STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. CV-19-296 / ) JEFFREY PAQUETTE ) ) Plaintiff ) ) V. ) ORDER ON DEFENDANT'S MOTION ) FOR SUMMARY JUDGMENT SCARBOROUGH BBQ, LLC D/B/A ) FAMOUS DAVE'S ) ) Defendant ) ) )
Before the Court is Defendant Scarborough BBQ, LLC d/b/a Famous Dave's Motion for
Sunnuary Judgment. For the reasons set forth herein, the Motion is GRANTED IN PART and
DENIED IN PART.
FACTUAL BACKGROUND
This case arises out of an electrocution which allegedly occurred on September 12, 2018,
at the Famous Dave's restaurant in Scarborough, Maine. Plaintiff Jeffrey Paquette ("Paquette") is
a resident of Waterboro, Maine, who on September 12, 2018, was at the Famous Dave's
restaurant. (Complaint ,i,i 1, 4.) Defendant Scarborough BBQ, LLC d/b/a Famous Dave's
("Famous Dave's") is the corporation that owns and operates the Famous Dave's restaurant
located at I Cabe la Boulevard in Scarborough, Maine. ( Complaint ,i,i 2, 3.) The following
recitation of facts was derived from both the Defendant's Statement of Material Facts and the
Plaintiffs Statement of Material Facts, as well as the responses to both Statements.
Qualifications and denials are noted where relevant.
1 On September 12, 2018, Paquette was eating at Famous Dave's with his wife and
daughter. (Plaintiffs Statement of Material Facts ("Pl. S.M.F.") 1 I.) He walked into the
restaurant's bathroom and began using the urinal. (Pl. S.M.F. 14.) He felt his feet begin to slide
on the floor and placed his right hand against the wall to brace himself. (Pl. S.M.F. 14.) Paquette
then claims to have felt a shock, at which point he stepped back and looked at the wall. (Pl.
S.M.F. 111 4, 5, 8.) Paquette asserts that he saw an open electrical box with protruding wires. (Pl.
S.M.F. 18.) He then returned to his table and told his wife about the incident. (Pl. S.M.F. 1 12.)
Paquette next informed a server of the incident. (Pl. S.M.F. 1 12.) The server went to get
the assistant manager, who came to speak with Paquette at his table. (Defendant's Statement of
Material Facts ("Def. S.M.F.") 130.) The assistant manager then went to inspect the bathroom,
where she found that the plate covering the electrical box had been moved and three screws to
the plate were missing. (Pl. S.M.F. 1 40). The assistant manager pushed the wires back into the
box and secured the cover with new screws. (Def. S.M.F. 131). She was not electrocuted while
doing so. (Def. S.M.F. 131).
After the incident, Paquette claims that his food tasted like metal, so he decided to leave.
(Pl. S.M.F. 115.) He further claims that he felt sick on his way home and that, upon exiting his
parking spot, he drove 100 feet or less before vomiting. (Pl. S.M.F. 1 23.) Paquette called his
primary care physician the following morning. (Pl. S.M.F. 1 16.) Paquette alleges that the
electrocution incident at Famous Dave's has caused a range of health issues, including constant
tingling, numbness, and lack of sensitivity in his right hand, a loss of strength in his right hand
and arm, and sharp muscle pains, burning sensations, tingling sensations, and muscle spasms on
the right side of his body. (Pl. S.M.F. 124.)
2 Famous Dave's denies that Paquette was electrocuted. (Defendant's Response to
Plaintiffs Statement of Material Facts ("Def. R.") ,r 12.) Famous Dave's denies that any of the
symptoms Paquette claims to be experiencing are associated with this incident. (Def. R. ,r 24.)
Instead, Famous Dave's asse1is that all of Paquette's injuries may be attributed to his long
history of shoulder pain. (Def. R. ,r 24.)
