Dalzell v. Brousseau Enter., Inc.

• Court: Superior Court of Maine
• Decided: October 4, 2010
• Docket: YORcv-08-354
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. CV-08-354 C-1 f) 7;>- 10 R.. - I') i:,r : ;;;; ;)

NANCY DALZELL, Personal Representative for the Estate of ALLEN BENNISON,

Plaintiff

v. ORDER

BROUSSEAU ENTERPRISES, INC., d/b/ a AIRPORT VARIETY,

Defendant

Nancy Dalzell is the personal representative for the estate of her son, Allen

Bennison. Mr. Bennison died after being stabbed by Joshua Stewart behind the Airport

Variety convenience store in Sanford, Maine. Ms. Dalzell brought this action on the

estate's behalf against the owner of Airport Variety, Brousseau Enterprises, Inc.,

alleging that Mr. Bennison wrongfully died due to the company's negligence. The

defendant moves for summary judgment. Following hearing, the motion will be

Granted.

BACKGROUND Airport Variety is located in an industrial, non-residential area in Sanford,

Maine. (Supp. S.M.F. <]I 7.) Prior to January 23, 2007, there was little criminal activity at

the store. (Supp. S.M.F. <]I 8; Bates Depo. at 62.) Apart from minor thefts, there had been

an incident involving a bag of suspicious white powder in 2004, and a domestic assault

in 2004 or 2005. (Supp. S.M.F. <]I 8; Opp. S.M.F. <]I 8; Bates Depo. at 62-63.) Defendant

Brousseau Enterprises, Inc., purchased Airport Variety in January 2006. (Supp. S.M.F.

<]I 11.) Between January 2006 and January 23, 2007, the police were only called to Airport Variety once. (Supp. S.M.F. err 11.) That call was placed because a van had damaged a

fence. (Supp. S.M.F. err 11; Ibrahim Aff. err 12.)

On January 23, 2007, Crystal D. Son and Jessica Prevatt were the employees on

duty at Airport Variety. (Supp. S.M.F. errerr 14-15.) Joshua Stewart, John Stewart, and

James Curit entered the store some time before 8:00 p.m. l (Supp. S.M.F. err 16; Pl.'s Add'l

S.M.F. err 25.) Ms. Son was acquainted with the Stewarts because they were her cousins

by marriage. (Supp. S.M.F. err 17.) She had also worked with Joshua Stewart at another

gas station in 2004. (Supp. S.M.F. err 19.) Ms. Son had reported Joshua to the police for a

theft she witnessed him commit at that job. (Supp. S.M.F. err 19.) Despite these

connections, Ms. Son testified that she had not spoken with either of the Stewarts for a

number of years. (Def.'s Opp. to 1'l.'s Add'l S.M.F. err 27; Son Depo. at 37.)

After breaking contact with the Stewarts, Ms. Son had heard rumors that the men

were involved in drug dealing but did not know if the rumors were true, and she did

not believe that the men were dealers. (P1.'s Add'l S.M.F. err 28; Son Depo. at 37.) Ms. Son

did not observe that Joshua Stewart was carrying a weapon or that he was angry, and

there is no indication that she had reason to believe he might be violent. (Supp. S.M.F.

errerr 24-25.) Ms. Son did not know James Curit. (Supp. S.M.F. err 17.)

Jessica Prevatt, the other Airport Variety employee on duty that evening, had

known James Curit when she was approximately eleven years old but had not

socialized with him since. (Pl.'s Add'l S.M.F. err 40; Def.'s Opp. to Pl.'s Add'l S.M.F. err 40;

Prevatt Depo. at 22-24.) She knew James Stewart because her friend had dated his

brother approximately eight years earlier. (P1.'s Add'l S.M.F. err 41; Def.'s Opp. to Pl.'s

There is some dispute about whether a fourth man was also present. (Compare Supp. S.M.F. lJI 16 with Supp. S.M.F. lJI 17 and Pl.'s Add'l S.M.F. lJI 26.) If this individual was present, he allegedly left before any of the actions giving rise to this litigation occurred and he is therefore immaterial to this motion.

2 Add'l S.M.F. <[ 41; Prevatt Depo. at 33-34.) Ms. Prevatt did not know Joshua Stewart.

(Supp. S.M.F. <[ 36.)

