MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2022 ME	17

Docket: Kno-21-56

Argued: November	3,	2021

Decided: March	15,	2022

Panel: STANFILL,	C.J.,	and MEAD,	GORMAN,	JABAR,	HUMPHREY,	HORTON,	and	CONNORS,	JJ.

Majority: STANFILL,	C.J.,	and	MEAD,	GORMAN,	HUMPHREY,	HORTON,	and	CONNORS,	JJ.

Dissent: JABAR,	J.

KAREN	S.	KLEIN

v.

UNIVERSITY	OF	MAINE	SYSTEM et	al.

GORMAN,	J.

[¶1]	 Karen S.	Klein	appeals	 from	a	 summary	judgment	entered	in the	

Superior	Court	(Knox	County,	Mallonee, J.)	in	favor	of	the	University	of	Maine	

System	 and	 the	 University	 of	 Maine	 (collectively,	 the	 University)	 on	 her	

complaint	 asserting	 negligent	 maintenance	 and	 operation	 of	 a	 parking	 lot	

located	on	 the	University	of	Maine’s	Orono	campus.		Klein	contends	 that	 the	

court	erred	in	determining that	the	parking	lot	was	not	an	appurtenance	to	a	

public	building	as	that	term	is	used	in	14	M.R.S.	§	8104-A(2)	(2021)	of	the	Maine	

Tort	 Claims	 Act	 (MTCA)	 and,	 therefore,	 that	 no	 exception	 to	 the	 immunity	

conferred	 on	 governmental	 entities	 by	 the	 MTCA	 applied.	 	 We	 affirm the	

judgment.
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I.		BACKGROUND

[¶2]		The	following	facts	are	undisputed.		See	McDonald	v.	City	of	Portland,	

2020	ME	119,	¶	2,	239	A.3d	662.		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.

[¶3]	 	After parking her	 vehicle,	 Klein	walked	 through the	 parking	 lot,	

crossed	Moosehead	Road, and	entered	Fogler	Library.		A	few	hours	later,	Klein	

exited	 Fogler	 Library,	 walked	 across	 Moosehead	 Road,	 and	 walked	 into	the	

parking	lot,	where	she	slipped	and	fell	on	a	patch	of	untreated	ice	and	sustained	

injuries.		No	road	construction,	street	cleaning,	or	repair	was	being	performed	

at	 the	parking	lot,	and	the	University	has no	insurance	that	would	cover the	

incident.		See 14	M.R.S.	§	8116	(2021).

[¶4]		After her	fall,	Klein	filed	a	complaint	in	the	Superior	Court	alleging	

that	 the	 University	 was	 negligent	 in	 its	 maintenance	 and	 operation	 of	 the	

parking	 lot.	 	 The	 University	 filed	 a	 motion	 for	 summary	 judgment,	 claiming	
3

immunity	from	Klein’s	suit pursuant	to	the	MTCA.		Klein	opposed	the	motion,	

arguing	 that	 the	parking	lot	fell	within	 the	 “public	building	exception”	 to	 the	

MTCA’s	otherwise	comprehensive	grant	of	immunity.	 See	14 M.R.S.	§§	8103(1),	

8104-A(2) (2021).		On	February	5,	2021,	the	court	entered	an	order	granting	

the	University’s	summary	judgment	motion	on	the	grounds	that the	parking	lot	

was	 not	 an	 appurtenance	 as	 that	 term	 is	 used	 in section	 8104-A(2)	 and	

therefore that	no	exception	 to	governmental	immunity	applied.		Klein	 timely	

appealed.		See 14	M.R.S.	§	1851 (2021);	M.R.	App.	P.	2B(c)(1).

II.		DISCUSSION

[¶5]		Klein argues	that	the	court	erred	by	granting	the	University’s	motion	

for	summary	judgment	based	on	immunity.		She	contends	that	the	undisputed	

facts	show	that	the	parking	lot	where	she	fell	was	an	appurtenance	to	Holmes	

Hall	 and	 Fogler	 Library	 and	 therefore	 falls	 within	 the	 “public	 building	

exception” to	immunity	provided	by	section	8104-A(2).

[¶6]	 	We	 review a	 grant	 of	 a	 motion	 for	 summary	 judgment	 de	 novo,	

viewing	the	evidence	in	the	light	most	favorable	to	the	nonmoving	party.		See

Picher	v.	Roman	Cath. Bishop	of	Portland,	2009	ME	67,	¶	7,	974	A.2d	286.		A	grant	

of	summary	judgment	will	be	affirmed	if	there are	no	genuine	issues	of	material	

fact	and	the	undisputed	facts	show	that	the	prevailing	party	was	entitled	to	a	
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judgment	as	a	matter	of	law.		Id.		“A	genuine	issue	of	material	fact	exists	when	

there	 is	 sufficient	 evidence	 to	 require	 a	 fact-finder	 to	 choose	 between	

competing	 versions	 of	 the	 truth	 at	 trial.”	 	 Id. (quotation	 marks	 omitted).		

“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.”		McDonald,	

2020	ME	119,	¶	11,	239	A.3d	662.

[¶7]		Our	main	objective	in	construing	a	statute	is	to	give	effect	to	the	will	

of	the	Legislature.		See Est.	of	Stone	v.	Hanson,	621	A.2d	852,	853	(Me.	1993).		In	

determining	the	Legislature’s intent,	we	look	first	to	the	plain	language	of	the	

statute.		Adoption	of	Patricia	S.,	2009	ME	76,	¶	11,	976	A.2d	966.		In	considering	

the	plain	language,	however,	“we	must	consider	the	entire	statutory	scheme	in	

order	to	achieve	a	harmonious	result.		Finally,	[o]nly	if	the	meaning	of	a	statute	

is	 not	 clear	 will	 we	 look	 beyond	 the	 words	 of	 the	 statute	 to	 examine	 other	

potential	 indicia	 of	 the	 Legislature’s	 intent,	 such	 as	 the	 legislative	 history.”		

A.S. v.	 Lincolnhealth,	 2021	 ME	 6,	 ¶	 15,	 246	 A.3d	 157 (quotation	 marks and	

citation	omitted).

[¶8]		Governmental	immunity	is	the	sole	subject	of	the	MTCA,	14 M.R.S.	