Paquette filed the instant two count complaint in Cumberland County Superior Court on
August 1st, 2019. Counts I and II assert negligence against Famous Dave's. On February 28th,
2022, Famous Dave's filed the instant Summary Judgment Motion, and on April 29th, 2022,
Paquette filed his opposition. On May 12th, 2022, Famous Dave's filed their reply. Famous
Dave's Summary Judgment Motion, now fully briefed, awaits this Court's decision.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper when review of the parties' statements of material fact and
the record evidence to which they refer, considered in the light most favorable to the nonrnoving
party, indicates that there is no genuine issue of material fact in dispute and the moving party is
entitled to judgment as a matter oflaw. M.R. Civ. P. 56(c); Remmes v. The Mark Travel Corp.,
2015 ME 63, ,r 18, 116 A.3d 466. A fact is material if it has the capacity to affect the outcome of
the case. Lewis v. Concord General Mut. Ins. Co., 2014 ME 34, ,r 10, 87 A.3d 732. An issue is
genuine if the factfinder must choose between competing versions of the truth. Id. "Even when
one party's version of the facts appears more credible and persuasive to the court, any genuine
factual dispute must be resolved through fact-finding, regardless of the nonrnoving party's
likelihood of success." Id. Summary judgment is not a substitute for a trial. Arrow Fastener Co.
v. Wrabacon, Inc., 2007 ME 34, ,r 18,917 A.2d 123.
DISCUSSION
3 In their Motion, Famous Dave's seeks summaty judgment on Counts I and II, both of
which claim negligence on their part. Count I alleges negligent maintenance of the premises.
Count II alleges negligent failure to provide safe premises. In the alternative to a grant of
summaty judgment on Paquette' s negligence claims, Famous Dave's seeks judgment as to
Paquette's claims for lost wages and lost earning capacity. Paquette's two Counts pleading
negligence are addressed together first, followed by the lost wages dispute.
I. Negligence
To survive a defendant's motion for summary judgment on a negligence claim, a plaintiff
"must establish a prima facie case for each of the four elements of negligence: duty, breach,
causation, and damages." Quirion v. Geroux, 2008 ME 41, 19,942 A.2d 670 (quoting Maddocks
v. Whitcomb, 2006 ME 47, 110, 896 A.2d 265).
A. Duty
The existence of a duty is a question of law which the court may resolve at summaiy
judgment. Mastriano v. Blyer, 2001 ME 134, 111, 779 A.2d 951. A duty is "an obligation, to
which the law will give recognition and effect, to conform to a particular manner of conduct
toward another." Quadrino v. Bar Harbor Banking & Trust Co., 588 A.2d 303,304 (Me. 1991)
(quoting Howe v. Stubbs, 570 A.2d 1203, 1203 (Me. 1990)).
The owner or operator of a restaurant owes a duty of care to its patrons, who are
considered business invitees. Seiders v. Testa, 464 A.2d 933, 935 (Me. 1983). This is an
affirmative duty to use ordinary care in ensuring that "the premises are reasonably safe for
invitees in the light of the totality of the circumstances." Isaacson v. Husson Coll., 297 A.2d 98,
103 (Me. 1972). Whether a particular defendant has exercised reasonable care is a determination
ordinarily left to the jury. Seiders, 464 A.2d at 93 5.
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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. CV-19-296 / ) JEFFREY PAQUETTE ) ) Plaintiff ) ) V. ) ORDER ON DEFENDANT'S MOTION ) FOR SUMMARY JUDGMENT SCARBOROUGH BBQ, LLC D/B/A ) FAMOUS DAVE'S ) ) Defendant ) ) )
Before the Court is Defendant Scarborough BBQ, LLC d/b/a Famous Dave's Motion for
Sunnuary Judgment. For the reasons set forth herein, the Motion is GRANTED IN PART and
DENIED IN PART.
FACTUAL BACKGROUND
This case arises out of an electrocution which allegedly occurred on September 12, 2018,
at the Famous Dave's restaurant in Scarborough, Maine. Plaintiff Jeffrey Paquette ("Paquette") is
a resident of Waterboro, Maine, who on September 12, 2018, was at the Famous Dave's
restaurant. (Complaint ,i,i 1, 4.) Defendant Scarborough BBQ, LLC d/b/a Famous Dave's
("Famous Dave's") is the corporation that owns and operates the Famous Dave's restaurant
located at I Cabe la Boulevard in Scarborough, Maine. ( Complaint ,i,i 2, 3.) The following
recitation of facts was derived from both the Defendant's Statement of Material Facts and the
Plaintiffs Statement of Material Facts, as well as the responses to both Statements.
Qualifications and denials are noted where relevant.
