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Dubail v. D.O.T.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 126
Docket:	Cum-97-366
Submitted 
 on Briefs:	January 22, 1998
Decided:	May 28, 1998

Panel:  WATHEN, C.J., and ROBERTS, RUDMAN, DANA, LIPEZ,  and SAUFLEY, JJ.  

RICHARD DUBAIL, et al. v. DEPARTMENT OF TRANSPORTATION

LIPEZ, J.

	[¶1]  Richard and Georgia Dubail appeal from a summary judgment
entered in the Superior Court (Cumberland County, Brennan, J.) on the
Department of Transportation's motion in the Dubails' personal injury
action.  The Dubails contend that the court erred by determining as a matter
of law that the DOT's alleged negligence did not occur "during the
performance" of construction, street cleaning, or repair operations, within
the meaning of 14 M.R.S.A. § 8104-A(4)'s exception to governmental
immunity pursuant to the Maine Tort Claims Act, 14 M.R.S.A. §§ 8101-8118
(1980 & Supp. 1997).  We affirm the judgment.
I.
	[¶2]  In March 1996 Richard and Georgia Dubail filed a complaint
against the Department of Transportation alleging, inter alia, that in July
1994 Richard Dubail fell into a nearly five-foot deep hole while walking along
the inside of a guardrail on Mallett Road in Freeport; that he was severely
injured in the fall; and that his injuries were the result of the DOT's
negligence.  The complaint also alleged that Dubail's injuries "[arose] out of
the performance of construction and repair operations." After filing a timely
answer, the DOT moved for a summary judgment in which it asserted that it
was immune from suit pursuant to the Maine Tort Claims Act, 14 M.R.S.A.
§§ 8101-8118.  
	[¶3]  The DOT's motion for a summary judgment was supported by the
deposition testimony of Ralph Williams, a DOT foreman, and Roger Gobeil, a
DOT supervisor.{1}  Williams testified that he learned about the hole from his
crew in 1989; that the hole was located inside the guardrail near a catch
basin; that he had covered the hole with heavy exterior three-quarter inch
plywood that was measured to fit tightly around the hole to prevent
inadvertent removal; that he expected that the covering would last for ten to
fifteen years, which would be "sufficient until the next major construction
project came along"; and that he was unaware of any upcoming scheduled
construction projects.  Williams also testified that in the course of routine
catch basin cleaning procedures, his crew cleaned the Mallett Drive catch
basin annually from 1989 until 1994, when Dubail was injured.  Both
Williams and Gobeil testified that they were unaware of any construction,
street cleaning, or repair operations being performed around the catch
basin or hole in the weeks preceding and following Dubail's injury.  Shortly
after Dubail's fall, the DOT installed a metal covering on the hole.
	[¶4]  The court concluded that the undisputed facts were insufficient
as a matter of law to establish that the DOT's negligence occurred "during
the performance" of construction, street cleaning, or repair operations. 
This appeal followed.  
II.
	[¶5]  The Dubails argue that a jury should have been permitted to infer
from the undisputed facts that the DOT's alleged negligence occurred
"during the performance of construction, street cleaning or repair
operations," within the meaning of section 8104-A's exception to immunity,
and that the court erred in deciding this issue as a matter of law.  When
reviewing a grant of a summary judgment, we review the evidence in the
light most favorable to the nonprevailing party to determine whether the
record supports the conclusion that there is no genuine issue of material
fact and that the prevailing party is entitled to judgment as a matter of law. 
See Petillo v. City of Portland, 657 A.2d 325, 326 (Me. 1995).
	[¶6]  Pursuant to the Maine Tort Claims Act, 14 M.R.S.A. §§ 8101-
8118 (1980 & Supp. 1997), governmental entities{2} are immune from suit
on tort claims except in certain enumerated circumstances.  The general
immunity provision, set forth at section 8103, provides:
Immunity.  Except as otherwise expressly provided by statute, all
governmental entities shall be immune from suit on any and all
tort claims seeking recovery for damages.  When immunity is
removed by this chapter, any claim for damages shall be brought
in accordance with the terms of this chapter.
Id. § 8103.  Exceptions to this general immunity provision are set forth at
section 8104-A, which provides in pertinent part:
Exceptions to immunity.  [A] governmental entity is liable for
property damage and bodily injury or death in the following
instances.

. . . 

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 highway, town way,
sidewalk, parking area, causeway, bridge, airport
runway or taxiway, including appurtenances
necessary for the control of those ways . . . .  A
governmental entity is not liable for any defect, lack
of repair or lack of sufficient railing in any highway,
town way, sidewalk, parking area, causeway, bridge,
airport runway or taxiway or in any appurtenance
thereto.         
Id. § 8104-A (emphasis added).  Section 8104-A's exceptions to
governmental immunity are strictly construed.  See Lynch v. Town of
Kittery, 677 A.2d 524, 525 (Me. 1996).
	[¶7]  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.  Cf. Berard v. McKinnis, 699 A.2d 1148, 1153 (Me.
1997) (entitlement to discretionary immunity pursuant to MTCA is a
question of law). In this case, the record supports the court's legal
conclusion that the DOT's alleged negligence did not "occur during the
performance" of construction, street cleaning, or repair operations, within
the meaning of 14 M.R.S.A. § 8104-A(4).  Contrary to the Dubails'
contention, the undisputed fact that the DOT routinely performed annual
cleanings of the Mallett Drive area does not mean, as a matter of law, that
Dubail fell "during the performance of street cleaning."  Similarly, the
undisputed fact that the DOT installed a metal covering on the hole shortly
after Dubail fell does not mean, as a matter of law, that the DOT's plywood
covering was intended to be temporary and that repair operations were
"ongoing" over the course of five years. 
	[¶8]  The DOT's deponents testified that no construction, repairs, or
street cleaning were in progress at the time Dubail fell and in the weeks
preceding and following his fall.  The Dubails offered no evidence to the
contrary.  The DOT also offered evidence, undisputed by the Dubails, that it
expected the hole's plywood covering to last ten to fifteen years.  See
Thompson v. State Dep't of Transportation, 521 A.2d 293, 295 (Me. 1987)
("The determinative issue for the purposes of 14 M.R.S.A. § 8104(4)
[presently codified at section 8104-A(4)] is not whether DOT had
satisfactorily performed the repaving job, but whether DOT had done all it
was going to do, and all it was scheduled to do, in repaving that section of
the highway where the accident occurred."); see also 14 M.R.S.A. § 8104-
A(4) ("A governmental entity is not liable for any defect, lack of repair or
lack of sufficient railing . . . .").  Accordingly, we find no error in the court's
decision to grant a summary judgment in favor of the DOT.
	The entry is:
		Judgment affirmed.

Attorney for plaintiffs: Philip P. Mancini, Esq. Cloutier & Briggs, P.A. 247 Commercial Street Rockport, ME 04856 Attorney for defendant: James E. Smith, Esq. Legal Division Department of Transportation 16 State House Station Augusta, ME 04333-0016
FOOTNOTES******************************** {1} The DOT's motion for a summary judgment was also supported by the deposition testimony of the Dubails, both of whom testified that they observed nothing that indicated that the Mallett Drive area was under construction, being repaired, or being cleaned, and by the affidavit of Brian Harris, a DOT engineer, who stated that no construction was performed at the Mallett Drive area from 1987 until 1996. {2} "Governmental entities" is defined in section 8102(2) as "the State and political subdivisions as defined in subsection 3." 14 M.R.S.A. § 8102(2). The "State" is defined as "the State of Maine or any office, department, agency, authority, commission, board, institution, hospital or other instrumentality of the State . . . ." Id. § 8102(4).