§§ 8101-8118	 (2021).	 	The MTCA	 expressly	 provides	 that,	 as	 a	general	 rule,	

governmental	entities	are	immune	from	suit	on	any	and	all	tort	claims	seeking	
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recovery	 of damages.	 	 Reid	 v.	 Town	 of	 Mount Vernon,	 2007	 ME	 125,	 ¶	 20,	

932 A.2d	539;	14	M.R.S.	§	8103(1). The	MTCA does,	however, include in	section	

8104-A	“a	cautious waiver	of	sovereign	immunity by	the	Legislature in	certain	

carefully	 circumscribed	 circumstances.”	 	 Searle	 v.	 Town	 of	 Bucksport,	

2010 ME 89,	 ¶ 27, 3	 A.3d	 390.	 	We	 construe	 this	 waiver	 strictly	in	 order	 to

adhere	to	the	Legislature’s	directive	that	immunity	for	a governmental entity

remains the general	 rule.	 See Est.	of	Fortier	v.	City	 of	 Lewiston,	2010	ME	50,	

¶	 8,	 997	 A.2d	 84 (“In	 construing	 section	 8104-A,	 we recognize	 that	 the	

MTCA	 employs	 an	 exception-to-immunity	 approach rather	 than	 an	

exception-to-liability	approach.”	(quotation	marks	omitted)).

[¶9]	 	 The public	 building	 exception to	 immunity provides	 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.”		14	M.R.S.	§8104-A(2).		The	MTCA	does	

not	 define	 the	 term	 “appurtenance,”	 and	 we	 have	 adopted	 a	 restrictive	

definition	 of	 the	 term,	in	 accordance	 with	 “the exacting	 approach	 we	 follow	

when	construing	the	exceptions	to	immunity	under	the	MTCA.”		Sanford	v.	Town	

of	 Shapleigh,	 2004	 ME	 73, ¶	 10,	 850	 A.2d	 325.	 	 “[F]or	 purposes	 of	 section	

8104-A(2),	an	appurtenance	is	an	object	or	thing	that	belongs	or	is	attached	to	
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a	public	building.”		Id. ¶	11.		“In	determining	whether	something	‘belongs’	to	a	

building	.	.	.	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.’”	 McDonald,	2020	ME	119,	¶	15,	239	A.3d	662	(quoting	Searle,	

2010	ME	89,	¶¶	13-14,	3	A.3d	390). Thus,	to	be an	appurtenance under	section	

8104-A(2),	the	object	in	question	must	be “(1)	physically	annexed	to	the	realty,	

(2)	adapted	to	the	realty,	and	(3)	intended	to	be	irremovable	from	the	realty.”		

McDonald,	2020	ME	119,	¶	15,	239	A.3d	662.

[¶10]		Klein	 relies	on	our	recent	decision	in	McDonald1 to	support	her	

argument	 that	 the	 parking	 lot	 is	 an	 appurtenance	 to Holmes	 Hall or Fogler	

Library.

2 Id.	¶¶	15-16.	 In	McDonald,	we held	that	a	paved	brick	plaza	leading	

1	 	Klein	 contends	 that	McDonald	v.	 City	 of	Portland, 2020 ME 119,	 239	A.3d	 662, supports	 her	

position	that	the	parking	lot	is	an	appurtenance	on	the	grounds	that	we	adopted	a	new	“multi-factor	

balancing	 test	 for	 whether	 a	 paved	 outdoor	 area	 contiguous	 to	 a	 public	 building	 constitutes	 an	

appurtenance.”	 	 Contrary	 to	Klein’s	 contentions,	we	 neither	 created	 nor	adopted	a	 new	 test.	 	We	

applied	 existing	 law	 by	 employing	 the	 “fixture	 test”	 as	 originally	 outlined	 in Searle	 v.	 Town	 of	

Bucksport,	2010	ME	89,	¶¶	13-22,	3	A.3d	390.		See	McDonald,	2020	ME	119,	¶¶	15-16,	239	A.3d 662.

2		Klein	also	resorts	 to	dictionary	definitions	of	“appurtenance”	and	out-of-state	case	law	in	an	

attempt	 to	 persuade	 us	 that	 it	 is	 an	 object’s	 “irremovable,	 essential,	 subordinate-to-principal	

relationship	 that	 dictates	 whether	 the	 area	 outside	 a	 public	 building	 is	 an	 appurtenance	 to	 that	

building” and,	in	offering	this	approach,	implicitly	argues	that	we	overrule	the	“fixture	test”	we	laid	

out	in	Searle,	2010	ME	89,	¶¶	13-22,	3	A.3d	390.		The	approach	offered	by	Klein,	however,	is	the	very	

“function-based	 approach”	 to	 determining	 whether	 an	 object	 is	 an	 appurtenance	 that	 we	 have	

rejected	on	numerous	occasions.		See	McDonald,	2020	ME	119,	¶	15,	239	A.3d	662;	Sanford	v.	Town	

of	 Shapleigh,	 2004	 ME	 73,	 ¶¶	 8-12,	 850	 A.2d	 325.	 	We	 have	 already	 determined	 that	 the MTCA	

“employs	 appurtenance	 as	 a	 technical	 term”	 and	 have	 defined	 “appurtenance”	 and	 adopted	 the	

“fixture	 test”	 to	 analyze	 whether	 an	 object	 constitutes	 an	 “appurtenance”	 under	 that	 definition.		

Sanford, 2004	ME	73,	¶	10,	850	A.2d	325;	Searle,	2010	ME	89,	¶¶	15-22,	3	A.3d	390	(enumerating	the	

factors	of	the	“fixture	test”	for	analyzing	purported	appurtenances).		In	formulating	the	“fixture	test,”	

we	 expressly	 considered	 dictionary	 definitions	 and	 out-of-state	 case	 law,	 along	 with	 the	 express	
7

to	the	entrance	of	the	Portland	Police	Department	headquarters	building	was

an	appurtenance	to	a	public	building	under	section 8104-A(2).		Id. ¶¶	16,	22.

Applying the	 three-part	 definition	 of	 a	 fixture	 to	 the	 facts	 of	 that	 case,	 we

concluded, first, that	 the	 plaza	 was “annexed	 to	 the	 Department	 building	

because	it	serve[d] as	the	roof	to	the	portion	of	the	building	underneath	it	and	

[could	not] be	freely	moved	or	relocated.”		Id. ¶	16.	 Second,	we	concluded	that

the	 plaza	 was “adapted	 to	 the	 unique	 needs	 of the	 Department	 building”	

because	 “the	building’s	lobby	would	be	wholly	inaccessible	without	[it].”		Id.	