When the three men came into the store, Ms. Prevatt was in the process of taking

trash out to the store's dumpster. (Supp. S.M.F. <[ 35.) The store did not have a back

door so Ms. Prevatt had to walk the trash from behind the counter, out the front door,

and around to the dumpster behind the building. (Pl.'s Add'l S.M.F. <[ 43.) She made

about three trips that evening. (Supp. S.M.F. <[ 38.) As Ms. Prevatt was emptying the

trash, the man that Ms. Son did not know (presumably Mr. Curit) attempted to

purchase alcohol. (See Supp. S.M.F. <[ 18.) Ms. Son perceived that the man· was

intoxicated and refused to sell him the alcohol. (Supp. S.M.F. <[ 18.) Joshua Stewart was

seen looking at the store's shelves, and he asked Ms. Son where the store's cameras

were located. (Pl.'s Add'l S.M.F. <[<[ 29, 31.) She responded that they were everywhere.

(Pl.'s Add'l S.M.F. <[ 31.) John Stewart then stated that she was only referring to the

cameras inside the store? (Pl.'s Add'l S.M.F. <[ 33.) Joshua Stewart then stated that he

had "business to take care of."3 (Pl.'s Add'l S.M.F. <[ 34.) Based on the men's behavior,

Ms. Son believed that they intended to steal from the store and asked them all to leave.

(Supp. S.M.F. <[<[ 20-21; Pl.'s Add'l S.M.F. <[ 29; Son Depo at 38-39.) They left the store

without incident. (Supp. S.M.F. <[ 21.)

2 The source for this is Detective Armand L. Lucier's summary of an interview he conducted with Ms. Son shortly after the incident. It is not sworn, authenticated, or admitted to by the defendants, and it does not concern matters within the scope of Ms. Son's employment, making it generally inadmissible hearsay. It would be admissible to show the effect on Ms. Son's state of mind and whether she should have foreseen the stabbing. In any event, the court notes that Ms. Son's statements during that interview are entirely consistent with her subsequent deposition testimony, despite the plaintiff's suggestions to the contrary.

3 This hearsay statement is admitted by the defendants, and is admissible to show foreseeability and effect on Ms. Son. In Detective Lucier's summary, he indicated that Ms. Son told him that she interpreted Joshua Stewart's statement about "business" to mean a drug deal. (Pl.'s Add'l S.M.F. <]I 37.) During her deposition, Ms. Son explained that she formed this belief after the stabbing occurred. (Pl.'s Add'l S.M.F. <]I 35.) Ms. Son specifically denied forming that belief when the men left the store. (Pl.'s Add'l S.M.F.

3 After they exited the store, Ms. Son saw the men briefly walk back and forth in

front of the store, and then begin to walk toward their vehicle. (Pl.'s Add'l S.M.F.

38; De£"s Opp. to Pl.'s Add'l S.M.F.

had left the premises. (Supp. S.M.F.

S.M.F.

saw John Stewart and James Curit outside the store. (Pl.'s Add'l S.M.F.

Prevatt thought they appeared "wasted," but did not believe they were acting

suspiciously. (Pl.'s Add'l S.M.F.

Depo. at 41.)

On her third trip outside, Ms. Prevatt saw a white Jeep parked in the back of the

store parking lot. (Supp. S.M.F.

argument and screaming from the area of the Jeep. (Supp. S.M.F.

the argument because she did not have time to do so. (Pl.'s Add'l S.M.F.

Opp. to Pl.' s Add'l S.M.F.

One of the people running from the Jeep was Allen Bennison. (Supp. S.M.F.

lying on the floor and Ms. Son was on the phone calling for help. (Supp. S.M.F.

44.) He had been stabbed. (Supp. S.M.F.

Mr. Bennison's chest wounds, and she and Ms. Son applied pressure to the wounds

until help arrived. (Supp. S.M.F.

Bennison, nor did they know that he was on the premises before the stabbing occurred.

(Supp. S.M.F.

4 At the time of the stabbing, Mary Beth Stewart and Joshua Stewart were married

but had separated. (Supp. S.M.F. 145.) Ms. Stewart had become engaged to Mr.

Bennison and the two were living together. (Supp. S.M.F. 146; Pl.'s Add'l S.M.F. 193.)

Joshua Stewart and Allen Bennison were acquainted and knew of each other's

relationship with Ms. Stewart. (Pl.'s Add'l S.M.F. 148.) However, Ms. Stewart had seen

Joshua on the day of the stabbing and had downplayed her relationship with Mr.

Bennison because she was concerned that Joshua was suicidal. (Supp. S.M.F. 1147, 49;

Pl.'s Add'l S.M.F. 11 92, 96.)

The evidence shows that on the night of the stabbing Ms. Stewart drove Mr.

