Parking Lots, Sovereign Immunity And A Persuasive Dissent

There are a number of good reasons to admire Maine Associate Justice Joseph Jabar but my favorite is part of his Wikipedia biography 

After graduating from Colby, Jabar signed as a free agent with the Seattle Pilots, and played in 1969 with Seattle’s Single A affiliate Newark Co-Pilots of the New York–Penn League. He posted a 10–4 record with a 3.99 ERA in 106 innings at Newark under manager Earl Torgeson. After just one professional season, Jabar returned to his studies, graduating in 1971 from the University of Maine School of Law. While in law school, Jabar coached basketball at Andover Institute, and also coached the freshman team at the University of Southern Maine. In 2017, he was inducted into the Maine Sports Legends Hall of Fame.

The good justice has been on my radar for a number of recent (and to me persuasive) dissents.

A fall in a parking lot of a University of Maine campus had been dismissed by summary judgment on immunity grounds.

The issue on appeal was the legal status of the lot in question, which provided access to two buildings and in which the appellant/visitor had been instructed to park her vehicle.

On or about January 6, 2019, Klein drove her vehicle to the University of Maine’s Orono campus for the purpose of conducting business at Fogler Library. Klein was instructed by the University to use a parking lot contiguous to Holmes Hall. Fogler Library is located across Moosehead Road from Holmes Hall. The parking lot is used primarily by faculty and staff working at Holmes Hall and by faculty, staff, and visitors using Fogler Library.

She fell. She sued. She lost.

The court majority

Even if the parking lot were annexed to one of the public buildings, however, it would not satisfy the remaining factor necessary to the definition of a fixture. The parking lot is not “adapted to the realty” because it is not unique or integral to Holmes Hall or Fogler Library in any way.

Justice Jabar in dissent and would reject the majority’s “fixture-based” approach to the issue

Here, we are asked for the first time to determine on the merits whether a parking lot—a piece of realty rather than an object or personal property—is an appurtenance to a public building. A fixture-based approach cannot answer the question.

A better way

A function-based approach begins with the dictionary definition of appurtenance that we cited in Sanford: a thing belongs to—and, thus, is appurtenant to—a public building if that thing is “integral” or “significantly connected” to the building’s function or purpose.3 2004 ME 73, ¶¶ 5, 9, 850 A.2d 325. We recognized in Sanford that appurtenances must be something other than personal property, but we mistakenly limited the definition to fixtures without considering that a parking lot, or similar realty, may be an appurtenance to a building.

Under a “function based” approach

Adopting a function-based approach here, I would vacate the Superior Court’s summary judgment and, based on the record before us, hold that the parking lot is an appurtenance. The parking lot where Klein slipped on untreated ice is definitely not a fixture because a parking lot does not possess the hallmarks of personal property. Namely, it is not freely moveable, so it could never make the transition from being personal property to being affixed to a building.

(Mike Frisch)