Third,	we	 concluded	that	the	 “annexation	 and	 essential	 nature	 of	 the	 plaza”	

displayed the	City’s	intent	to	make	it	“an	irremovable	part	of	the	Department	

building.”		Id. (quotation	marks	omitted).	 The	fact	that	the	plaza	was	physically	

annexed	to—formed	the	roof	of	a	portion of—the	Portland	Police	Department	

headquarters	building	was	critical	to	the	outcome	in McDonald.		See	id. ¶ 16.

[¶11]		The	uncontroverted	facts	demonstrate	that	the	parking	lot	here	is	

materially	 distinguishable	 from	 the	 plaza	in	McDonald because although	the	

parking	 lot is	 contiguous	 to	 Holmes	 Hall—in	 that	 the	 parking	 lot shares a	

language	 and	 the	 purposes	 behind	 the	 MTCA.	 See	 Sanford, 2004	 ME	 73,	 ¶¶	 9-11,	 850	 A.2d	 325	

(considering	 Black’s	 Law	 Dictionary	 and	 Am.	 Jur.	 2d	 Vendor	 and	 Purchaser	 § 99	 definitions,	 as	

informed	by	the	narrow	construction	of	exceptions	under	the	MTCA	and	the	purpose	of	the	MTCA,	in	

defining	“appurtenance”); Searle,	2010	ME	89,	¶¶	15-22,	3	A.3d	390.		We	are	unpersuaded	by	Klein’s	

arguments	that	we	should	adopt	a	new	definition	of	“appurtenance” for	purposes	of	the	MTCA,	and	

as	such,	the	“fixture	test”	as	adopted	in	Searle	controls	here.
8

common	border with	Holmes	Hall—the	parking	lot is	not an	object	or	thing	that	

is “physically	 annexed	 to”	Holmes	 Hall	 or	 Fogler	 Library.	 	Id. ¶ 15;	see	 also	

Annex,	 Black’s	 Law	 Dictionary	 (11th	 ed.	 2019)	 (defining	 “annex”	 as	

“[s]omething	 that	is	attached	 to	 something	else,	 such	as	 .	 . .	an	addition	 to	a	

building”).	 The	 parking	 lot is not attached	 to	 either	Holmes	 Hall	 or	 Fogler	

Library	 nor	 is	 it	 incorporated	 into	 these public	 buildings	 in	 any	 way.		

Cf. Rodriguez	v.	Town	of	Moose	River,	2007	ME	68,	¶¶ 8,	28	n.3,	38,	922	A.2d	484

(noting	 that	 external	 stairs	 leading	 into	 a	 public	 building	 fall	 within	 the	

definition	of	an	appurtenance);	Donovan	v.	City	of	Portland,	2004	ME	70,	¶ 15,	

850	A.2d	319 (referring	to “stairs	and	other	building	appurtenances”).

[¶12]	 Because	 the	parking	lot	is	not	annexed	 to	either	Holmes	Hall	or	

Fogler	Library, it	cannot	be	“an	irremovable	part	of	the	.	.	.	building.”		McDonald,	

2020	ME	119,	¶	16,	239	A.3d	662	(quotation	marks	omitted). Thus,	there	is	no	

evidence	to	support	two	of	the	three	necessary	factors.

[¶13]		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.	 	 See	 Searle,	

2010 ME	 89,	 ¶¶	 19-20,	 3	 A.3d	 390; McDonald,	 2020	 ME	 119,	 ¶¶ 15-16,	
9

239 A.3d 662.		Many	buildings border parking	areas	that	facilitate	the	arrival	

and	 departure	 of	 visitors	 to	 the	 building, and	there	is	 no	 factual	 basis	 upon	

which	 to	determine	 that	this	parking	lot	serves any	special	purpose—it	does	

not	 serve	 as	 an	 entryway	 to	 any	building, and	it	 has	 no	 designated	purpose	

other	than	parking.

[¶14]		The	parking	lot	outside	of	Holmes	Hall	and	Fogler	Library	is	not	an	

appurtenance as	that	term	is	used	in	section	8104-A(2) because it	meets	none	

of	the	requirements	necessary	to	qualify	as	a	fixture.		See	Searle,	2010	ME	89,	

¶¶ 17-22,	3	A.3d	390.		To	deem	a	parking	area	appurtenant	to	a	public	building

merely	because	someone parks	her vehicle in	it	to	gain	access	to	another	public	

building	 would	 constitute	 an	 impermissible	 extension	 of	 the	 statutory	

exceptions	to	governmental	immunity.		See	14	M.R.S.	§	8104-A(2),	(4).		Because	

the	 parking	 lot	 is	 not	 an	 appurtenance,	 Klein’s	 injury	 is	 one	 for	 which	 the	

University	is	afforded	governmental	immunity	 from	 suit	 by	 section	 8103(1).		

Accordingly,	 the	 Superior	 Court	 correctly	 determined	 that	 the	 University	 is	

entitled	to	entry	of	a	summary	judgment.

The entry	is:

Judgment	affirmed.
10

JABAR,	J.,	dissenting.

[¶15]	 I respectfully	 dissent	 because	 I	 believe	 a	 “function-based	

approach”	is	more	sensible	and	practical	than	a	“fixture-based	approach”	and	

aligns	more	closely	with	the	intent	of	the	Legislature	when	it	enacted	the	Maine	

Tort	Claims	Act	(MTCA).		Although	we	have	never	been	asked	to	decide	whether	

a	parking	lot	meets	the	definition	of	“appurtenance,”	dictum	in	a	previous	case	

indicated	that	parking	lots	are	not	appurtenances.		See	Kitchen	v.	City	of	Calais,	

666	A.2d	77,	78	(Me.	1995).		To	determine	if	something	is	an	appurtenance	as	

that	 term	 is	 used	 in	 14	 M.R.S.	 §	 8104-A(2) (2021), we	 have	 adopted	 a	

fixture-based	approach,	rejecting a	function-based	approach.	 Sanford	v.	Town	

of	 Shapleigh,	 2004	 ME	 73,	 ¶	 11,	 850	 A.2d	 325;	 Searle	 v.	 Town	 of	 Bucksport,	

2010 ME	89,	¶¶ 14-15,	3	A.3d	390.		I	believe	conducting	a	 fixture	analysis	is	

proper	 when	 considering	 whether	 personal	 property	 constitutes	 an	

appurtenance,	 but,	 as	 currently	 employed	 by	 the	 Court,	 a	 fixture-based	

approach	unnecessarily	limits	the	definition	of	appurtenance	when	considering	

other	things	that	may	be	an	appurtenance	to	a	building.		This	narrow	definition	

is	inconsistent	with	a	plain	 reading	of	 the	statute	and	 the	legislative	history.		

