MAINE	SUPREME	JUDICIAL	COURT	                                    Reporter	of	Decisions	
Decision:	 2017	ME	64	
Docket:	   Oxf-16-438	
Argued:	   March	3,	2017	
Decided:	  April	6,	2017	
	
Panel:	    ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                               AMY	L.	CANNEY		
                                       	
                                      v.	
                                       	
                          STRATHGLASS	HOLDINGS,	LLC	
	
	
MEAD,	J.	

      [¶1]		Amy	L.	Canney	appeals	from	a	summary	judgment	entered	by	the	

Superior	Court	(Oxford	County,	Clifford	J.)	in	favor	of	Strathglass	Holdings,	LLC,	

on	 Canney’s	 complaint	 asserting	 that	 Strathglass	 was	 liable	 for	 injuries	

sustained	by	her	minor	child,	Nicholai,	when	he	was	bitten	by	a	dog	kept	by	

Eric	Burns,	a	neighbor	who	performed	on-call	maintenance	work	on	properties	

owned	by	Strathglass.		Canney	asserts	that	the	court	erred	by	determining	as	a	

matter	of	law	that	Burns	was	not	acting	within	the	scope	of	his	employment	at	

the	 time	 of	 the	 dog	 bite,	 and	 by	 granting	 summary	 judgment	 on	 the	 issue	 of	

Strathglass’s	direct	liability.		We	affirm	the	judgment.	
2	

                                  I.		BACKGROUND	

      [¶2]	 	 The	 summary	 judgment	 record	 establishes	 the	 following	

undisputed	facts,	which	are	viewed	in	the	light	most	favorable	to	Canney,	the	

nonprevailing	 party.	 	 See	 Remmes	 v.	 Mark	 Travel	 Corp.,	 2015	 ME	 63,	 ¶	 3,	

116	A.3d	466.		Strathglass	is	a	Maine	limited	liability	company	that	owns	eight	

residential	 rental	 units	 in	 Rumford.	 	 At	 all	 times	 relevant	 to	 this	 action,	

Strathglass	 rented	 a	 unit	 in	 a	 duplex	 to	 Canney,	 who	 lived	 there	 with	 her	

thirteen-year-old	son	Nicholai,	and	rented	the	adjacent	unit	to	Eric	Burns.	

	     [¶3]		Peter	Evans	is	the	sole	member	of	Strathglass.		Evans,	who	lived	in	

Portland	and	was	not	always	able	to	directly	respond	to	emergencies	or	other	

problems	 arising	 at	 his	 rental	 properties,	 hired	 Burns	 to	 provide	 on-call	

maintenance	 and	 property	 management	 services.	 	 In	 that	 role,	 Burns	

performed	 tasks	 such	 as	 showing	 apartments	 to	 potential	 renters,	 reviewing	

rental	 applications	 and	 contacting	 references,	 delivering	 written	 leases	 to	

tenants,	collecting	rent	and	security	deposits,	performing	repairs,	purchasing	

repair	materials,	painting,	cutting	grass,	cleaning,	and	performing	inspections	

of	rental	units.		Burns	was	given	a	key	to	access	Strathglass’s	rental	units	for	

maintenance	purposes.	
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	     [¶4]	 	 Burns	 did	 not	 work	 from	 an	 external	 office;	 rather,	 Strathglass	

instructed	 tenants	 to	 contact	 Burns	 by	 knocking	 on	 the	 door	 of	 his	 home	 or	

calling	 him	 on	 the	 phone.	 	 Burns	 did	 not	 have	 set	 hours	 of	 employment,	 but	

Strathglass	hoped	that	he	would	address	tenants’	needs	as	they	arose.		In	return	

for	his	work,	Burns	was	paid	and	was	permitted	to	rent	his	unit	using	Section	8	

vouchers.	

	     [¶5]	 	 On	 September	 10,	 2015,	 Burns’s	 girlfriend’s	 daughter	 invited	

Nicholai	to	use	Burns’s	swimming	pool.		The	pool	was	behind	Burns’s	unit	in	a	

private	yard	enclosed	by	a	fence	and	gate.		Around	this	time,	Burns	was	in	his	

home	 fixing	 a	 piece	 of	 furniture.	 	 While	 in	 Burns’s	 yard,	 Nicholai	 saw	 Burns	

come	out	of	the	back	door	of	his	unit	with	his	two-year-old	male	pit	bull	that	he	

keeps	 at	 the	 unit.	 	 Burns’s	 pit	 bull	 approached	 Nicholai	 and	 glared	 at	 him,	

making	him	fearful	that	the	dog	might	attack.		The	dog	first	nipped	and	then	bit	

down	 on	 Nicholai’s	 leg.	 	 The	 dog	 was	 not	 restrained	 prior	 to	 biting	 Nicholai.		

