STATE OF MAINE RETAIL COMPENDIUM OF LAW

Transcription

1 STATE OF MAINE RETAIL COMPENDIUM OF LAW Prepared by Elizabeth G. Stouder, Esq. Richardson, Whitman, Large & Badger P.O. Box 9545 Portland, ME Tel. (207) USLAW Retail Compendium of Law

2 INTRODUCTION A. The Maine Court System. Maine state courts are organized on three levels: the District Court, the Superior Court, and the Supreme Judicial Court. There is no jury trial in District Court. Most civil actions of any significance are tried in Superior Court, where jury trial is available. The Superior Court sits in each of the sixteen counties of Maine. Trials are usually scheduled on a trailing list, which means that ordinarily a case will not have a fixed trial date, nor will it necessarily be reached for trial during that particular trial term, even though it is on the list. There is a fairly new Business and Consumer Court handles jury and nonjury business and consumer disputes. A Superior Court Justice or a District Court Judge may recommend that a case be assigned to the Business and Consumer Court, and any party or attorney may apply for a transfer. The Supreme Judicial Court, known as the Law Court, is an appellate court which hears appeals from the Superior Court and the District Court. Alternative Dispute Resolution. With certain exceptions, the parties to any lawsuit filed in, or removed to, Superior Court are required to participate in an ADR process (mediation, early neutral evaluation, or nonbinding arbitration) within 120 days after the court issues the Scheduling Order. M.R.Civ.P. 16B. B. Maine Federal Courts. Maine is one federal judicial district. Maine has two U.S. District Courts, one in Portland and Bangor. Many of the civil actions in U.S. District Court are ordinary lawsuits as to which the federal court has jurisdiction because there is diversity of citizenship (the parties are citizens of different states). In such cases the federal court must apply the substantive law of Maine, but follows its own procedural rules. Removal to Federal Court. If a lawsuit is commenced in Maine state court, the defendant(s) may remove the action to federal court on the basis of diversity of citizenship jurisdiction if (a) no defendant is a citizen of Maine, (b) no defendant is a citizen of the same state as the plaintiff, and (c) the matter in controversy exceeds $75,000. A corporation is a citizen of both the state where it is incorporated and the state where it has its principal place of business; an insurer is deemed also to be a citizen of every state and foreign state of which the insured is a citizen. 28 U.S.C. 1332, In order for a case to be removed, all codefendants must consent to the removal. Gibson v. Town of Brunswick, 899 [2]

3 F.Supp. 720 (D.Me. 1995). A qualifying lawsuit may be removed must be removed within 30 days after the defendant has received the complaint, summons, or initial pleading. 28 U.S.C. 1446(b). C. Default. Warning: Maine is a default jurisdiction. If a timely answer is not filed, it may be very difficult to get a default lifted in either state or federal court. Default and Default Judgment. In state court, a defendant must serve an answer within 20 days after service of the summons and complaint on that defendant. M.R.Civ.P. 12(a). The same 20-day deadline applies to a third-party defendant. M.R.Civ.P. 12(a). In federal court, a defendant must serve an answer within 21 days after service of the summons and complaint on that defendant. Fed.R.Civ.P. 12(a)(1)(A)(i). The same 21-day deadline applies to a third party defendant. Fed.R.Civ.P. 12(a)(1)(C). In lieu of an answer, a defendant may file a motion to dismiss under certain circumstances. D. General Statute of Limitations. The statute of limitations which applies to most personal injury and commercial claims is six years. Claims for wrongful death must be brought within two years. NEGLIGENCE A. General Negligence Principles. Duty of Care. Negligence is a breach of the legal duty to use ordinary care under the circumstances. Whether one party owes a duty of care to another is a question of law for the court, not the jury, to decide. In making that decision the court looks to historical precedent, ideals of morals and justice, social ideas as to where the loss should fall, foreseeability of harm, and the convenience of administration of the rule. Trusiani v. Cumberland & York Distributors, 538 A.2d 258 (Me. 1988). If there is a duty, then whether the duty has been breached is a question of fact for the jury (or the judge, in a bench trial). Comparative Fault and Contributory Negligence. Under 14 M.R.S.A. 156, the plaintiff s action is barred if his fault (negligence) is equal to or greater than the negligence of the defendant. If the plaintiff was less negligent than the defendant, some recovery is allowed but the amount may be reduced by such amount as the jury thinks just and equitable, considering the degree of the plaintiff s fault. If the plaintiff and defendant are each 50% negligent, there is no recovery. If the plaintiff is 20% negligent and the defendant is 80% negligent, for example, the plaintiff can recover some portion of his total damages. The amount of recovery, however, need not necessarily reflect the same percentage as the amount of the defendant s fault. Jackson v. Frederick s Motor Inn, 418 A.2d 168 (1980). [3]