Although	all	fixtures	may	be	appurtenances,	all	appurtenances	are	not	fixtures.		

Searle,	2010	ME	89,	¶ 40,	3	A.3d	390 (Jabar,	J.,	dissenting).
11

I.		DISCUSSION

A. Maine	Tort	Claims	Act

[¶16]		The legislative	history	of	the	MTCA	demonstrates	that	the	concept	

of	 governmental	 liability,	 and	 consequently	 a	 remedy	 for	 wrongly	 injured	

citizens,	is	equally	important	to	that	of	governmental	immunity.

[¶17]		In	1976,	 this	Court	abolished	common-law	sovereign	immunity.		

See	generally	Davies	v.	City	of	Bath,	364	A.2d	1269	(Me.	1976);	Bale	v.	Ryder,	

286 A.2d	 344,	 345	 (Me.	 1972).	 	 Forced	 into	 action,	 the	 Legislature	 hastily	

passed	 the	MTCA	in	early	1977.		See P.L.	1977,	ch.	2.		 In	 the	same	legislative	

session, the	Legislature	revised	the	MTCA	two	more	times.		See	P.L.	1977,	ch. 78,	

§§	 113-116;	 P.L.	 1977,	 ch.	 578,	 §§ 1-5A.	 	 The	 latter	 enactment	 added	

appurtenances	to	the	public	building	exception	to	immunity;	under	the	initial	

stop-gap	 measure,	 the	 public	 building	 exception	 applied	 only	 to	 buildings.		

Compare P.L.	1977,	ch.	2,	§	2,	with P.L.	1977,	ch.	578,	§	2.		Legislators	were	not	

concerned	 with	 appurtenances	 and	 parking	 lots	 at	 that	 time;	 instead,	 they	

debated	whether	state	employees	should	automatically	receive	immunity	when	

the	 state	 is	 also	 immune	 from	 suit.	 	 See,	 e.g., 2	 Legis.	 Rec.	 1644-45	 (1977)

(remarks	of	Sens. Mangan,	Collins,	Curtis,	and	Merrill).
12

[¶18]		That	debate	reveals	the	true	legislative	purpose	of	the	MTCA.		In	

the	words	of	Senator	Collins:

There	 were	 some	 who	 felt	 that	 government	 should	 have	 no	

immunity	whatsoever. . . .		There	were	[others]	who	would	not	have	

opened	the	door	to	any	sort	of	liability	on	the	part	of	government,	

and	 we	 said,	 well,	 that	 is	 not	 really	 the	 best	 way	 to	 go	 either,	

because	 there	 are	 a	 number	 of	 civil	 wrongs	 that	 ought	 to	 be	

redressed,	and	can	we	find	some	middle	ground.

Well,	we	 did	 find	 some	middle	ground	and	 the	middle	ground	is	

based	on	the	idea	that	we	should	open	to	liability	those	areas	where	

insurance	can	be	obtained	at	a	reasonable	cost,	and	we	were	very	

attentive	to	the	fact	that	this	involves	not	only	the	State	of	Maine,	

but	 all	 of	 our	 cities	 and	 towns	 and	 districts	 and	 so	 on	 that	 are	

governmental	entities.

2	Legis.	Rec.	1827	(1977).

[¶19]		The Legislature	intended	 the	MTCA	 to	serve	as	both	sword	and	

shield.		It	empowers	citizens	to	obtain	compensation	when	they	are	injured	by	

certain	enumerated	negligent	acts.		The	acts	are	those	for	which	municipalities,	

in	 particular,	 can	 obtain	 reasonably	 priced	 liability	 insurance.	 	 In	 fact,	 the	

Legislature	specifically	studied	the	cost	of	liability	insurance	for	municipalities	

and	amended	the	MTCA	to	reflect	those	findings.		See 2	Legis.	Rec.	1593	(1977)

(remarks	of	Rep.	Spencer).

[¶20]	 	 At	 the	 same	 time,	 the	 MTCA	 shields	 government	 entities	 from	

excessive	tort	liability.		Both	aspects	are	equally	important	to	our	interpretation	
13

of	 the	 law,	 just	 as	 both	 aspects	 were	 equally	 important	 to	 the	 Legislature’s	

forged	compromise.		As	I	explain	in	more	detail	below,	the	Court’s	insistence	on	

narrowly	 construing	 exceptions	 to	 governmental	 immunity	 is	 wrong	 partly	

because	it	disrupts	this	balance,	which	we	have	recognized	before.		See Searle,	

2010	ME	89,	¶	42,	3	A.3d	390	(Jabar,	J.,	dissenting)	(“The	Legislature	enacted	

the	MTCA	 to	afford	citizens	a	remedy	 to	which	 they	otherwise	would	not	be	

entitled	 due	 to	 sovereign	 immunity.”);	 Rodriguez	 v.	 Town	 of	 Moose	 River,	

2007 ME	 68,	 ¶	 34	 n.4,	 922	 A.2d	 484 (“The	 Legislature	 created	 the	 narrow	

exceptions	 to	 governmental	 immunity	 under	 the	 assumption	 that	

governmental	 entities	 would	 acquire	 insurance	 to	 cover	 liability	 for	 claims	

outside	immunity	protection . . . .”).

B. Fixture-based	Approach

[¶21]	 	 The Court	 today	 makes	 clear	 that	 under	 the	 MTCA	 an	

appurtenance	 must	 be	 a	 fixture.	 	 Referencing	 our	 previous	 decision	 in	

McDonald	v.	City	of	Portland,	2020	ME	119,	¶¶ 15-16,	239	A.3d	662, the Court	

says,	 “We	 applied	 existing	 law	 by	 employing	 the	 ‘fixture	 test’	 as	 originally	

outlined	in	Searle	v.	Town	 of	Bucksport,	2010	ME	89,	¶¶	13-22,	3	A.3d	390.”		