Burns	attempted	to	separate	the	dog	from	Nicholai	after	the	attack.		Nicholai	

suffered	serious	injuries	as	a	result	of	the	bite.		Prior	to	this	event,	Burns’s	dog	

had	not	bitten	anyone	or	done	anything	to	suggest	to	Burns	that	it	was	likely	to	

bite	someone.		Strathglass’s	member,	Evans,	had	been	aware	that	Burns	kept	a	
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dog	at	his	unit,	but	did	not	believe,	and	had	no	objective	reason	to	believe,	that	

Burns’s	dog	was	dangerous.	

	     [¶6]	 	 On	 June	 22,	 2015,	 Canney	 filed	 a	 five-count	 complaint	 in	 the	

Superior	 Court	 on	 behalf	 of	 Nicholai	 against	 Burns	 and	 Strathglass.	 	 The	

complaint	 alleged	 that	 Burns	 possessed	 a	 dog	 with	 dangerous	 propensities;	

negligently	failed	to	warn	Nicholai	about	the	dog;	negligently	failed	to	properly	

and	 reasonably	 secure	 the	 dog;	 and	 “was	 at	 all	 pertinent	 times	 the	 agent,	

servant	or	employee	of	[Strathglass]	and	was	maintaining	the	property	for	the	

benefit	of	[Strathglass]	and	in	the	course	of	its	business.”	

	     [¶7]	 	 On	 January	 25,	 2016,	 Strathglass	 filed	 a	 motion	 for	 summary	

judgment,	a	supporting	statement	of	material	facts,	and	affidavits	of	Burns	and	

Evans.	 	 Canney	 opposed	 the	 motion.	 	 See	 M.R.	 Civ.	 P.	 56(h)(2).	 	 The	 court	

granted	 Strathglass’s	 motion	 for	 summary	 judgment	 on	 the	 grounds	 that	 no	

material	facts	were	in	dispute,	the	bite	occurred	in	an	area	controlled	by	Burns,	

Burns	was	not	acting	within	the	scope	of	his	employment	at	the	time	of	the	bite,	

and	there	was	no	evidence	of	the	dog’s	vicious	propensity.	

	     [¶8]	 	 Thereafter,	 Canney	 filed	 a	 motion	 for	 default	 judgment	 against	

Burns	after	he	failed	to	appear	at	an	alternative	dispute	resolution	session.		The	
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court	granted	Canney’s	motion	and,	after	a	hearing	on	damages	at	which	Burns	

did	not	appear,	awarded	Canney	$75,000	plus	interest	and	costs.	

	       [¶9]	 	 Canney	 timely	 appealed	 from	 the	 court’s	 entry	 of	 summary	

judgment	in	favor	of	Strathglass.1		See	14	M.R.S.	§	1851	(2016);	M.R.	App.	P.	2.	

                                           II.		DISCUSSION	

	       [¶10]		“Summary	judgment	is	appropriate	when	the	parties’	statements	

of	material	facts	and	the	portions	of	the	record	referred	to	therein	disclose	no	

genuine	issues	of	material	fact	and	reveal	that	one	party	is	entitled	to	judgment	

as	a	matter	of	law.”		Spencer	v.	V.I.P.,	Inc.,	2006	ME	120,	¶	5,	910	A.2d	366;	see	

M.R.	 Civ.	 P.	 56(c).	 	 “We	 review	 the	 grant	 of	 a	 motion	 for	 summary	 judgment	

de	novo	and	consider	both	the	evidence	and	any	reasonable	inferences	that	the	

evidence	produces	in	the	light	most	favorable	to	the	party	against	whom	the	

summary	judgment	has	been	granted	in	order	to	determine	if	there	is	a	genuine	

issue	 of	 material	 fact.”	 	 Levis	 v.	 Konitzky,	 2016	 ME	 167,	 ¶	 20,	 151	 A.3d	 20	

(quotation	marks	omitted).		“We	will	affirm	the	grant	of	a	summary	judgment	

against	 a	 plaintiff	 who	 presents	 insufficient	 evidence	 to	 support	 an	 essential	

element	 in	 her	 cause	 of	 action,	 such	 that	 the	 defendant	 would	 be	 entitled	 to	



    1
    	 	 Canney	 first	 appealed	 from	 the	 entry	 of	 summary	 judgment	 prior	 to	 obtaining	 the	 default	
judgment	against	Burns,	and	we	dismissed	that	appeal	as	interlocutory	due	to	her	unresolved	claims	
against	Burns.	
6	

judgment	 as	 a	 matter	 of	 law	 on	 that	 state	 of	 the	 evidence	 at	 a	 trial.”	 	 Bell	 v.	

Dawson,	2013	ME	108,	¶	16,	82	A.3d	827.	

