Robin McDonald v. City of Portland

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
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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