Court’s	Opinion	¶	10	n.1.		By	adopting	a	 fixture-based	approach,	we	have	so	

narrowed	the	definition	of	appurtenance	that	it	means	only	fixtures.		I	disagree	
14

with	 the	Court’s	limiting	interpretation	of	 the	 term	appurtenance.		The	plain	

meaning	of	the	term	demonstrates	that	all	appurtenances	are	not	necessarily	

fixtures.		The	plain	meaning	demands	additional	analysis.

[¶22]		The	Court’s	current	fixture-based	approach does	not	account	for	

this	need.		For	the	purpose	of	the	MTCA,	we	have	defined	appurtenance	as	“an	

object	 or	 thing	 that	 belongs	 or	 is	 attached	 to	 a	 public	 building.”	 	 Sanford,	

2004 ME	73,	¶	11,	850	A.2d	325.		Although	this	definition	suggests	that	things	

other	 than	 fixtures	 could	 be	 appurtenances,	 it	 presents	 a	 false	 choice:	 “the	

proper	analysis”	simply	asks if	a	thing	that	may	be	an	appurtenance	is	either	a	

fixture	or	personal	property.		See	Searle,	2010	ME	89,	¶¶	11,	15,	3	A.3d	390.		

After	we	defined	appurtenance	in	Sanford,	2004	ME	73,	¶	11,	850	A.2d	325,	a

majority	 of	 this	 Court	 later	 described	 that	 case as	 “apply[ing]	 the	

well-established	definition	of	a	fixture	to	determine	whether	an	object	was	an	

appurtenance,”	 Searle,	 2010	 ME	 89,	 ¶	 14,	 3	 A.3d	 390.	 	 This	 description	 is	

misleading.		Sanford created	a	common	law	definition	of	appurtenance that	was	

informed	by	(1) dictionary	definitions of	appurtenance and	appurtenant;	(2)	a	

legal	treatise’s	description	of	appurtenances;	and	(3)	a	dictionary	definition	of	

fixture.		2004	ME	73,	¶¶ 9-11,	850	A.2d	325.		We then	applied	that	common	law	

definition,	 which	 more	 closely	 resembles	 the	 dictionary	 definition	 of	
15

appurtenance	 than	 it	 does	 fixture,	 to	 determine	 if	 a	 trash	 bin	 was	 an	

appurtenance.	 	Id. ¶¶	 11-12.	 	Our application	 of	 that	 definition	 did	 not	even	

mention	the	word	“fixture.”		Id.

[¶23]		I	agree that it	is	necessary	 to	distinguish	 fixtures	 from	personal	

property,	as	was	done	in	Sanford,	because a	governmental	entity	is	not	liable	

“for	 its	 negligent	 acts	 or	 omissions	 in	 the	 construction,	 operation	 or	

maintenance”	of	its	personal	property.		See 14	M.R.S.	§	8104-A(2).		The	Court’s	

definition	 for	 fixture,	 as	 articulated	 in	 Searle,	 is well	 suited	 to	 determine	 if

personal	property	has	become a	fixture.		2010	ME	89,	¶	16,	3	A.3d	390.		But	our	

prior	cases	involving	the	public	building	exception	to	immunity	have	primarily	

dealt	with	things	that	are	commonly	considered	personal	property.		See,	e.g., id.,	

¶ 15	(bleachers); Sanford, 2004	ME	73,	¶	12,	850	A.2d	325 (freestanding	trash	

bin);	 Donovan	 v.	 City	 of	 Portland,	 2004	 ME	 70,	 ¶	 5,	 850	 A.2d	 319 (exterior	

lighting);	 Peterson	 v.	 City	 of	 Bangor,	 2003	 ME	 102,	 ¶¶	 7-8,	 831	 A.2d	 416

(monkey	 bars);	 Petillo	 v.	 City	 of	 Portland,	 657	 A.2d	 325,	 327	 (Me.	 1995)

(irrigation	 system)	 (dicta).	 	 But	 see	 McDonald,	 2020	 ME	 119,	 ¶¶ 4-5,	

239 A.3d 662	(plaza);	Kitchen,	666	A.2d at 78 (“The	City’s	statement	of	material	

facts	places	the	raised,	blacktopped	curbing	in	the	parking area.		A	parking	area	

constitutes	neither	a	public	building	nor	an	appurtenance	to	a	public	building.”)	
16

(predating	Sanford);	Stretton	v.	City	of	Lewiston,	588	A.2d	739,	741	(Me.	1991)

(holding	that	an	athletic	field	is	neither	a	public	building	nor	an	appurtenance	

because	it	is	similar	to	“a	camouflaged	underground	assault	shelter,”	which	“is	

not	a	public	building	within	the	meaning	of	the [MTCA]” (citing	Lovejoy	v.	State,	

544	A.2d	750,	751	(Me.	1988)))	(predating	Sanford).

[¶24]		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.

C. Function-based	Approach

[¶25]	 	To	 correct	 this	limited	and	 narrow	 view	 of	what	 constitutes	an	

appurtenance,	we	should	adopt	a more	sensible	and	practical function-based	

approach.	 	 I	 recognize	 that	 we	 have	 previously	 rejected	 this	 approach.	 	 In	

Sanford,	we	“decline[d]	to	adopt	a	function-based	approach	and	rel[ied]	instead	

on	a	more	restrictive	understanding	of	the	term,”	despite	“acknowledg[ing]	that	

the	function-based	definition	employed	by	the	Superior	Court	.	.	.	[was]	sensible	

and	 offer[ed]	 a	 practical	 standard.”	 	 2004	 ME	 73,	 ¶	 8, 850	 A.2d	 325.	 	 An	

examination	 of	 the	 plain	 language	 of	 the	 MTCA	 requires	 us	 to	 revisit	 our	

rejection	of	the	function-based	approach.
17

1. Plain	Language

[¶26]		As	the	Court	notes,	our	main	objective	in	construing	a	statute	is	to	

give	effect	to	the	will	of the	Legislature.		Desgrosseilliers	v.	Auburn	Sheet	Metal,	

2021	ME	63,	¶	8,	264	A.3d	1237.		We	achieve	this	objective	by	first	examining	

the	plain	language	of	the	statute.		Wuori	v.	Otis,	2020	ME	27,	¶	6,	226	A.3d	771.		

When	 we	 give	 statutory	 language	 its	 plain	 and	 ordinary	 meaning, we “have	

often	 relied	 on	 dictionaries	 to	 determine	 such	 meanings.”	 	 Rockland	 Plaza	

Realty	Corp.	v.	City	of	Rockland,	2001	ME	81,	¶	12,	772	A.2d	256;	see	Mortg. Elec.	