1 On September 12, 2018, Paquette was eating at Famous Dave's with his wife and
daughter. (Plaintiffs Statement of Material Facts ("Pl. S.M.F.") 1 I.) He walked into the
restaurant's bathroom and began using the urinal. (Pl. S.M.F. 14.) He felt his feet begin to slide
on the floor and placed his right hand against the wall to brace himself. (Pl. S.M.F. 14.) Paquette
then claims to have felt a shock, at which point he stepped back and looked at the wall. (Pl.
S.M.F. 111 4, 5, 8.) Paquette asserts that he saw an open electrical box with protruding wires. (Pl.
S.M.F. 18.) He then returned to his table and told his wife about the incident. (Pl. S.M.F. 1 12.)
Paquette next informed a server of the incident. (Pl. S.M.F. 1 12.) The server went to get
the assistant manager, who came to speak with Paquette at his table. (Defendant's Statement of
Material Facts ("Def. S.M.F.") 130.) The assistant manager then went to inspect the bathroom,
where she found that the plate covering the electrical box had been moved and three screws to
the plate were missing. (Pl. S.M.F. 1 40). The assistant manager pushed the wires back into the
box and secured the cover with new screws. (Def. S.M.F. 131). She was not electrocuted while
doing so. (Def. S.M.F. 131).
After the incident, Paquette claims that his food tasted like metal, so he decided to leave.
(Pl. S.M.F. 115.) He further claims that he felt sick on his way home and that, upon exiting his
parking spot, he drove 100 feet or less before vomiting. (Pl. S.M.F. 1 23.) Paquette called his
primary care physician the following morning. (Pl. S.M.F. 1 16.) Paquette alleges that the
electrocution incident at Famous Dave's has caused a range of health issues, including constant
tingling, numbness, and lack of sensitivity in his right hand, a loss of strength in his right hand
and arm, and sharp muscle pains, burning sensations, tingling sensations, and muscle spasms on
the right side of his body. (Pl. S.M.F. 124.)
2 Famous Dave's denies that Paquette was electrocuted. (Defendant's Response to
Plaintiffs Statement of Material Facts ("Def. R.") ,r 12.) Famous Dave's denies that any of the
symptoms Paquette claims to be experiencing are associated with this incident. (Def. R. ,r 24.)
Instead, Famous Dave's asse1is that all of Paquette's injuries may be attributed to his long
history of shoulder pain. (Def. R. ,r 24.)
Paquette filed the instant two count complaint in Cumberland County Superior Court on
August 1st, 2019. Counts I and II assert negligence against Famous Dave's. On February 28th,
2022, Famous Dave's filed the instant Summary Judgment Motion, and on April 29th, 2022,
Paquette filed his opposition. On May 12th, 2022, Famous Dave's filed their reply. Famous
Dave's Summary Judgment Motion, now fully briefed, awaits this Court's decision.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper when review of the parties' statements of material fact and
the record evidence to which they refer, considered in the light most favorable to the nonrnoving
party, indicates that there is no genuine issue of material fact in dispute and the moving party is
entitled to judgment as a matter oflaw. M.R. Civ. P. 56(c); Remmes v. The Mark Travel Corp.,
2015 ME 63, ,r 18, 116 A.3d 466. A fact is material if it has the capacity to affect the outcome of
the case. Lewis v. Concord General Mut. Ins. Co., 2014 ME 34, ,r 10, 87 A.3d 732. An issue is
genuine if the factfinder must choose between competing versions of the truth. Id. "Even when
one party's version of the facts appears more credible and persuasive to the court, any genuine
factual dispute must be resolved through fact-finding, regardless of the nonrnoving party's
likelihood of success." Id. Summary judgment is not a substitute for a trial. Arrow Fastener Co.
v. Wrabacon, Inc., 2007 ME 34, ,r 18,917 A.2d 123.
DISCUSSION
3 In their Motion, Famous Dave's seeks summaty judgment on Counts I and II, both of
which claim negligence on their part. Count I alleges negligent maintenance of the premises.
Count II alleges negligent failure to provide safe premises. In the alternative to a grant of
summaty judgment on Paquette' s negligence claims, Famous Dave's seeks judgment as to
Paquette's claims for lost wages and lost earning capacity. Paquette's two Counts pleading
negligence are addressed together first, followed by the lost wages dispute.
