Lancaster v. Demo

• Court: Superior Court of Maine
• Decided: January 14, 2008
• Docket: SOMcv-07-04
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT SOMERSET, SSe DOCKET N9.1V-07-04 'I'l.j ;;. Krty:.s. G f\I\ - 00 '6 ROBERT LANCASTER, ) Plaintiff ) ) v. ) ORDER ON SUMMARY ) JUDGMENT MOTION JESSE DEMO, et al., ) Defendant ) JAN 3 u 2008

Pending before the Court, is Defendant's, Jesse Demo,

Motion for Summary Judgment pursuant to M.R. Civ. P. 56.

FACTUAL BACKGROUND

Unless otherwise stated the following facts are

undisputed. On or about October 13, 2006, Plaintiff,

Robert Lancaster was riding in a pickup truck driven by

Defendant, Michael Bowden. Bowden, who had been consuming

alcohol prior to diving, lost control of his pick-up truck.

The truck crashed and Plaintiff suffered serious personal

injuries.

Prior to the October 13, 2006, accident, Defendant

Bowden began drinking at 5:30 pm. Defendant's Statement of

Material Fact (DSMF) ~ 1. He later went to Defendant Jesse

Demo's family camp (Jesse Demo Camp) arriving around 8:30

pm and leaving around 11:00 p.m. Plaintiff's Opposition to

Defendant's Statement of Material Fact (PODSMF) ~ 9. While

at Jesse Demo Camp, Defendant Bowden drank several beers.

DSMF ~ 5; PODSMF ~ 9. All beer consumed by Bowden at Jesse

1 Demo Camp was beer he brought. DSMF ~ 10. Defendant Jesse

Demo did not offer or provide Bowden with any beer. Id.

Bowden's knowledge of and invitation to Jesse Demo

Camp on October 13, 2006 is in dispute. DSMF ~ 4; PODSMF ~

4. But it is undisputed that Bowden had not previously

been to the camp or specifically knew where it was located.

DSMF ~ 5.

The parties also agree that on the date in question,

Jesse Demo did not own the camp where this gathering took

place and that Jesse Demo was a minor. l DSMF ~~ 7-8.

PROCEDURAL BACKGROUND

Plaintiff filed a multiple count complaint against

multiple defendants, including Bowden, and Jesse Demo on

December 15, 2006. Two amended complaints were filed, the

most recent on April 5, 2007. The Counts against Defendant

Jesse Demo are Count 2, alleging liability under the Maine

Liquor Liability Act, 28-A M.R.S.A. § 2501 et seq. and

Count 4, alleging negligence as a result of (1) failing to

supervise guests at the camp and (2) making the camp

available to minors to consume alcohol.

Defendant Jesse Demo's initial motion for summary

judgment was filed on March 22, 2007. The matter was

stayed by agreement pending the completion of further

1 From Defendant's March 2007 statement of material facts.

2 discovery. Plaintiff filed its opposition to summary

judgment memo and additional statements of material facts

on April 10, 2007. Plaintiff filed an amended opposition

memo and opposing statement of material facts on July 26,

2007. On August 3, Defendant Jesse Demo filed an amended

memo in support of summary judgment, a second motion for

summary judgment and statement of material facts.

Plaintiff filed an opposition and to the motion, statements

and additional statements of material fact on August 20,

2007. Defendant filed a reply to the Plaintiff's memo and

statement of material facts on August 27, 2007.

DISCUSSION

A. Liquor Liability (Count 2)

Maine's Liquor Liability Statute provides damages for

Ubodily injury or death proximately caused by the

consumption of the liquor served by the server. U 28-A

M.R.S.A. § 2508. In addition, Ua server who negligently

serves liquor to a minor is liable for damages proximately

caused by that minor's consumption of the liquor. u 28-A

M.R.S.A. § 2506(1). UServer U is defined in the statute as

U a person who sells, gives or otherwise provides liquor to

an individual. u 28 M.R.S.A. § 2503(5).