Registration	 Sys.,	 Inc. v.	 Saunders,	 2010	 ME	 79,	 ¶	 11,	 2	 A.3d	 289.	 	 We	 also	

interpret	statutory	language	to	avoid	absurd,	illogical,	or	inconsistent	results.		

Jackson	 Lumber	 &	 Millwork	 Co.	 v.	 Rockwell	 Homes,	 LLC,	 2022	 ME	 4,	 ¶	 10,	

266 A.3d	288.

[¶27]	 	 The public	 building	 exception	 to	 immunity	 provides	 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.”		14	M.R.S.	§	8104-A(2).		The	Legislature	

did	not	define	the	term	appurtenance	in	the	MTCA.

[¶28]	 	 I	 note	 here	 that in	 our	 jurisprudence we	 have	 inconsistently	

applied	a	rule	of	statutory	construction	when interpreting this	undefined	term.		
18

In Searle, we	 said	 that “[a]s	 a	 general	 rule,	 words	 and	 phrases	 that	 are	 not	

expressly	defined	in	a	statute	must	be	given	 their	plain	and	natural	meaning	

and	 should	 be	 construed	 according	 to	 their	 natural	 import	 in	 common	 and	

approved	usage.”	 2010	ME	89,	¶	8,	3	A.3d	390	(quotation	marks omitted). In	

Sanford,	however,	we	said	that	“because	the	MTCA	employs	appurtenance	as	a	

technical	term,	we	are	guided	by	the	rule	that	technical	words	and	phrases	and	

such	as	have	a	peculiar	meaning	convey	such	technical	or	peculiar	meaning.”

2004	ME	73,	¶	10,	850	A.2d	325	(alteration	and	quotation	marks	omitted).		The	

Sanford Court	did	not	explain	why	it	thought	the	MTCA	employed	appurtenance	

as	a	technical	term,	nor	does	either	party	here,	so	“the	plain	meaning	of	[this	

undefined]	 term	 controls.”	 	 State	 v.	 York,	 1997	 ME	 209,	 ¶	 9,	 704	 A.2d	 324;	

Ethyl Corp.	 v.	 Adams,	 375	 A.2d	 1065,	 1075	 (Me.	 1977) (“Since	 we	 find	 no	

indication	 that	 the	 Legislature	intended	 that	 the	[statutory	 term] be	 given	 a	

peculiar	 or	 technical	 meaning,	 we	 construe	 it	 according	 to	 the	 common	

meaning	of	the	language.” (quotation	marks	omitted)).

[¶29]		To	begin	with,	the	Legislature	used	the	term	appurtenances,	not	

fixtures.		See Court’s	Opinion	¶ 9.		We	can	assume	that	the	Legislature	knew	the	

difference	 between	 an	 appurtenance	 and	 a	 fixture.	 	 “Fixture”	 is	 defined	 as	

“[p]ersonal	property	that	is	attached	to	land	or	a	building	and	that	is	regarded	
19

as	an	irremovable	part	of	the	real	property .	.	.	.”		Fixture,	Black’s	Law	Dictionary	

(11th	ed.	2019);	cf.	Personal	Property,	Black’s	Law	Dictionary	(11th	ed.	2019)	

(“Any	 movable	 or	 intangible	 thing	 that	 is	 subject	 to	 ownership	 and	 not	

classified	as	real	property.”).		In	contrast,	we have noted	that	appurtenance	is	

defined	as	“‘something	that	belongs	or	is	attached	to	something	else.’”		Sanford,	

2004	ME	73,	¶	9,	850	A.2d	325	(quoting	Appurtenance,	Black’s	Law	Dictionary	

(7th	ed.	1999)).		By	the	plain	meaning	of	the	word,	then,	something	can	be	an	

appurtenance	in	one	of	 two	ways:	either	it	belongs	 to	something	else	or	it	is	

attached	to	something	else.		A	plain	reading	of	the	term	does	not	support	the	

conclusion	that	an	appurtenance	can	be	only	a	fixture.

[¶30]		Furthermore,	I	note	that	the	Court	relies	on	the	rule	of	statutory	

construction	that	says	that	we	consider	the	entire	scheme	when	construing	a	

statute’s	plain	language.		Court’s	Opinion	¶ 7.		Accordingly,	we	have	narrowly	

construed	 exceptions	 to	 immunity	 and	 restrictively	 defined	 the	 term	

appurtenance	 to	give	effect	 to	 the	structure	of	 the	MTCA,	which	“employs	an	

exception-to-immunity	 approach	 rather	 than	 an	 exception-to-liability	

approach.”	 Est.	 of	 Fortier	 v.	 City	 of	 Lewiston,	 2010	ME	 50,	 ¶	 8,	 997	 A.2d	 84

(quotation	 marks	 omitted).	 	 As	 discussed	 above,	 this	 construction	 is	 not	

consistent	with	the	balance	between	immunity	and	liability	that	the	Legislature	
20

diligently	crafted.		A	function-based	approach	is	much	more	attuned	to	striking	

this	balance	than	a	fixture-based	approach.

2. Operation	of	a	Function-based	Approach

[¶31]		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.		Id. ¶	11.	 We	explained:

Appurtenances	are	things	belonging	to	another	thing	as	principal	

and	which	pass	as	incidents	to	the	particular	thing . . . .		The	term	is	

commonly	 employed	 in	 connection	 with	 land	 conveyances	 to	

describe	objects	or	things	that	pass	to	a	grantee	as	an	incident	of	

the	transfer.		As	used	in	conveyances,	the	term	passes	nothing	but	

the	land	and	 such	 things	as	 belong	 thereto	and	are	a	 part	 of	 the	

realty.

3		Alternatively,	a	thing	may	be	an	appurtenance	if	it	is	attached	to	a	public	building.		See Sanford v.	

Town	Shapleigh,	2004	ME	73,	¶	9,	850	A.2d	325.		To	determine	if	an	object	is	attached	to	a	public	

building	under	a	function-based	approach,	follow	the	fixture	analysis	outlined	in	Searle.		2010	ME	89,	

¶¶	16-21,	3	A.3d	390.
21

Id. ¶	9	(quotation	marks	and	citation	omitted)	(citing	77	Am.	Jur.	2d	Vendor	and	

Purchaser §	99 (1977)). In	other	words,	an	appurtenance	belongs	to	a	principal	

thing	if	it	is	incidental	to	the principal	thing.		In	this	context,	“incident”	means	

“[d]ependent	 upon,	 subordinate	 to,	 arising	 out	 of,	 or	 otherwise	 connected	

with.”	Incident,	Black’s	 Law	Dictionary	 (11th	 ed.	2019).	 	An	appurtenance is	

integral	or	significantly	connected	to	a	principal	thing	if	it	serves	that	principal	

thing’s	essential	purpose.