Bennison to the rear of Airport Variety so that he could complete a drug deal with

James Curit and John Stewart. 4 (Supp. S.M.F. 1127, 46; Stewart Depo. at 4, 7-8, 13-14.)

They had repeatedly called Ms. Stewart to set up a deal. (Pl.'s Add'l S.M.F. 194.) Ms.

Stewart and Mr. Bennison intended to sell the drugs and then go to a local restaurant

for dinner. (Supp. S.M.F. 132.) Ms. Stewart drove her Jeep behind Airport Variety

4 The plaintiff contests this assertion with two pieces of evidence and one legal argument. First, in her own deposition the plaintiff testifies that Mary Beth Stewart called her the day after the stabbing to confess that "[t]hat it was her fault ... because ... she set it all up.... [T]hey were there just to beat him up and someone threw Josh a knife." (Pl.'s Add'l S.M.F. 9I 50; Dalzell Depo. at 49.) Ms. Stewart allegedly said that she knew it was going to happen, and that she took Mr. Bennison "there so that he could get beat up." (Pl.'s Add'l S.M.F.9I 50; Dalzell Depo. at 49­ 50.) This is clearly hearsay and is inadmissible as substantive evidence. It would be admissible at trial for the limited purpose of impeaching Ms. Stewart's testimony. However even if the plaintiff is correct and Ms. Stewart did say those things, they are not inconsistent with Ms. Stewart's testimony that Mr. Bennison went to Airport Variety to sell drugs. Ms. Stewart could have agreed to bring him to the drug deal, and then created a set-up by telling Joshua Stewart where Mr. Bennison would be. The evidence does not controvert the defendant's assertion. The second piece of evidence is the testimony of the victim's brother, Donald Bennison, III. Donald Bennison testified that he had never seen Allen Bennison use drugs and did not know him to sell drugs. (Bennison Depo. at 14.) The witness can only testify to his knowledge, and the fact that he did not know Allen Bennison to use or deal drugs does not controvert Ms. Stewart's testimony that she drove Mr. Bennison to the store so that he could sell drugs. Donald Bennison does not profess any knowledge of the actual events leading up to the stabbing, and his testimony does not controvert Ms. Stewart's. Finally, the plaintiff cites the statutory presumption that the deceased was acting with due care to rebut the implication that he was engaged in illegal drug trafficking at the time of his death. 14 M.R.S. § 160 (2009). The presumption relates to contributory negligence and does not stand for what the plaintiff claims, i.e. that the court must presume that Mr. Bennison did not go to Airport Variety to engage in illegal activity.

5 because both she and Mr. Bennison wanted to avoid detection. (Supp. S.M.F. err 29.)

They knew that employees would be able to see them in front of the store, and that

there were cameras there. (Supp. S.M.F. errerr 30-31.) They did not want to be seen or

filmed while dealing drugs. (See Supp. S.M.F. err 29.) Neither Mr. Bennison nor Ms.

Stewart entered the store prior to the stabbing. (Supp. S.M.F. err 33.)

Shortly after Mr. Bennison and Ms. Stewart arrived, the altercation ensued. It

occurred partially in the Jeep, as only Joshua Stewart was standing outside. (Supp.

S.M.F. err 41.) Joshua stabbed Mr. Bennison while he was seated in the vehicle. (Supp.

S.M.F. err 42.) After being stabbed, Mr. Bennison exited the Jeep and entered the store

where the employees phoned 911 and provided first aid. (Supp. S.M.F. errerr 53-55.)

Plaintiff Nancy Dalzell, Mr. Bennison's mother and personal representative,

initiated this suit on behalf of his estate on December 16, 2008. The complaint alleges

that the store's negligence caused Mr. Bennison's death, and seeks to recover for

wrongful death, pain and suffering, and survival actions pursuant to 18-A M.R.S. §§ 2­

804, 3-817 (2009). The defendant moves for summary judgment, alleging that it owed

Mr. Bennison a minimal duty of care as a trespasser, or that the events leading to his

death were not reasonably foreseeable under the circumstances.

DISCUSSION

Summary judgment is appropriate where there are no genuine issues of material

fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c);

see also Levine v. KB.K. Caly Corp., 2001 ME 77, err 4, 770 A.2d 653, 655. A motion for

summary judgment must be supported by citations to record evidence of a quality that

would be admissible at trial. Id. at err 6, 770 A.2d at 656 (citing M.R. Civ. P. 56(e)). An

issue of "fact exists when there is sufficient evidence to require a fact-finder to choose

between competing versions of the truth at trial." Inkell v. Livingston, 2005 ME 42, err 4,

6 869 A.2d 745, 747 (quoting Lever v. Acadia Hasp. Corp., 2004 ME 35, 'lI 2, 845 A.2d 1178,

1179). "Summary judgment is appropriate even when concepts such as motive or intent

are at issue, .. : if the non-moving party rests merely upon conclusory allegations,

improbable inferences, and unsupported speculation.'" Dyer v. DOT, 2008 ME 106, 'lI 14,

951 A.2d 821,825 (quoting Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir. 2007)).

The plaintiff claims that Airport Variety negligently breached a duty it owed Mr.