4 B. Elements of a Cause of Action of Negligence. To establish a cause of action for negligence, the plaintiff must show (1) a duty of care owed by the defendant to the plaintiff, (2) the defendant s breach of that duty, and (3) injury to the plaintiff proximately caused by that breach. Parker v. Harriman, 516 A.2d 549 (1986). A plaintiff who lacks direct proof of negligence may rely on the doctrine of res ipsa loquitur ( the thing speaks for itself ) if (1) there has been an unexplained accident, (2) the instrument that caused the injury was under the management or control of the defendant, and (3) the accident would not ordinarily have happened absent negligence on the defendant s part. Welling Associates, Inc. v. Capital Fire Protection Co., 594 A.2d 1089 (1991). Under Maine law there are no degrees of negligence: no distinction between active and passive negligence, nor between ordinary and gross negligence. SPECIFIC EXAMPLES OF NEGLIGENCE CLAIMS A. Slip and Fall Type Cases. 1. General Rule for Property Owners: Plaintiff must prove that owner failed to exercise reasonable care to keep the premises reasonably safe. An owner of property is not an insurer of the Plaintiff s safety. Plaintiff must also exercise ordinary care for his/her own safety and is responsible to see what is there to be seen. 2. Foreign Object Slip and Falls Plaintiff must prove that: a. The presence of the foreign substance on the floor created a foreseeable risk of injury and was a cause of the Plaintiff s injury and damages; and b. The defendant caused the foreign substance to be on the floor; or Defendant had actual knowledge of the foreign substance on the floor; or The foreign substance was on the floor for such a length of time that the defendant should have known about it; or that the foreign substance was on the floor as the result of a recurrent condition. 3. Snow and Ice Sec Alexander Jury Instructions; Dumont v. Shaw s Supermarkets, Inc, 664 A.2d 846 (Me. 1995); Milliken v. City of Lewiston, 580 A.2d 151 (Me. 1990) [4]

5 4. Defenses a. General rule: To recover in a case in which the plaintiff alleges that he/she slipped and fell on ice or snow, the plaintiff must prove by a preponderance of the evidence that: 1. There was an accumulations of snow and/or ice on the premises that was a proximate cause of plaintiff s injuries; 2. The snow/ and or ice condition had been present for a time of sufficient duration prior to the plaintiff s injury to enable a reasonably prudent person to discovery and remedy or warn of it; and 3. The defendant knew of the snow and/or ice condition and did not correct or warn of it or did not know of the snow and/or ice condition but in the exercise of reasonable care should have known of and corrected or warned of the condition. Alexander, J., Maine Jury Instruction Manual, Section b. Storm in Progress: Maine does not follow the storm in progress rule which allows clearing activity to be deferred until after a storm, regardless of the risk to invitees during the storm. The fact that a storm is in progress and the actions the property owner is taking during the storm is relevant to the issue of whether the property owner was using reasonable care to keep the premises reasonably safe. Budzko v. One City Center Assoc. L.P., 2001 ME 37. c. Liability of Snow Removal Contractors An injured pedestrian does not have a direct claim against the contractor hired by the property owner to remove snow. Denman v. Peoples Heritage Bank, Inc., 1998 ME 12, 704 A.2d 411; See also Davis v. R.C. & Sons Paving, 2011 ME 88, 26 A.2d 787. d. Liability of municipalities for ice and snow on roads and sidewalks No town is liable to a pedestrian for snow or ice on any sidewalk or crosswalk, or for the slippery condition of any sidewalk or crosswalk. 23 M.R.S.A. 3658; Dickinson v. Town of Houlton, 669 A.2d 176 (1995). Neither the State nor the town is liable for accidents while a road surface is covered with snow or ice. 23 M.R.S.A A(1). e. Liability of property owners under city ordinances The fact that a city ordinance requires property owners to clear snow from sidewalks abutting their property does not create a cause of action against the owner in favor of any injured pedestrian. [5]

