Blanchette v. Clough

• Court: Superior Court of Maine
• Decided: May 10, 2007
• Docket: YORcv-05-229
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. CV-05,.229

SUSAN L. BLANCHETTE, Administratrix of the Estate of Jennifer L. Couture,

Plaintiff

v. ORDER AND DECISION

RICHARD W. CLOUGH, JOHN McSHEEHEY, Trustees of Big Rock Realty Trust, BIG ROCK REALTY TRUST, and MARK RIOUX, Lnoz Z0 en" Defendants A~V~811 MV1 lHJ3~8~V8 "1 01VNOO

Susan Blanchette, as the administratrix of the estate of her daughter Jennifer

Couture, has filed suit because of the death of her daughter following a party on July

26, 2003 organized by the Mountain Men Motorcycle Club. Her daughter was killed

while riding on a motorcycle driven by Mark Rioux who had been at the party and was

intoxicated. The party was held on land owned by Big Rock Realty Trust.

Ms. Blanchette has filed an amended complaint alleging that Mr. Rioux and Big

Rock and its Trustees Richard Clough and John McSheehey are liable both under the

Maine Liquor Liability Act, 28-A M.R.S.A. §§2501-et seq. and under common law. Big

Rock, Mr. Clough and Mr. McSheehey have filed a motion for summary judgment

which has been briefed and argued.

The Maine Liquor Liability Act defines "server" as a "person who sells, gives or

otherwise provides liquor to an individual." 28-A M.R.S.A. §2503(5). Servers, regardless of whether they have or are required to have a liquor license or not, can be

liable, under varying circumstances depending upon their status, for either the

negligent or reckless service of liquor. The Act states, however, that, "This Act is the

exclusive remedy against servers who may be made defendants ... for claims by those

suffering damages based on the servers' service of liquor." 28-A M.R.S.A. §2511.

Under the Act there is a notice requirement obligating the plaintiff to " ...give

written notice to all defendants within 180 days of the date of the server's conduct

creating liability under this Act." 28-A M.R.S.A. §2513. The defendants who filed this

motion claim that Mr. Rioux was not given a timely notice. The plaintiff, through an

affidavit of her counsel, has attempted to rebut this claim by asserting that timely notice

was mailed. Regardless of whether this effort and the plaintiff's opposition meets the

precise requirements of Rule 56(h)(2) and (4), M.R.Civ.P., there is a more fundamental

problem with the plaintiff's claim under the Act.

There is no evidence that Big Rock, Mr. Clough or Mr. McSheehey were

"servers". While the Mountain Men or their individual members may have been

"servers" the evidence does not establish that these defendants were. The Big Rock

property was used to host a gathering where apparently the likelihood of excessive

alcohol consumption was high. Big Rock and its trustees as the property owners do not,

however, under our facts come within the definition of server. While this is a very

tragic case the Maine Liquor Liability Act does not impose liability against Big Rock and

the trustees.

As a secondary claim Ms. Blanchette has suggested that common law liability

also exists. Since the Big Rock defendants are not "servers" they are not necessarily

protected by the provisions of 28-A M.R.S.A. §2511 which states that the Act is the

exclusive remedy against "servers". The plaintiff, however, has provided no precedents

2 where the owner of real estate was found liable because someone using the property

may have recklessly or negligently served alcohol. In her objection to motion for

summary judgment the plaintiff stated, "The Plaintiff agrees, that the (Act) is the only

remedy against the servers, but contends that a conspiracy theory with respect to their

contributions to the issue of serving liquor is appropriate..." No cases were cited

supporting the claim and Peters v. Saft, 597 A.2d 50 (Me. 1991) does not provide a basis

for common law or other liability against a non-server owner of the premises where

alcohol was served. The concurring opinion is actually somewhat helpful to the

defendants. Also see "From 'Maine Law' to Model Act: Liquor Liability in Maine", 39

Me.L.Rev. 149, 183, note 194. (1987), where it is suggested that "Suits sounding in

negligence against the owner of a building in which liquor is served should be barred

by the Liquor Liability Act's 'exclusive remedy' provision ..." Lastly, also see Trusiani

v. Cumberland & York Distributors, Inc., 538 A.2d 258 (Me. 1988).

The entry is:

The motion of defendants Richard W. Clough, John McSheehey and Big Rock Realty Trust for summary judgment is granted. Judgment for Richard W. Clough, John McSheehey and Big Rock Realty Trust on the amended complaint with costs.

Dated: May 10,2007

R. Peter Taylor, Esq. - PL W. G. Large, Esq. - DEFS RICHARD W. CLOUGH, TRUSTEE, JOHN MCSHEEHEY, TRUSTEE BIG ROCK REALTY TRUST MARK RIOUX (DEFENDANT) - PRO SE