Tolliver v. Department of Transp.
| Decision Date | 13 May 2008 |
| Docket Number | Docket: Cum-06-687. |
| Citation | 2008 ME 83,948 A.2d 1223 |
| Parties | Robert L. TOLLIVER Jr., as sole guardian and conservator of Lucas E. Tolliver v. DEPARTMENT OF TRANSPORTATION. |
| Court | Maine Supreme Court |
James M. Bowie, Esq. (orally), Lisa Fitzgibbon Bendetson, Esq., Thompson & Bowie, LLP, Portland, ME, for the Maine Department of Transportation.
Peter J. Rubin, Esq., Daniel J. Mitchell, Esq. (orally), Todd S. Holbrook, Esq., Bernstein Shur, Portland, ME, for Robert S. Tolliver.
Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.
[¶ 1] The Maine Department of Transportation (MDOT) appeals from a judgment entered in the Superior Court (Cumberland County, Delahanty, J.) after a jury verdict finding it liable for negligence. MDOT contends that the court erred in (1) finding that it was not immune from suit under the Maine Tort Claims Act, 14 M.R.S. §§ 8101-8118 (2007),1 and (2) allowing certain expert testimony on the issue of causation. Robert L. Tolliver cross-appeals, contending that the court erred in reducing the damage award against MDOT to $400,000, the maximum amount permitted by 14 M.R.S. § 8105. We vacate the judgment.
[¶ 2] In the early morning of June 20, 2004, Caroline M. Knight was driving west on Route 302 in Casco when she struck Lucas E. Tolliver, a pedestrian. The portion of Route 302 where the accident occurred was under construction by MDOT and had recently been repaved. The only markings on the road were yellow reflective markers delineating the center of the road; there were no white edge lines separating the travel lanes from the breakdown lanes. After hitting Lucas, Knight drove away and did not call 911 or notify any other emergency service.
[¶ 3] Lucas sustained serious bodily injuries as a result of the accident, including brain injury. Thereafter, Robert L. Tolliver, as sole guardian and conservator for his son Lucas, filed a complaint alleging negligence on the part of MDOT and Knight. Tolliver's claim against MDOT alleged that MDOT had been negligent in failing to stripe Route 302 in a timely fashion, and in failing to maintain safe conditions on Route 302 through the use of temporary edge line markings.
[¶ 4] Following discovery, MDOT filed a motion for a summary judgment on the grounds of immunity.2 In its statement of material facts, MDOT stated that the scheduling of striping was within the discretion of its road crew supervisors. As such, MDOT argued that it was entitled to discretionary function immunity on Tolliver's claim that MDOT failed to timely stripe Route 302. The court denied the motion, finding that the acts of the MDOT employee responsible for striping Route 302 were "ministerial as opposed to discretionary."
[¶ 5] During further discovery, MDOT objected to Tolliver's designation of two expert witnesses — Kenneth Burrill and Laurent Lavigne — on the ground that their deposition testimony improperly addressed the causal relationship between the accident and the lack of an edge line. Ultimately, the court ruled that Lavigne would be permitted to testify as to causation and the expectations of MDOT on road construction projects, while Burrill would be permitted to testify as to MDOT guidelines and standard operating procedures.
[¶ 6] A jury trial was held over six days in October 2006. The parties presented the testimony of numerous witnesses addressing the circumstances and investigation of the accident, the schedule followed by MDOT employees with regard to the repaying of Route 302 in 2004, general operating procedures of MDOT, and the purposes of a white edge line on a road. Tolliver sought to establish that Lucas was walking in the breakdown lane at the time of the accident and that Knight's vehicle struck him from behind. Knight's and MDOT's theory was that Lucas had been walking in the travel lane and, as Knight attempted to safely pass him on the right by traveling in the breakdown lane, Lucas pivoted to his right and walked into the path of the moving vehicle.
[¶ 7] MDOT moved for judgment as a matter of law at the close of Tolliver's case, which the court denied. MDOT thereafter called witnesses to testify to Lucas's activities and level of intoxication on the night of the accident, including expert testimony that, based on blood tests taken at the hospital, Lucas's blood-alcohol level was around .24% at the time of the accident.3 MDOT also called an expert to testify to MDOT's policies with regard to road striping. At the conclusion of all the evidence, MDOT again moved for judgment as a matter of law, on the issue of proximate cause. This motion was also denied.
[¶ 8] The jury unanimously found that MDOT, Knight, and Lucas were all negligent in causing Lucas's injuries, and that Lucas's negligence was not equal to or greater than the combined negligence of MDOT and Knight, or to the negligence of either of them individually. The jury further found that Lucas's total damages were $3,310,000, but that this amount should be reduced to $2,925,000 in light of his own negligence. Finally, the jury allocated the fault for Lucas's damages as 35% to MDOT and 65% to Knight. The court thereafter entered the verdict as a final judgment. The court later amended its judgment on MDOT's motion, limiting MDOT's liability to $400,000 of the total damages awarded pursuant to the damages cap established by 14 M.R.S. § 8105.4 This appeal and cross-appeal followed.
[¶ 9] MDOT challenges the court's (A) finding that MDOT was not entitled to discretionary function immunity under the Maine Tort Claims Act (MTCA), and (B) admission of expert witness testimony as it relates to the issue of causation. The MTCA provides that all government entities are "immune from suit on any and all tort claims seeking recovery of damages," subject only to specific exceptions expressed in the Act. 14 M.R.S. § 8103(1). Therefore, we first determine whether MDOT was immune from suit in this case because an affirmative finding would require us to vacate the judgment without inquiry into the expert witness issue.