6 Defendants can offer the following defenses in a slip and fall case: a. Defendant exercised reasonable care to keep the premises reasonably safe; b. Defendant was unaware of the foreign object or snow and ice condition and had taken reasonable care to be aware of the condition; c. The condition was open and obvious; d. Plaintiff did not exercise reasonable care for his/her own safety; e. Defendant did not create or cause the condition and had taken reasonable care to be aware of, and address, any dangerous conditions. 5. Subsequent Remedial Measures Evidence of subsequent measures is inadmissible to prove negligence or other culpable conduct. 14 M.R.S.A. 1403; Federal Rule of Evidence 407; Freeman v. Funtown/Splashtown, USA, 2003 ME 101, 828 A.2d 752. B. Liability for Violent Crime. Maine has limited law on the liability of premises owners, retail operations, inns and hotels for violent crimes which occur on or near their premises or premises. A proprietor of an inn, hotel, motel, restaurant or similar establishment is liable for an assault upon a guest or patron by another guest, patron or third person when the proprietor has reason to anticipate such assault and fails to exercise reasonable care under the circumstances to prevent the assault or interfere with its execution. Kaechele v. Kenyon Oil Co., 747 A. 2d 167 (2000); Brewer v. Roosevelt Motor Lodge, 295 A. 2d 647 (Me. 1972). Evidence of prior assaults and similar incidents, including those reported police, may be admissible on the issues of notice and foreseeability. A property owner does not have the same heightened or special duty regarding security to patrons of a business operated by another on or near the parking lot. Belyea v. Shiretown Motor Inn, LP, 2 A.3d 276 (2010). C. Claims Arising From the Wrongful Prevention of Thefts. 1. False Arrest and Imprisonment Maine generally follows the Restatement (2 nd ) of Torts, Section 35, which provides: (1) An actor is subject to liability to another for false imprisonment if (a) he acts intending to confine the other or a third person within boundaries fixed by the actor; (b) his act directly or indirectly results in such confinement of the other; and (c) the other is conscious of the confinement or is harmed by it. (2) An act which is not done with the intentions stated in subsection (1)(a) does not make the actor liable to the other for a merely transitory or otherwise harmless confinement although the act involves an unreasonable risk of imposing it and therefore would be negligence or reckless if the risk threatened bodily harm. [6]

7 2. Malicious Prosecution In order for the Plaintiff to make out a claim for malicious prosecution, plaintiff must prove (1) that defendant initiated, procured or continued an action without probable cause, that is without reasonable grounds to believe that the party against whom the action was initiated had committed the charge defense, (2) the defendant acted with malice and, (3) the plaintiff received a favorable termination of the proceedings. Reasonable grounds is information sufficient to justify a person who is calm and not governed by passion, prejudice or lack of ordinary caution and care in believing that the person committed the charged offense. Malice means ill will toward the plaintiff or reckless disregard as to whether the actions defended or initiated were supported by the facts. 3. Negligent Hiring, Retention, or Supervision of Employees An employer may be liable for the actions of its employee taken in the scope of employment. Conduct of an employee is within the scope of employment if, but only if (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the employer; and (d) if force is intentionally used by the employee against another, the use of force is not unexpectable by the employer. Dragomir v. Spring Harbor Hospital, 2009 ME 51, 970 A.2d 310. The fact that the employee s predominant motive was to benefit himself or a third person does not necessarily mean that he was not within the scope of his employment. O Brien v. United States, 236 F. Supp. 792 (D. Me. 1964). Under some circumstances an employer may even be liable for the intentional tort of its employee. McLain v. Training and Development Corp., 572 A.2d 494 (1990); but see Mahar v. Stonewood Transport, 2003 ME 63, 823 A.2d 540 (2003). While no Law Court decision has ever imposed on an employer vicarious liability for an accident caused by the employee when returning home from work, that possibility was recognized in Spencer v. VIP, Inc., 2006 ME 120, 910 A.2d 366 (2006). The Law Court has left open the possibility of a franchisor being held liable for the torts of an employee of a franchisee if the franchisor retains the right to control the employee. Rainey v. Langen, 2010 ME 56, 998 A.2d 342. Negligent Supervision of Employee. Maine s Supreme Court has refrained from recognizing a separate tort of negligent supervision, Hinkley v. Penobscot Valley Hospital, 2002 ME 70, 794 A.2d 643; Napieralski v. Unity Church of Greater Portland, 2002 ME 108, 802 A.2d 391, except where liability is based on certain narrowly defined special relationships : common carriers and their passengers; innkeepers and their guests; possessors of land and their invitees; and those who are required by law to take physical custody of another, or who voluntarily do so, such as to deprive the other of his normal opportunities for protection. Not every [7]