Bennison, proximately causing the fatal stab wounds inflicted by Joshua Stewart. The

court's initial concern is defining the existence and scope of the alleged duty. "The

common-law test of duty is the probability or foreseeability of injury to the plaintiff."

Brewer v. Roosevelt Motor Lodge, 295 A.2d 647, 651 (Me. 1972).

Generally "[a] possessor of land who holds it open to the public for entry for his

business purposes is subject to liability to members of the public while they are upon the

land for such a purpose" if they are assaulted by a third person, the possessor '''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., Inc.,

2000 ME 39, 'lI'lI 8, 10 n.5, 747 A.2d 167, 170 (quoting Brewer, 295 A.2d at 651; citing

Restatement (SecondJ of Torts § 344 (1965)) (emphasis added). However, this rule applies

"only while [a person] is on the part of the land to which [the] invitation extends-or in

other words, the part of the land upon which the possessor gives him reason to believe

that his presence is desired for the purpose for which he has come." Collomy v. School

Admin. Dist. No. 55, 1998 ME 79, 'lI 7, 710 A.2d 893, 895 (quoting Restatement (Second) of

Torts, § 331 cmt. 1 (1965)) (quotations omitted). When a member of the public "enters or

remains upon" the possessor's land for a purpose wholly unrelated to the possessor's

business "without a privilege to do so created by the possessor's consent or otherwise,"

that person is a trespasser. Id. 'lI 6,710 A.2d at 895 (quoting Restatement (Second) of Torts,

7 § 329 (1965)) (quotations omitted). The only duty owed a trespasser is "to refrain from

wanton, willful or reckless behavior." Cilley v. Lane, 2009 ME 133,

486 (citing Collomy, 1998 ME 79,

"Trespass in a negligence suit ... is a threshold issue," and "is not an affirmative

defense." ld.

determining such status is the purpose for which the injured party came upon the

defendant's premises, since in order to" be owed a duty of care, "that purpose must

coincide to some degree with the express or implied 'invitation' which the defendant

extended." RW. Gascoyne, Annotation, Status of Once Who Enters a Store or Other Place

of Public Resort Solely for Purposes of Using Facilities Accessible to Public, Such as Telephone,

Mailbox, Lavatory, or the Like, 93 A.L.R2d 784 (2008). The uncontroverted evidence

shows that Mr. Bennison was on Airport Variety's premises for private, illegal reasons

entirely unrelated to the possessor's business purposes. Airport Variety is a retail

convenience store and gas station that sells small consumable goods to the public. It

only has one entrance, located in the front of the building where it is visible to the

store's employees and is monitored by security cameras. This configuration precludes

most legitimate business from occurring behind the store, and the presence of the

dumpster indicates that this rear area was reserved for use of the possessor and its

employees.

Mr. Bennison and Ms. Stewart purposefully went to the area behind Airport

Variety for the express purpose of avoiding the store's employees and evading the

store's security measures, such as the cameras positioned at the store's entrance. They

did this because they intended to engage in illegal activity on the defendant's premises,

without the defendant's permission. The evidence shows that Mr. Bennison and Ms.

Stewart intended to complete or at least participate in a drug deal, and that Ms. Stewart

8 may have had the additional purpose of setting up the attack on the victim. Airport

Variety had no reason to expect that its patrons would actively circumvent its security

to engage in illegal activity well beyond the business purposes for which they were

invited. This covert and illicit activity clearly brands Mr. Bennison as a trespasser. s See

Poulin v. Colby College, 402 A.2d 846, 851 n.5 (Me. 1979) ("[A] landowner ... has no

reason to expect a trespasser's presence," so "a trespasser has no basis for claiming

extended protection.")