[¶ 10] MDOT contends that the scheduling of road striping and other matters relating to the maintenance of highways is discretionary by statute. MDOT also contends that the scheduling of striping activities is a matter of policy and discretion and therefore falls within our interpretation of discretionary function immunity.5
[¶ 11] "The proper interpretation of a statute is a question of law that we review de novo." Rodriguez v. Town of Moose River, 2007 ME 68, ¶ 29, 922 A.2d 484, 492. In interpreting a statute, we look first to the plain language of the statute to discern the Legislature's intent. See Gove v. Carter, 2001 ME 126, ¶ 13, 775 A.2d 368, 374. "If the statute's meaning is clear, we do not look beyond its words, unless the result is illogical or absurd." Rodriguez, 2007 ME 68, ¶ 29, 922 A.2d at 492 (quotation marks omitted).
[¶ 12] The MTCA provides that "all governmental entities shall be immune from suit on any and all tort claims seeking recovery of damages," except as otherwise provided by statute. 14 M.R.S. § 8103(1). Immunity is removed under the Act for claims arising from a governmental entity's performance of "[r]oad construction, street cleaning or repair." 14 M.R.S. § 8104-A(4). This exception to immunity provides:
A governmental entity is liable for its negligent acts or omissions arising out of and occurring during the performance of construction, street cleaning or repair operations on any highway, town way, sidewalk, parking area, causeway, bridge, airport runway or taxiway, including appurtenances necessary for the control of those ways including, but not limited to, street signs, traffic lights, parking meters and guardrails. A governmental entity is not liable for any defect, lack of repair or lack of sufficient railing in any highway, town way, sidewalk, parking area, causeway, bridge, airport runway or taxiway or in any appurtenance thereto.
[¶ 13] This exception to immunity, however, is itself expressly subject to further exceptions. Section 8104-B provides:
Notwithstanding section 8104-A, a governmental entity is not liable for any claim which results from:
. . . .
3. Performing discretionary function. Performing or failing to perform a discretionary function or duty, whether or not the discretion is abused and whether or not any statute, charter, ordinance, order, resolution or policy under which the discretionary function or duty is performed is valid or invalid....
14 M.R.S. § 8104-B(3) (emphasis added).
[¶ 14] We considered the interplay between sections 8104-A and 8104-B in Norton v. Hall, 2003 ME 118, 834 A.2d 928. In Norton, parents brought claims of negligence and wrongful death against a county sheriff's department and an individual police officer after their two sons were struck and killed by a police vehicle responding to an emergency call. Id. ¶¶ 2-4, 834 A.2d at 930. The parents claimed that the department was not immune from suit pursuant to section 8104-A(1)(A), which provides that "[a] governmental entity is liable for its negligent acts or omissions in its ownership, maintenance or use of any ... [m]otor vehicle." Id. ¶ 8, 834 A.2d at 931; 14 M.R.S. § 8104-A(1)(A). We disagreed, stating that "section 8104-B(3) provides a governmental entity with discretionary function immunity despite section 8104-A" Norton, 2003 ME 118, ¶ 11, 834 A.2d at 932 (emphasis added); see also Carroll v. City of Portland, 1999 ME 131, ¶ 6 n. 3, 736 A.2d 279, 282 (...
To continue reading
Request your trial
-
Henderson v. Estate of Wiggins
...2000 ME 136, ¶ 9, 755 A.2d 509. The principle of proximate cause contains two elements, substantiality and foreseeability. Tolliver v. Dep't of Transp., 2008 ME 83, ¶ 42, 948 A.2d 1223. In particular, "evidence is sufficient to support a finding of cause if the evidence and inferences that ......
-
Carey v. Maine Board of Overseers of Bar
...whether they involved "discretionary decisions that were integral to the accomplishment of a uniquely governmental policy or program." Tolliver, 2008 ME 83, 19-20, 948 A.2d 1223. a. BBO Defendants' Motion to Dismiss As an initial matter, the Court notes that Plaintiff pleaded no factual inf......
-
Carey v. Me. Bd. of Overseers of the Bar
...whether they involved "discretionary decisions that were integral to the accomplishment of a uniquely governmental policy or program." Tolliver, 2008 ME 83, ¶¶ 19-20, 948 A.2d 1223. a. BBO Defendants' Motion to Dismiss As an initial matter, the Court notes that Plaintiff pleaded no factual ......
-
Davis v. Theriault
... ... Worster's former employer, the Wiscasset Police ... Department, that had been released pursuant to Maine's ... Freedom of Access Act (“FOAA”). According ... Hilderbrand , ... 2011 ME 132, ¶ 10, 33 A.3d 25 (quoting Tolliver v ... Dep't of Transp. , 2008 ME 83, ¶ 19, 948 A.2d ... 1223 (plurality opinion)) ... ...
-
50-State Survey of State Court Decisions Supporting Expert-Related Judicial Gatekeeping
...to determine admissibility and the jury’s role to determine the weight of expert testimony.” Tolliver v. Dept. of Transportation, 948 A.2d 1223, 1240 (Me. 2008). A couple of Maine trial court decisions have also referred to judicial gatekeeping of expert testimony. The court in Mahony v. Pi......