Brown V. New Hampshire Northcoast Corp.
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SUPERIOR COURT CIVJI.ACTION DOCKETI\'0. CV-13-198 STATE OF MAII"F: YORK, ss. RACHEL BROWN <ond DESTINY PHANEUf, Plaintiffs ORDERS ON PENDING MOTIONS :'\lEW HAMPSHffiE KORTHCOAST CORPORATION, Defendant The plaintiffs, who were fourteen and thirteen years old respectively on the morning of May 28, 2008, skipped school and in order to avmd detection by their parents, decided to lie down on the railroad tracks near the Three Mile Pond trestle in Lebanon. A train owned and operated by the defendant run over them. surv1ved the incident, but both suffered permanent injurie~. They They filed a negligence complaint on August 28, 2013 using language based on the duty of care owed to trespassers. The defendant answered denying liability. On November 19, 2013 the court issued a stundard scheduling order setting a july 19,2014 discovery deadline. On April IS, 2014 the defendant filed a motion for summary judgment, which argued that the plamliffs were trespassers, that there is a lesser duty of care toward trespassers, and that there was no evidence of the willfu I, wanton or reckless misconduct that 1S required to impose liability. The defendant also submitted a letter to the Clerk asking that a discovery conference be held to discuss its request that further discovery be stayed unhlthe motion for summary judgment was decided. After a lengthy conference w1th cPunsell1ssued an order on ~lay 22,2014, whicil granted the defendant's request to stay discovery and set a deadline of June 20, 2014 for the plamtiffs to respond to the summary judgment motion including iiiiY request under Rule 56({), M.R Civ.P. to delay il response pendmg further discovery. The plaintiffs have filed a motion to reconsider the order grantmg a stay of discovery and a motion pursuant to Rule 56(f). Those motions haw been briefed and argued. My VJCW as to the legal principles remains unchanged. The plaintiffs were trespassers and their claims must be treated under the well-established Mame law related to trespassers. Fosler v. LtlPlante, 244 A.2d 803(\,Je. 1%8) did not involve a claim by a trespasser. My view as to the wisdom of further discovery remains unchanged. \1uch discovery has been provided and it is unlikely, but possible, that sufficient new facts will be found that will change the likely outcome of the case. opportunity to conduct further discovery has ch=ged. :'vfy view as to the The rn•o key railroad employees have not been deposed i!Ild the plaintiffs' expert or experts have apparently not viewed the scene. I have on occasion, in the judgment of the Law Court, dismissed or granted summary judgment prematurely. It seem~ wiser, though there is both a financial and psychological cost in doing so, to permit further discovery. The remaining discovery should focus on depositions i!Ild the entry onto and inspection of li!Ild, rather than lebs productive disputes concerning the adequacy of responses to request for admissions. 2 rhe entries ar~: Plaintiffs' motion to reconsider order granting defendanfs mol!on to silly d1scovery is granted. The order of 'vlay 22, 2014 granting a stay is vac~ted. Plaintiffs' rule 56(f) motion is granted. The time to respond to defendant's motion for summary judgment is extend<:>d through April 30, 201.'i. A ruling on the ddendanl's motion for summary judgment is deferred. The Dated: di~covery deadline i~ extended through March 31, 2015. DecemberS, 2014 {/4..?£~ Paul A. Fri!..>".sche Justice, Superior Court 3 cv 13-198 ATTORN'FY FOR PLAL''{IlFFS· GARY GOLDBERG TERRY GAR\1EY & ASSOCIATES LLC 482 CONGRESS STREET SUITE 402 PORTLAND "ME 04101 ATTORNEY FORpEFENDANT. M A.RTICA DOUGLAS DOL-GLAS DE~IIAM BUCCJNA & ERNS'J PO BOX 7108 PORTLANDfl..fE 04112-7108
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