[¶32]	 	Our	 recent	 decision	in	McDonald highlights	 the	 practicality	 of	a	

function-based	 approach,	 which	 we	 essentially	 employed	 to	 determine	

whether	a	plaza	was	a	fixture.		See 2020	ME	119,	¶	16,	239	A.3d	662.		We	used	

the	 definition	 of	 fixture	 to	 determine	 whether	 a	 plaza	 “‘belong[ed]’	 to”	 the

Portland	Police	Department	and,	therefore,	was	an	appurtenance	to	that	public	

building.		Id. ¶¶	1,	15.		We	held	the	plaza	was	an	appurtenance	because	it	was	

(1)	annexed	to	the	Department,	serving	as	the	roof	to	a	portion	of	the	building;	

(2) “necessary	 for	 the	 proper	 function	 of	 the	 building”	 because	 the	 “lobby	

would	be	wholly	inaccessible	without	the	plaza”;	and	(3)	“‘an	irremovable	part’”	

of	the	building	as	shown	by	“the	annexation	and	essential	nature	of	the	plaza	to	

the	 functioning	 of	 the	 Department	 building.”	 	 Id. ¶	 16	 (quoting	 Searle,	

2010 ME 89,	¶	22,	3	A.3d	390).
22

[¶33]		This	result	was	correct	under	our	precedent	only	because	we	used	

a	 fixture-based	approach,	but	the	 fact	remains	that	a	plaza	is	obviously	not	a	

fixture.		As	noted	above,	a fixture	is	“[p]ersonal	property	that	is	attached	to	land	

or	a	building	and	that	is	regarded	as	an	irremovable	part	of	the	real	property.”		

Fixture,	Black’s	Law	Dictionary	(11th	ed.	2019).		The	plaza	was	intended	to	be	

irremovable	not	because	of	the	purpose	it	serves	when	attached	to	the	building,	

but	because	it	is	actually	a	part	of	the	building.		See McDonald,	2020	ME	119,	¶ 5,	

239	A.3d	662.		It	never	was	and	never	could	become	freely	movable	personal	

property,	 and	 therefore	 it	 could	 never	 become	 a	 fixture	 as	 that	 term	 is	

commonly	understood.		But	our	reliance	upon	a	fixture-based	approach	forced	

us	to	pretend	otherwise.

[¶34]		In	contrast,	under	a	function-based	approach,	we	would	be	free	to	

hold	 that	 the	 plaza	 was	 an	 appurtenance	 not	 because	 it	 was	 a	 fixture	 but	

because	it	served	the	building’s	essential	purpose	by	enabling	access	and	acting	

as	a	roof	to	a	portion	of	the	building.		See	id.	¶	14	(“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.”).		It	is	integral	to	the	building’s	

essential	purpose	because	of	its	function,	not	because	of	the	legal	fiction	that	it	
23

is	 a	 fixture.	 	 A	 function-based	 approach	 avoids	 the	 absurd	 fiction	 that	 we	

created	in	McDonald—that	a	plaza	is	a	fixture.

[¶35]		Contrary	to	what	this	Court	has	previously	said,	a	function-based	

approach	 does	 not	 “expand	 governmental	 liability	 by	 including	 personal	

property	 integral	 to	 the	 activities	 undertaken	 at	 a	 public	 building	 without	

regard	to	whether	the	property	belongs	or	is	attached	to	the	building.”		Sanford,	

2004	ME	73,	¶	11,	850	A.2d	325.		Rather,	a	function-based	approach	confers	the	

exact	degree	of	liability	the	Legislature	intended	by	immunizing	governmental	

entities	from	negligent	acts	for	which	insurance	is	unavailable	or	too	expensive

while	simultaneously	affording	citizens	a	remedy	for	injuries	suffered	through	

no	 fault	 of	 their	 own.	 	 2	 Legis.	 Rec.	 1827	 (1977)	 (remarks	 of	 Sen.	 Collins).		

A judicially-created,	narrowly	construed	fixture-based	approach	to	the	public	

building	exception	to	immunity	results	in	an	interpretation	that	contradicts	the	

plain	meaning	of	the	statute	and	the	clear	intent	of	the	Legislature.		It	expands	

immunity	 for	 the	government	and	 frustrates	citizens	who	seek	a	 remedy	 for	

injuries	caused	by	the	government’s	negligence.		Those	fortunate	enough	to	be	

injured	in	the	government’s	building	will	be	compensated,	while	those	injured	

in	the	government’s	parking	lot	will	not.
24

II.		APPLICATION

[¶36]	 	 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.

[¶37]	 	 Rather,	 the	 summary	 judgment	 record	 demonstrates	 that	 the	

parking	 lot	 is	 an	 appurtenance	 because	 it	 belongs	 to two	 public	 buildings,

Holmes	Hall	and	Fogler	Library.		The	University	stipulated	that	the	parking	lot	

serves	these	buildings:	“The	Parking	Lot’s	only	function	is	to	facilitate	the	Public	

Buildings’	 operations.”	 	 The	 University	 also	 stipulated	 that	 the	 only	 way	 to	

access	Fogler	Library	by	vehicle	is	by	using	the	parking	lot	and	that	it	maintains	

the	parking	lot	to	facilitate	the	library’s	essential	functions	and	operations.		In	

sum,	 the	 parking	 lot	 serves	 the buildings’	 essential	 purposes	 by	 facilitating	

access.		Moreover, contrary	to	the	Court’s	characterization, Court’s	Opinion	¶	3,	

the	 University stated	 in	 its	 Statement	 of	 Material	 Facts	 that	 it has	 liability	
25

insurance	 that	 may	 cover	 Klein’s	 injuries,	 demonstrating	 that	 the	 MTCA	 is	

operating	as	the	Legislature	intended.