I. Negligence
To survive a defendant's motion for summary judgment on a negligence claim, a plaintiff
"must establish a prima facie case for each of the four elements of negligence: duty, breach,
causation, and damages." Quirion v. Geroux, 2008 ME 41, 19,942 A.2d 670 (quoting Maddocks
v. Whitcomb, 2006 ME 47, 110, 896 A.2d 265).
A. Duty
The existence of a duty is a question of law which the court may resolve at summaiy
judgment. Mastriano v. Blyer, 2001 ME 134, 111, 779 A.2d 951. A duty is "an obligation, to
which the law will give recognition and effect, to conform to a particular manner of conduct
toward another." Quadrino v. Bar Harbor Banking & Trust Co., 588 A.2d 303,304 (Me. 1991)
(quoting Howe v. Stubbs, 570 A.2d 1203, 1203 (Me. 1990)).
The owner or operator of a restaurant owes a duty of care to its patrons, who are
considered business invitees. Seiders v. Testa, 464 A.2d 933, 935 (Me. 1983). This is an
affirmative duty to use ordinary care in ensuring that "the premises are reasonably safe for
invitees in the light of the totality of the circumstances." Isaacson v. Husson Coll., 297 A.2d 98,
103 (Me. 1972). Whether a particular defendant has exercised reasonable care is a determination
ordinarily left to the jury. Seiders, 464 A.2d at 93 5.
4 In this case, the parties do not dispute that Famous Dave's owed a duty to Paquette as an
invitee. Instead, the parties are in dispute as to whether Famous Dave's met its duty. As stated
above, that determination is ordinarily left to the jury. This Court avoids such fact specific
determinations. As a matter oflaw, Famous Dave's, owner and operator of the restaurant in
question, had an affirmative duty to use ordinary care in ensuring reasonably safe premises for
Paquette.
B. Breach, Causation, Damages
The three remaining elements of negligence are fact intensive in nature. As such,
summary judgment is proper only if there are no genuine issues of material fact presented by the
record. Here, the record generates genuine issues of material fact as to each.
In terms of breach, the record presents factual issues as to whether the men's restroom
was safe when Paquette entered it and whether Famous Dave's maintenance of the men's
restroom was reasonable. There are properly supported allegations that, at some time on
September 12, 2018, uncapped wires were protruding from an open electrical box above a urinal
in the men's restroom. How long the electrical box was in that condition and how it came to be
in that condition are disputed. The dangerousness of the condition is also disputed. Famous
Dave's claims that the electrical box in question had been abandoned and was not receiving
power, and therefore, the wires Paquette touched were incapable of producing a shock. Paquette
provides expert testimony that the wires could have become energized another way. Finally,
although there is evidence that the staff entered the bathrooms hourly to replace the toilet paper
and check the mirrors and floors, it is not clear if or how often the staff were instructed to inspect
the restrooms for other safety issues.
5 Genuine issues of fact as to causation and damages are also present in the record.
Regarding causation, the parties contest whether touching the exposed wire caused Paquette's
injuries. As stated above, Famous Dave's argues that Paquette's symptoms may all be attributed
to injuries he had sustained prior to this incident. Paquette claims that his symptoms are a
product of this incident, and he presents the testimony of a treating physician who attributes
Paquette's symptoms to electrical injury. Regarding damages, although Paquette will no longer
be pursuing lost wages, as discussed below, there remains a dispute over the extent of his other
damages.
Because the record generates genuine issues of material fact as to breach, causation and
damages, summary judgment may not be entered in favor of Defendant Famous Dave's.
II. Lost Wages and Earning Capacity
In its Motion, Famous Dave's seeks judgment as to Paquette's claims for lost wages and
lost earning capacity. In his opposition, Paquette agrees to summary judgment on this issue.
Paquette states that he will no longer pursue a claim for lost wages or lost earning capacity.
Summary judgment will therefore be entered in favor of Defendant Famous Dave's as to that
issue.
6 Entry is:
Defendant's Motion for Summary Judgment is Denied as to Counts I and II. Defendant's
Motion for Summary Judgment is Granted as to the issue of lost wages and earning capacity. The
clerk is directed to incorporate this order into the docket by reference pursuant to M.R. Civ. P .
.79(a).
Dated: John O'Neil Jr. Justice, Maine Superior Court