not a final judgment, we entertain the City's appeal because it is asserting governmental immunity from suit. See Webb v. Haas, 1999 ME 74, ¶ 5, 728 A.2d 1261, 1264; Struck v. Hackett, 668 A.2d 411, 416 (Me. 1995). {2} . The Maine Tort Claims Act provides : 1. Immunity. Except as otherwise expressly provided by statute, all governmental entities shall be immune from suit on any and all tort claims seeking recovery of damages. When immunity is removed by this chapter, any claim for damages shall be brought in accordance with the terms of this chapter. 14 M.R.S.A. § 8103(1) (1980). The Act also provides exceptions to immunity: § 8104-A. Exceptions to immunity . . . . 4. Road construction, street cleaning or repair. A governmental entity is liable for its negligent acts or omissions arising out of and occurring during the performance of construction, street cleaning or repair operations on any . . . town way . . . . A governmental entity is not liable for any defect [or] lack of repair . . . in any . . . town way. 14 M.R.S.A. § 8104-A(4) (Supp. 1999). {3} . Title 23, section 3655 provides, in part: Whoever receives any bodily injury . . . through any defect or want of repair . . . in any highway [or] town way . . . may recover for the same in a civil action . . . if [the municipality] had 24 hours' actual notice of the defect or want of repair. 23 M.R.S.A. § 3655 (1992). {4} . Paschal does not challenge that ruling. {5} . Recovery for defects and lack of repairs is governed by 23 M.R.S.A. § 3655 (1992). {6} . While it might be true that the debris constituted a defect in the roadway, see Clockedile v. Department of Transp., 437 A.2d 187, 190 (Me. 1981) (holding that a ditch in the road was a defect in the roadway), the exclusive means of recovery for roadway defects lies in 23 M.R.S.A. § 3655 (1992), see id. Because Paschal failed to comply with the notice provision of 23 M.R.S.A. § 3655 (1992), however, he cannot recover for injury caused by "any defect or want of repair" in the roadway.