The undisputed facts show that the only alcohol

consumed by Bowden while at Jesse Demo Camp on the night in

3 question was alcohol he brought himself. Therefore, under

the statute, Defendant Jesse Demo, was not Plaintiff's

"server" and therefore the inescapable conclusion is that

Defendant cannot be found liable under the Liquor Liability

Statute. Accordingly, as to Count 2, the Motion for

Summary Judgment filed by Defendant Jesse Demo must be and

is hereby GRANTED. Count 2 is hereby dismissed against

Jesse Demo.

B. Negligence

Count 4 alleges two theories of liability under the

heading of negligence. First is the allegation of failing

to supervise guests. Second is the allegation of making

the camp available to minors for alcohol consumption.

1. Duty Generally

Before reaching the theories of recovery under the

common law tort of negligence the burden is on the

Plaintiff to establish each of the four elements of

negligence. That is, there must be proof of (1) duty, (2)

breach, (3) causation, and (4) damages. Maddocks v.

Whitcomb, 2006 ME 47, 896 A.2d 265. "Whether one party

owes a duty of care to another is a matter of law."

Quadrino v. Bar Harbor Banking and Trust Co., 588 A.2d 303,

304 (Me. 1991). A duty is "an obligation to which the law

4 will give recognition and effect, to conform to a

particular manner of conduct toward another". Id.

2. Duty as a Social Host

The existence of Defendant Jesse Demo's duty as a

social host needs to be first explored as between himself

and the Plaintiff. The undisputed facts confirm that Jesse

Demo was a minor, and he did not serve alcohol to Defendant

Bowden or Plaintiff Lancaster. Also undisputed is the fact

that Plaintiff was never at Jesse Demo Camp on the night in

question. 2 DSMF' 12. He was not injured at or on Jesse

Demo Camp property, but while riding in the truck of

Defendant Bowden as they drove to Mercer, Maine. 3 POSMF ,

28.

"Under Maine Law, a possessor of land owes a duty to

use reasonable care to all persons lawfully on the

premises.,,4 Erickson v. Brennan, 513 A.2d 288, 289 (Me.

1986) (citations omitted). Duty is a question of whether a

defendant is under any obligation for the benefit of the

plaintiff. Trusiani v. Cumberland & York Distribs., Inc.,

538 A.2d 258, 261 (Me. 1988). Because Plaintiff Lancaster

was never at Jesse Demo Camp, the issue before this court

2 From Defendant's March 2007 Statement of Material Facts. 3 From Plaintiff's April 2007 Opposing and Additional statement of Material Facts. 4 Jesse Demo did not own Jesse Demo Camp on the date in question. He did have permission by the owners to have people at the camp without an adult present.

5 is whether Defendant Demo's duty extended to Plaintiff

Lancaster, an individual not on the premises.

Specifically, did Defendant Demo have an obligation to

control the drinking of those on his property for the

benefit of those not on his property?

Plaintiff has identified no such duty recognized in

Maine. Rather Plaintiff cites to the recent case of

Nichols v Progressive Northern Insurance Co., 2007 WI App

110, 730 N.W.2d 460. The facts of the Nichols case are

similar to this case in that the Niesens (parents) hosted a

party for a number of underage high school students who

they knew were drinking alcohol. Beth Carr was drinking at

the party, drove away intoxicated and collided with the

Nichols vehicle. The Wisconsin Court analyzed the issue of

whether a duty of care existed and concluded on social

policy grounds that "it was reasonably foreseeable that

permitting underage high school students to drink alcohol

on the Niesens' property would result in harm to some

persons or something." Nichols at ~ 23. That is, the

Court recognized a duty of ordinary care imposed on the

social hosts who knowingly provides an environment for

under age drinking of alcohol. In this decision, the

Wisconsin court used public policy factors recognized in

the state as a basis for recognizing a duty of care and

6 concluded that such a basis existed on which to base

recognition of a duty of care.

When the Law Court last spoke on this issue and the

existence of a common law duty, it was in the context of

the Liquor Law Liability Act and the caps on damages. See

Peters v. Saft, 597 A.2d 50 (Me. 1991). In its decision,

the Court gave some insight into the direction of its

thinking. The concurring opinion of Justices Glassman and

Roberts noted that historically in Maine common law, it was

not a tort to give or sell alcohol to another. Peters, 597

A.2d at 55. The rationale for finding no tort was that it

was the consumption of alcohol, not the providing of it,

that could proximately cause injuries. Id.; Currier v.