8 fiduciary relationship is such a special relationship. Dragomir v. Spring Harbor Hospital, 2009 ME 51, 970 A.2d 310. INDEMNIFICATION AND INSURANCE-PROCUREMENT AGREEMENTS A. Indemnification. Defense and indemnity provisions in commercial contracts are enforceable. Provisions that require one party to indemnify the other party for the other party s own negligence or fault, however, are not favored. To be enforceable, such a provision must clearly and unequivocally state the mutual intention of the parties to provide indemnification even if that party is at fault. See e.g., Lloyd v. Sugarloaf Mountain Corp., 833 A.2d 1, 4 (Me. 2003; Emery Waterhouse v. Lea, 467 A 2d. 896 (Me. 1983). In addition, contractual provisions waiving an employer s right to workers compensation immunity are disfavored and a clear intention to waive the immunity must be demonstrated in order to show that an employer agreed to waive its immunity and indemnify another party with whom it contracted. B. Insurance Procurement Agreements. Agreements to procure insurance are not agreements of insurance. If one party to a contract agrees to procure insurance for another, the first inquiry is whether the party was actually named as an insured or additional insured under the policy. If the party seeking coverage was named in an insurance policy, the insurance contract governs the insured s rights and the insurer s responsibilities. See, e.g., Endre v. Niagra Fire Insurance, 675 A. 2d 511 (Me. 1996). If a party signed a contract obligating it to procure insurance for another party and it does not, the party may be liable for breach of contract. That party may also be held to have assumed the liabilities of an insurer. Boise Cascade Corp. v. Main- Erbauer, Inc., 620 A.2d 280 (Me. 1983). The party who agreed to procure the insurance can argue that it had no obligation to purchase insurance which provided coverage for a) the other party s own negligence or b) which waived an employer s right to workers compensation immunity under the case law cited in Section A above. C. The Duty to Defend. If there is insurance, the duty to defend is covered by the applicable insurance policy. DAMAGES [8]

9 A. Compensatory Damages. 1. General Damages for Personal Injuries An injured plaintiff may recover compensatory damages, where applicable, for past and future medical expenses; lost wages and future loss of earning capacity; past and future pain and suffering; permanent impairment; and loss of enjoyment of life. Evidence that the plaintiff has received partial or total reimbursement from collateral sources, such as health insurance or workers compensation, is ordinarily inadmissible in evidence. Werner v. Lane, 393 A.2d 1329 (1978). Such collateral source evidence may be admissible, however, for other purposes such as to show plaintiff s disincentive to return to work. Grover v. Boise Cascade Corp., 2004 ME 119, 860 A.2d 851. Maine s Supreme Court has not addressed the question of whether the plaintiff may recover the dollar amounts billed by the doctors and hospitals, or only the lesser amounts actually paid by health insurers or Medicaid in full satisfaction of the bill. There are several conflicting Superior Court decisions on this point. Evidence of the plaintiff s past earnings is relevant to his claim for impairment of future earning capacity. The plaintiff may recover the present value of his anticipated loss of future income. Ginn v. Penobscot Co., 334 A.2d 874 (1975). He has a duty to mitigate his damages by seeking alternative employment. Michaud v. Steckino, 390 A.2d 524 (1978). In certain cases a plaintiff may recover damages for the loss of a particular job opportunity. Snow v. Villacci, 2000 ME 127, 754 A.2d 360. Damages for emotional distress may be recoverable for tortious conduct, but are generally not recoverable for breach of contract. McAfee v. Wright, 651 A.2d 371 (1994). While there are no Maine cases specifically addressing claims for emotional distress arising solely from damage to property, both the Restatement (Second) of Torts and the vast majority of jurisdictions that have considered this issue follow the rule that plaintiffs may not recover for the emotional distress associated with negligent damage to property. To prevail on a claim of intentional infliction of emotional distress (IIED), the plaintiff must show that the defendant intentionally or recklessly inflicted emotional distress so severe that no reasonable person could be expected to endure it, and that the defendant s conduct was extreme, outrageous, atrocious, and utterly intolerable. Vicnire v. Ford Motor Credit Co., 401 A.2d 148 (1979). The tort is restricted to cases of extraordinary conduct and unbearable emotional distress. By contrast, the tort of negligent infliction of emotional distress has a lower threshold [9]

