Little v. Perry

Maine Superior

Little v. Perry

DecidedAugust 7, 2002

DocketANDcv-00-101

StatusUnpublished

This text of Little v. Perry (Little v. Perry) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Little v. Perry, (Me. Super. Ct. 2002).

Pincite

Opinion

STATE OF MAINE REVE ae ae SUPERIOR COURT Androscoggin, ss. cosa 4 noes Civil Action poo UE Lous Docket No. CV-00-101 Try By ae

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MICHAEL LITTLE, Plaintiff DECISION AND ORDER 1. DEFENDANTS’ MOTION FOR JUDGEMENT ON THE PLEADINGS v. 2. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT JOSEPH PERRY, 3. PLAINTIFF’S MOTION TO AMEND LORETTA PERRY, MATTHEW PERRY, MILES HARTFORD,! and ADAM MORRILL,2 CONN L aon Defendants AUG 20 2002

I. BACKGROUND

This is a multiple count complaint against the defendants arising out of claims for personal injury suffered by Michael Little August 24, 1998. He alleges that he was assaulted by Matthew Perry, Miles Hartford, and Adam Morrill, who had consumed alcohol. The assault is alleged to have occurred on property owned by Joseph and Loretta Perry, Matthew’s grandparents.

Matthew Perry seeks a judgment on the pleadings pursuant to M.R.Civ.P. 12(b)(6), and summary judgment as to Count IV (negligent and reckless

consumption of alcohol), and summary judgment on Count V (assault upon

plaintiff).

1. Defendant Miles Hartford has been previously defaulted.

2. Defendant adam Morrill had not answered the complaint, but plaintiff has not sought a default. Joseph and Loretta Perry seek summary judgment on Count II (recklessness and negligence) on the grounds that they owed no duty of oversight or supervision

of Matthew while on camp premises in Livermore.

Il. DEFENDANTS’ MOTIONS A. Motion for Judgment on Pleadings by Matthew Perry, Count IV.

This count is based on the defendants’ conduct considering their consumption of alcohol. Maine’s Liquor Liability Act (MLLA), 28-A M.R.S.A. § 2503, et seq., is the exclusive remedy for reckless or intentional service or consumption of alcohol which is alleged to be the cause of injury to another. 28-A M.R.S.A. § 2511.

A motion pursuant to M.R. CIV. P. 12(c) tests the sufficiency of the complaint. Maine Bonding v. Douglas Dynamics, 594 A.2d 1079, 1080 n.1 (Me. 1991). The court must consider whether the pleadings set forth a set of facts upon which a plaintiff may be entitled to relief. Camps Newfound/Owatonna v. Harrison, 1998 ME 20. 705 A.2d 1109.

Plaintiff did not allege a violation of MLLA in Count IV of the complaint and

to Rule 12(c).3

3. The plaintiff has moved to amend the count to assert a claim under the MLLA statute which is discussed supra. B. Motion for Summary Judgment by Matthew Perry, Count V.

It is uncontested that Matthew Perry did not actually strike or touch plaintiff, however, he may still be found to be liable for his actions in threatening plaintiff and for not taking steps to restrain his friends before it was too late.

Recently, in Curtis v. Porter, 2001 ME 158, 784 A.2d 18, 2001 ME 158, an intentional infliction of emotional distress case, but somewhat similar to the case currently before the court, the defendant's boyfriend assaulted and robbed a pizza deliveryman. The defendant did not take part in the actual assault, but helped create the circumstances that preceded it (the call was made from her home, and the delivery was arranged at a vacant residence belonging to one of the defendant's relatives).

In finding that the defendant could be held liable for her conduct, the Law court stated,

A person acts recklessly if she knows or should know that her conduct

creates an unreasonable risk of harm to another person and the

unreasonableness of her actions exceeds negligence. RESTATEMENT

(SECOND) OF ToRTS § 500 (1965). Although the Superior Court correctly

concluded that [plaintiff] had no separate duty to take action to protect

[plaintiff] from harm created by others, [defendant] may be responsible

for her own affirmative conduct in planning and supporting the

robbery. A person involved in planning a nighttime theft from a

delivery person knows or should know that the theft may result in

serious emotional harm to that delivery person.

Id. J 13, 784 A.2d at 23. Similarly, Matthew Perry may be held responsible for his

own conduct in threatening the plaintiff. There is a valid question whether he

should have reasonably known that his threats and behavior could result in harm

to plaintiff. Cc. Motion for Summary Judgment by Joseph and Loretta Perry, Count II

“A defendant is entitled to judgment as a matter of law on a negligence claim if that defendant owes no duty to plaintiff.” Budkzo v. One City Center Assoc., 2001 ME 37, { 10, 767 A.2d 310, 313 (citing Trusiani v. Cumberland York Distribs., Inc., 538 A.2d 258, 261-63 (Me. 1988). “Whether one party owes a duty of care to another presents a question of law.” Id. (citing Decker v. New. Eng. Pub. Warehouse, Inc., 2000 ME 76, {] 7, 749 A.2d 762, 765. “Whether a duty was breached and whether a defendant’s conduct was reasonable under the circumstances are questions of fact for the jury.” Id. (citing Lewis v. Knowlton, 1997 ME 12, J 10, 688 A.2d 912, 914).

Based on the record, it appears to the court that the Perrys were at least aware of the risk that Matthew and his friends would be drinking. They had established a “no drinking” rule, which Matthew was specifically reminded of that day, and the Perrys had previously given their home telephone number to the neighbors to call if there was any drinking or trouble at the camp.

Further, the Perrys plainly appear to have had the ability to control the behavior of their grandson. (Matthew Perry deposition, 11/17/00, pg. 16, stating that if he broke the rules, “any one of the neighbors who thought that I was doing something that I wasn't supposed to would call my grandparents . . . [and] I would never be allowed to go up there again.”).

The Perrys at the least assumed a duty to control the conduct of their grandson by asking the neighbors to call if there was any drinking or problems at the camp.

Whether that duty was breached is a question of material fact for the jury. Ill. PLAINTIFF’S MOTION TO AMEND

Plaintiff has filed a Motion to Amend the Complaint to add Count VI against Matthew Perry pursuant to the Maine Liquor Liability Act. 28-A M.R.S.A. § 2514 states “any action brought under [the MLLA] alleging negligent or reckless conduct must be brought within 2 years after the cause of action accrues.” This incident is alleged to have occurred August 24, 1998. the plaintiff argues that he was unaware that matthew Perry was the “server” and therefore liable under the MLLA until Matthew’s deposition on November 17, 2001, well past the August 23, 2000 deadline.

Even if the statute of limitations had not expired, the MLLA still requires that the plaintiff file an Notice of Claim within 180 days of the server’s conduct creating the liability. The 180 day period may be waived or extended upon a showing of “good cause.” 28-A M.R.S.A. § 2513.

“Good cause” exists only when the plaintiff was unable to file a claim or was “meaningfully prevented from learning the information.” Beaulieu v. Aube Corp., 2002 ME 79, TJ 22, 23. No such showing has been made here.4

IV. ORDERS The clerk shall make the following entries as to the Orders of the court:

1. Defendant Matthew Perry’s Motion for Judgment on the pleadings is granted as to Count IV.

4 The Beaulieu case was pending before the Law Court and was decided after oral argument in this case. 2. Defendant Matthew Perry’s Motion for Summary Judgment on Count V is denied.

3. Defendants Joseph and Loretta Perry’s Motion for Summary Judgment on Count II is denied.

4.

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