[¶38]		Furthermore,	we	have	previously	said	that	a	governmental	entity’s	

failure	to	treat	icy	conditions	could	be	considered	a	negligent	act	or	omission	

in	 the	 maintenance	 of	 an	 appurtenance	 to	 a	 public	 building.	 	 McDonald,	

2020 ME	119,	¶¶	16,	21,	239	A.3d	662	(defining	“maintenance”	as	“the	care	and	

work	put	into	a	property	 to	keep	it	operating	and	productive;	general	repair	

and	upkeep” (quotation	marks	and	alteration	omitted)).		Here,	the	University	

admitted	that	it	acted	negligently	when	it	failed	to	maintain	the	parking	lot	by	

allowing	it	to	become	icy	and	that	its	negligence	directly	caused	Klein’s	injuries.		

Klein	 should	 be	 entitled	 to	 pursue	 her	 claim	 for	 damages	 for	 her	 injuries.		

Instead,	the	Court’s	interpretation	leads	to	yet	another	“absurd”	result:	Klein	is	

not	entitled	to	pursue	damages	for	slipping	on	ice	in	a	parking	lot	even	though	

the	plaintiff	in	McDonald was	entitled	to	damages	for	slipping	on	ice	in	a	plaza.		

See	id. ¶	22.

[¶39]		I	point	out	one	last	flaw	with	a	fixture-based	approach.		The	Court	

contends that	 the	parking	lot	“is	materially	distinguishable	 from	 the	plaza	in	

McDonald” because	 the	 parking	 lot is	 not	 physically	 annexed	 to	 a	 public	

building,	 it	 is	 simply	 contiguous	 to	 one.	 	 Court’s	 Opinion	 ¶	 11.	 	 The	 Court	
26

explains	that	“[t]he	fact	that	the	plaza	was	physically	annexed	to—formed	the	

roof	 of	 a	 portion	 of—the	 Portland	 Police	Department	 headquarters	 building	

was	 critical	 to	 the	 outcome	 in	McDonald.”	 	 Court’s	 Opinion ¶	 10.	 	However,	

similar	to	appurtenance,	the	Court’s	own	definition	of	fixture	is	not	limited	to	

something	 physically	 annexed	 to	 a	 building.	 	 Searle,	 2010	 ME	 89,	 ¶¶	 15-16,	

3 A.3d	 390.	 	 In	 Searle,	 we	 defined	 fixture,	 in	 relevant	 part,	 as	 something	

“physically	 annexed,	 at	 least	 by	 juxtaposition,	 to	 the	 realty	 or	 some	

appurtenance	 thereof.”		Id. ¶	16 (emphasis	added).		 Juxtaposition	means	 “an	

instance	 of	 placing	 two	 or	 more	 things	 side	 by	 side	 or	 near	 one	 another.”		

Juxtaposition,	 Black’s	 Law	 Dictionary	 (11th	 ed.	 2019).	 	 An	 object	 can	 be	

physically	annexed,	then,	by	being	actually	attached	to	the	building,	such	as	the	

plaza	 in	 McDonald,	 or	 by	 being	 physically	 annexed	 by	 juxtaposition—

contiguous,	to	be	concise—such	as	the	parking	lot	here.

[¶40]	 	 I	 also	 do	 not	 agree	 that	 the	 parking	 lot	 is	 not	 adapted	 to	 the	

buildings	it	serves.		The	parking	lot	is	adapted	to	the	unique	needs	of	Holmes	

Hall	and	Fogler	Library	because,	“[u]nlike	other	parking	areas	on	campus	that	

serve	 the	University’s	non-specific,	at-large	parking	needs,	 the	Parking	Lot	is	

primarily	used	by	faculty	and	staff	working	at	Holmes	Hall;	and	by	faculty,	staff,	

and	 visitors	 using	 the	 Fogler	 Library	 across	 the	 street.”	 	 The	 University	
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constructed	 and	 maintained the	 parking	 lot	 to	 facilitate	 access	 to	 these	

particular	public	buildings	and	it	“restrict[s]	use	of	the	Parking	Lot	to	faculty	

and	 visitors	 who	 wish	 to	 conduct	 business	 inside	 the	 Public	 Buildings	

consistent	with	[their]	essential	functions	and	operations.”		Indeed,	Klein	“could	

not	access	Fogler	Library	without	first	passing	through	the	Parking	Lot.”		The	

University	stipulated	to	these	facts	and,	as	such,	they	are	the	“factual	basis	upon	

which	to	determine	that	this	Parking	Lot	serves	[a]	special	purpose.”		Court’s	

Opinion	¶ 13.		Just	as	the	entrance	to	the	police	department	in	McDonald was	

inaccessible	but	for	the	plaza,	the	entrance	to	Fogler	Library is	inaccessible	but	

for	the	parking	lot.		Both	were	specifically	designed	to	 facilitate	access	in	the	

manner	 intended	 by	 the	 governmental entities	 that	 constructed	 them.	 	 The	

outcomes	of	these	cases	should	be	the	same;	the	different	results	demonstrate	

the	 inherent	 problem	 with	 the	 fixture-based	 approach’s	 definition	 of	

appurtenance	under	the	MTCA.

III.		CONCLUSION

[¶41]		I would	change	our	approach	to	defining	the	term	appurtenance,	

replacing	 the	 fixture-based	 approach	 with	 a	 function-based	 approach.	 	 A	

function-based	 approach	 is	 a	 sensible,	 practical	 approach	 that	 accurately	

reflects	 the	statute’s	plain	language	and	 the	intent	of	 the	Legislature	when	it	
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enacted	the	MTCA.		I	would	further	hold	that	the	parking	lot	that	serves	Holmes	

Hall	and	Fogler	Library	is	an	appurtenance	to	those	buildings	and	that	Klein	is	

entitled	to	pursue	damages	for	the	injuries	caused	by	the	University’s	failure	to	

maintain	the	parking	lot.

William	C.	Herbert,	 III,	Esq.,	and	Sean	V.	Walton,	Esq. (orally),	Hardy	Wolf	&	

Downing,	P.A.,	Lewiston,	for	appellant	Karen	S.	Klein

Christopher	C.	Dinan,	Esq.,	and	Laura	A.	Maher,	Esq. (orally),	Monaghan	Leahy,	

LLP,	Portland,	for	appellees University	of	Maine	System	and	University	of	Maine

Knox	County	Superior	Court	docket	number	CV-2020-16

FOR	CLERK	REFERENCE	ONLY