10 both for the conduct and for the severity of the harm, but the plaintiff must prove that the defendant violated a duty of care owed to the plaintiff. Curtis v. Porter, 2001 ME 158, 784 A.2d 18. The Law Court has found such a duty to exist in only two situations: 1) a bystander may recover for emotional distress foreseeably resulting from viewing an accident and, 2) a plaintiff may recover for negligent infliction when there is a special relationship between him and the defendant. Curtis v. Porter, 2001 ME 158, 784 A.2d 18. 1(a). Pre-existing Injuries The defendant is liable only for the plaintiff s injuries which he caused, not for the plaintiff s preexisting injuries. Under Maine law it is the defendant s burden, however, to prove that some of the plaintiff s injuries were preexisting. If the plaintiff s injuries cannot be apportioned between present and prior causes, then the defendant is liable for the entire damage. Lovely v. Allstate Ins. Co., 658 A.2d 1091 (1995). B. Punitive Damages. In Tuttle v. Raymond, 494 A.2d 1353 (1985), the Law Court limited the recovery of punitive damages to those situations where the defendant acted with malice : either deliberate ill will toward the plaintiff, or conduct so outrageous that such ill will could be implied. Gross, wanton, or reckless conduct does not support punitive damages; malice must be alleged and proved. In addition, proof of malice must be made by clear and convincing evidence, a higher standard than mere preponderance of the evidence. Inadvertent conduct, no matter how egregious, does not give rise to punitive damages. Even deliberate conduct does not necessarily give rise to punitive damages. In Boivin v. Jones & Vining, Inc., 578 A.2d 187 (1990), the Law Court affirmed a judgment for fraud but vacated the award of punitive damages. Punitive damages are not available for breach of contract alone. Drinkwater v. Patten Realty Corp., 563 A.2d 772 (1989). Punitive damages are available in a wrongful death action, but in an amount not to exceed $250, A M.R.S.A C. Wrongful Death. A claim for wrongful death may be brought by the personal representative of the deceased. 18-A M.R.S.A The action is brought on behalf of the statutory beneficiaries: the surviving spouse and/or minor children, or other heirs of the decedent. The damages recoverable are: a. Pecuniary loss resulting from the death. b. The decedent s medical and funeral expenses. [10]

11 c. An amount not to exceed $500,000 for the loss of comfort, society, and companionship of the decedent, including any damages for emotional distress suffered by the beneficiaries arising from the same accident. The ceiling of $500,000 is applicable to all emotional distress suffered by the beneficiaries arising from the same facts, including (for example) the distress of having witnessed the accident. Carter v. Williams, 2002 ME 50, 792 A.2d This limit is per decedent, not per beneficiary. d. Punitive damages (if appropriate) in an amount not to exceed $250,000. e. Conscious suffering of the decedent. Although the statute is confusingly worded and the Law Court has not specifically addressed this point, it appears that there is no dollar ceiling on this element of recovery. JUDGMENT AND SETTLEMENT A. Interest on Judgment. Interest on Judgments. In most civil actions prejudgment interest is allowed at the one-year U.S. Treasury bill rate plus 3%. (The one-year U.S. Treasury bill rate means the weekly average one-year constant maturity Treasury yield for the last full week of the calendar year immediately prior to the year in which prejudgment interest begins to accrue.) 14 M.R.S.A B. B. Costs and Attorneys Fees. Ordinarily, the party who prevails at trial is not entitled to recover his attorneys fees from the losing party. There are isolated statutory exceptions to this rule. The prevailing party is entitled, however, to recover certain costs from the losing party. In state court, the prevailing party may always recover filing fees, fees for service of process, statutory witness travel fees, and reasonable travel expenses of the party or his attorney. 14 M.R.S.A B. The court may also allow recovery of deposition costs, medical report costs, and expert witness fees and expenses. 14 M.R.S.A C. C. Minor Settlements. The settlement of any claim brought on behalf of a minor is invalid unless approved by order of court or affirmed by entry of judgment. This is true regardless of the size of a claim. If no action has been commenced, a minor by next friend may apply to any court in which such an action might have been commenced for an order approving a proposed settlement. 14 M.R.S.A The court must determine that the settlement is fair, reasonable, and in the minor s best interest. Corey v. Corey, 2002 ME 132, 803 A.2d The procedure for obtaining settlement approval is set forth in M.R.Civ.P. 17A. The court generally [11]

12 requires that the net settlement proceeds be deposited in a bank account or invested in an investment account until the minor is an adult, and withdrawals require court approval. [12]