McKee, 99 Me. 364, 366 (Me. 1904). The Peters Court went

on to note that the enactment of the Liquor Liability Act

created a new cause of action by providing a right and

remedy in contravention of the common law. Peters, 597

A.2d at 55.

It does not appear to this Court that the law in Maine

recognizes the existence of a duty as recently recognized

by the Wisconsin Court in Nichols. In decided whether to

recognize a new duty, this Court considered the following:

(1) the remoteness of the injury in time and place; (2) the

burden on the alleged minor tortfeasor; (3) the implication

7 of liability on owners who were not present at the

gathering or did not know or have reason to know of the

gathering or the use of alcohol at the gathering; (3) the

existence of a rationale limit to imposing a duty and

potential liability; (4) the voluntary intoxication by the

guest who caused injuries as being out of proportion to the

responsibility of the minor social host; (5) along with the

many factors identified by the Wisconsin Court in Nichols.

Additionally, this Court notes that the Law Court has

declined to create new duties in areas where the

Legislature has acted. See Gafner v. Down East Community

Hospital, 1999 ME 103, , 42 735 A.2d 969, 979, stating

"[before the expansion of tort liability into an area that

has been significantly controlled by the Legislature, we

should allow the Legislature to address the policy

considerations and determine whether imposing such a duty

constitutes wise public policy." In this instance, the

legislature has acted to impose duties on the server of

alcohol resulting in damages to third parties, but has not

created a duty beyond that situation. In its analysis of

Count 2 of this complaint, this Court has not found the

Liquor Liability Act applicable to these facts. The Court

has not found the existence of a duty under Maine law as

applied by the Wisconsin Court in Nichols.

8 For the foregoing reasons, the Court declines to

recognize a new duty on a minor social host. Absent a

cognizable duty, the Court concludes as a matter of law,

that Defendant Jesse Demo cannot be liable in negligence.

Therefore the Motion on behalf on Defendant Jesse Demo is

GRANTED. Count 4 is hereby dismissed.

Although the Court has dismissed the motion because

Defendant Jesse Demo did not owe a duty to Plaintiff, the

Court thinks it important to point out the narrowness or

non-existence of Plaintiff's theories of liability.

3. Negligent Supervision

The Law Court has only recently and reluctantly

acknowledged the tort of negligent supervision in Maine and

did so in the context of the employer/employee relationship

when a priest abused a minor in the course of the priest's

employment. See Fortin v. Roman Catholic Bishop of

portland, 2005 ME 57, 871 A.2d 1208. The Law Court in

Fortin, acknowledged earlier speculation as to when and if

Maine would adopt the tort of negligent supervision. In

regards to recognizing this tort in Maine, Judge Woodcock

of the Federal District Court of Maine is reported to have

noted "(t)he best [that one] can say is the Law Court has

implied it will rule on whether the tort [of negligent

9 supervision] exists if the proper set of facts comes before

it." Fortin, 871 A.2d at 1216.

No Maine case law has been presented that suggests

that the Law Court is prepared to impose liability for

negligent supervision to situations other that those

involving actions in an employment setting. Accordingly,

imposition of liability, here, on Jesse Demo, would not be

reasonable based on the facts. The expansion of the

applicability of the tort of negligent supervision, should

it take place, must come from the Law Court. Therefore,

the Court declines to recognize a claim by a third party

against a social host for negligent supervision, whether or

not the host is a minor.

4. Providing a Place to Consume Alcohol

The Plaintiff has provided no Maine precedents where

one who provides a place to consume alcohol was found to be

liable to a third party because someone on the property

consumed his or her own alcohol and injured the third

party. The court declines to recognize such a claim here.

CONCLUSION

This Court is not prepared to impose a new duty

on social hosts to control those who injure another not on

the premises. Without a duty, Defendant Jesse Demo cannot

be held liable under the theory of negligent supervision by

10 a social host, or for providing an environment for minors

to consume alcohol.

The entry shall be: The Motion for Summary Judgment on

Behalf of Jesse Demo is hereby GRANTED. Counts 2 and 4 are

dismissed.

At the direction of the Court, this Order shall be

incorporated into the docket by reference. Rule 79(a).

DATE: January 14, 2008