The plaintiff disputes this characterization on the grounds that Mr. Bennison's

purpose for being on the defendant's property should be irrelevant when determining

his legal status as a trespasser. There is no question "that business entrepreneurs have a

strong commercial interest in attracting to their premises members of the general public

having no preexisting and consciously formulated intention of engaging in an

immediate business transaction ...." RW. Gascoyne, supra. The Law Court essentially

recognized this principle in Poulin v. Colby College when it abolished the distinction

between invitees and licensees and held that a landowner owes a duty of reasonable

care "to all persons lawfully on the land." 402 A.2d at 851 (emphasis added). However,

the Court retained the classification of trespasser, i.e. one who is unlawfully on the

landowner's premises and whose presence, while theoretically foreseeable, is

unexpected. Id. at 851 n.5; see Bonney v. Canadian Nat'l Ry. Co., 800 F.2d 274, 275-76 (1st

S The plaintiff argues that Mr. Bennison might have purchased something from Airport Variety after he finished his business behind the store, and that this potentiality prohibits the court from ascertaining his status as a matter of law. Any such inference would be pure conjecture. There is no evidence that Mr. Bennison had any legitimate purpose on the premises that evening. To the contrary, the testimony indicates that he and Ms. Stewart intended to leave the premises and go to dinner after selling the drugs. Even if he had intended to engage in legitimate business following the drug sale, it would not alter the analysis. When Mr. Bennison was behind the store for illegal purposes wholly unrelated to the business purpose for which the defendant opened its premises to the public, he was beyond his bounds. See Collomy, 1998 ME 79,

9 Cir. 1986) (person who fell from railway trestle was a trespasser despite defendant's

knowledge that the public often used the bridge without permission). It is critical that

Mr. Bennison had no lawful purpose for being on Airport Variety's premises, rendering

him a trespasser.

"To entitle a trespasser to recover for an injury, he must do more than show

negligence. It must appear that a wanton or intentional injury was inflicted on him."

Cilley, 2009 ME 133,

35, 188 A. 708,712 (1936)) (quotations omitted). The plaintiff alleges that the defendant's

negligence consisted of its failure to install security cameras behind Airport Variety,

and possibly a failure to provide adequate lighting. Even if negligent, these failures

hardly rise to the level of wanton and willful conduct. Landowners are not generally

required to make their premises safe for trespassers, particularly if the so-called

dangerous condition is "open and obvious, and fully appreciated by the trespasser."

Bonney, 800 F.2d at 277 (citing Lewis v. Mains, 150 Me. 75, 76-77, 104 A.2d 432, 434

(1954); Stanley v. United States, 476 F.2d 606,609 (1st Cir. 1973)). Here, Mr. Bennison and

Ms. Stewart actively sought out the rear of the store to take advantage of the lack of

security cameras and relatively low visibility. Mr. Bennison's representative cannot now

complain that those measures were inadequate to protect him.

The plaintiff also contends that the defendant's employees negligently failed to

call the police after Joshua Stewart asked about security cameras and made a comment

about "business to take care of," or after they observed John Stewart and James Curit

loitering in the parking lot. The court first notes that the employees could not have

foreseen Mr. Bennison's presence behind the store or the risk Joshua Stewart posed to

him based on the behavior of the three men in the store. (See Supp. S.M.F.

Depo. at 58-59 (plaintiff's expert stating that Ms. Son could not have anticipated

10 violence).) The only foreseeable threat at that point was to the store's property or to the

employees themselves, and the employees properly told the men to leave.

When the men appeared to leave, the employees had no reason to call the police.

Even when Ms. Prevatt saw John Stewart and James Curit a short time later, the

evidence does not show they were engaging in behavior that would prompt a call to the

authorities. There is certainly nothing to indicate that she should have called the police

to make the premises safe for an unforeseeable trespasser like Mr. Bennison. Even more

so, when one considers that Mr. Bennison is the one who sought out John Stewart and

James Curit. However, even if the employees' failure to contact the police was

negligent, it did not breach the duty owed to a trespasser. The defendant and its

employees did not affirmatively create the danger to Mr. Bennison by instigating the

drug deal or the dispute, nor did they "commit any act that led to his initial injury."

Cilley, 2009 ME 133, err IS, 985 A.2d at 486. The defendant did not breach any duty it

owed Mr. Bennison as a trespasser.

The entry is:

The undisputed record shows that Mr. Bennison was a trespasser, and that the

defendant did not breach its duty to refrain from wanton, willful, or reckless conduct

against him. The defendant's motion for summary judgment in its favor is granted.

DATE:

ATTORNEY FOR PLAINTIFF: ATTORNEY FOR DEFENDANT: PETER CLIFFORD DAVID HERZER, ESQ. HODSDON & CLIFFORD NORMAN HANSON & DETROY 56 PORTLAND RD PO BOX 4600 KENNEBUNK ME 04043 PORTLAND ME 04112-4600