A.	    Scope	of	Employment	

	      [¶11]	 	 Canney	 asserts	 that	 the	 court	 erred	 by	 resolving	 the	 issue	 of	

whether	Burns	acted	within	the	scope	of	his	employment	because	that	issue	is	

a	question	of	fact	properly	reserved	for	the	fact-finder.		We	have	long	held	that	

whether	 an	 employee	 is	 acting	 within	 the	 scope	 of	 employment	 may	 be	 a	

question	 of	 fact	 or	 law	 depending	 on	 the	 evidence	 presented	 in	 a	 particular	

case.		See	R.	I.	Mitchell,	Inc.	v.	Belgrade	Shoe	Co.,	152	Me.	100,	102,	125	A.2d	80	

(1956);	Stevens	v.	Frost,	140	Me.	1,	3,	32	A.2d	164	(1943).		Here,	all	material	

facts	 have	 been	 deemed	 admitted	 by	 both	 parties;	 neither	 suggests	 the	

existence	of	any	other	facts—disputed	or	otherwise—that	need	to	be	explored	

on	the	scope	of	employment	issue.		Thus,	the	court	did	not	err	in	determining,	

as	 a	 question	 of	 law,	 whether	 Burns	 was	 acting	 within	 the	 scope	 of	 his	

employment.	

	      [¶12]	 	 Next,	 we	 consider	 whether	 the	 court	 erred	 in	 concluding	 that	

Burns	was	not	acting	within	the	scope	of	his	employment	at	the	time	of	the	dog	

bite.		The	Restatement	(Third)	of	Agency	provides,	in	relevant	part:		

       An	 employee	 acts	 within	 the	 scope	 of	 employment	 when	
       performing	work	assigned	by	the	employer	or	engaging	in	a	course	
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      of	conduct	subject	to	the	employer’s	control.		An	employee’s	act	is	
      not	 within	 the	 scope	 of	 employment	 when	 it	 occurs	 within	 an	
      independent	 course	 of	 conduct	 not	 intended	 by	 the	 employee	 to	
      serve	any	purpose	of	the	employer.	
      	
Restatement	(Third)	of	Agency	§	7.07(2)	(Am.	Law	Inst.	2006);	see	also	Picher	

v.	Roman	Catholic	Bishop	of	Portland,	2009	ME	67,	¶	32,	974	A.2d	286.	

	       [¶13]		Here,	Burns	was	hired	by	Strathglass	to	provide	on-call	assistance	

for	tenants’	emergencies	and	maintenance	requests.		Part	of	his	responsibility	

necessarily	involved	being	reachable	by	tenants	at	his	home	or	via	his	phone,	

and	 Strathglass	 hoped	 that	 Burns	 would	 respond	 to	 tenants’	 needs	 as	 they	

arose.		However,	the	fact	that	Burns	was	on	call	at	his	home	when	Nicholai	was	

injured	does	not,	by	itself,	establish	that	Burns’s	acts	or	omissions	were	within	

the	 scope	 of	 his	 employment	 by	 Strathglass.2	 	 See	 Clickner	 v.	 City	 of	 Lowell,	

663	N.E.2d	852,	855	(Mass.	1996)	(“Most	jurisdictions	have	ruled	that	the	mere	

fact	 of	 being	 on	 call	 does	 not	 place	 employees	 within	 the	 scope	 of	 their	

employment.”).	

	       [¶14]		Neither	party	disputes	that	Nicholai	entered	Burns’s	private	yard	

for	 purposes	 completely	 unrelated	 to	 Burns’s	 employment	 with	 Strathglass.		



    2
   		We	have	held	that	injuries	that	occurred	while	an	employee	was	“on	call”	were	not	necessarily	
within	 the	 course	 of	 employment	 for	 worker’s	 compensation	 purposes.	 	 See	 Westberry	 v.	 Town	 of	
Cape	Elizabeth,	492	A.2d	888,	890	(Me.	1985)	(“The	fact	that	[an	employee]	was	on	call	twenty-four	
hours	a	day	is	not,	without	more,	enough	to	bring	him	within	the	course	of	employment.”).	
8	

There	is	no	record	evidence	suggesting	that,	at	the	time	of	the	dog	bite,	Burns	

was	performing	any	work	assigned	by	Strathglass	or	that	Burns	was	engaged	

in	any	course	of	conduct	over	which	Strathglass	had	control.		To	the	contrary,	

the	record	indicates	that	Burns	was	in	his	home	fixing	a	piece	of	furniture	prior	

to	the	dog	bite	and	that	Nicholai	entered	the	backyard	of	the	property	for	purely	

recreational	purposes.	

	      [¶15]		Canney	urges	us	to	find	this	case	similar	to	Rodriguez	v.	Town	of	

Moose	River,	which	involved	a	town	clerk	who,	pursuant	to	an	agreement	with	

the	 Town,	 conducted	 official	 town	 business	 from	 her	 home.	 	 2007	 ME	 68,	

¶¶	3,	4,	922	A.2d	484.		When	visiting	the	clerk’s	home	to	register	two	motor	

vehicles,	Rodriguez	fell	down	the	building’s	front	stairs,	which	had	no	handrail.		

Id.	 ¶¶	 7-9.	 	 We	 concluded	 that	 because	 the	 clerk	 “was	 required	 to	 open	 her	

home	to	the	public	as	part	of	her	duties	.	.	.	,	her	failure	to	replace	the	handrail	

on	her	stairs	was	an	act	within	the	scope	of	her	employment”	with	the	Town.		

Id.	¶	26.	

	      [¶16]		Here,	unlike	the	plaintiff	in	Rodriguez	who	was	visiting	the	clerk’s	

home	to	conduct	Town	business,	Nicholai	entered	Burns’s	property	for	purely	

recreational	purposes	unrelated	to	any	business	with	Strathglass.		Moreover,	

while	Rodriguez	entered	the	clerk’s	home	to	conduct	business	using	its	front	
                                                                                          9	

stairs,	there	is	nothing	in	the	record	suggesting	that	Burns’s	gated	and	fenced	

backyard	 was	 an	 area	 where	 Burns’s	 duties	 to	 Strathglass	 were	 undertaken;	

Canney	admitted	in	her	pleadings	that	Burns’s	yard	was	private	and	not	shared	

with	other	tenants	or	the	public.	

	      [¶17]		In	sum,	it	is	clear	based	on	the	uncontroverted	facts	that	neither	

Burns’s	acts	or	omissions	nor	Nicholai’s	presence	on	his	premises	were	in	any	

way	 related	 to	 Burns’s	 employment	 or	 agency	 with	 Strathglass.	 	 The	 court’s	

finding	 that	 Strathglass	 was	 entitled	 to	 a	 grant	 of	 summary	 judgment	 on	

Canney’s	respondeat	superior	claims	was	proper.	

B.	    Direct	Liability	for	Negligence	

	      [¶18]		Canney	asserts	that	even	if	Burns	was	acting	outside	the	scope	of	

his	 employment,	 Strathglass	 is	 directly	 liable	 on	 a	 negligence	 theory	 for	

damages	it	proximately	caused	as	the	owner	of	business	premises.	

	      [¶19]		To	survive	a	summary	judgment	on	a	direct	liability	theory,	Canney	

must	assert	a	prima	facie	case	of	negligence	against	Strathglass.		See	Stanton	v.	

Univ.	 of	 Me.	 Sys.,	 2001	 ME	 96,	 ¶	 6,	 773	 A.2d	 1045.	 	 “A	 prima	 facie	 case	 of	

negligence	requires	a	plaintiff	to	establish	the	following	elements:	a	duty	owed,	

a	breach	of	that	duty,	and	an	injury	to	the	plaintiff	that	is	proximately	caused	

by	a	breach	of	that	duty.”		Id.	¶	7.	
10	

	        [¶20]		Here,	Canney	asserts	in	her	complaint	that	Strathglass	is	“licensed	

to	do	business	in	the	State	of	Maine,”	and	that	Burns	was	acting	as	Strathglass’s	

“agent,	 servant	 or	 employee	 .	 .	 .	 and	 was	 maintaining	 the	 property	 for	 the	

benefit	 of	 [Strathglass]	 and	 in	 the	 course	 of	 its	 business.”	 	 These	 allegations	

suggest	only	that	Strathglass	is	subject	to	vicarious	liability	for	Burns’s	acts	or	

omissions.		Canney’s	complaint	fails	to	allege	a	theory	of	direct	liability	against	

Strathglass,	and	she	offers	no	evidence	in	the	summary	judgment	record	that	

would	support	a	direct	claim	of	negligence	against	Strathglass.		Accordingly,	the	

court	did	not	err	when	it	granted	summary	judgment	on	all	counts	of	Canney’s	

complaint.	

	        The	entry	is:	

	     	       	    Judgment	affirmed.	
	
	     	       	    	      	       	
	
William	 C.	 Herbert,	 Esq.	 (orally),	 Hardy,	 Wolf	 &	 Downing,	 P.A.,	 Lewiston,	 for	
appellant	Amy	L.	Canney	
	
James	B.	Haddow,	Esq.	(orally),	Petruccelli,	Martin	&	Haddow,	LLP,	Portland,	for	
appellee	Strathglass	Holdings,	LLC	
	
	
Oxford	County	Superior	Court	docket	number	CV-2015-36	
FOR	CLERK	REFERENCE	ONLY	
