Bushey v. Berlin City of Portland, Inc.

• Decision Date: 25 January 2016
• Docket Number: SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-14-99
• Citation: Bushey v. Berlin City of Portland, Inc., SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-14-99 (Me. Super. Jan 25, 2016)
• Parties: STEPHEN J. BUSHEY Plaintiff, v. BERLIN CITY OF PORTLAND, INC. Defendant.
• Court: Maine Superior Court

STEPHEN J. BUSHEY Plaintiff, v. BERLIN CITY OF PORTLAND, INC. Defendant.

SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-14-99

Superior Court of Maine

RECEIVED: January 26, 2016

January 25, 2016

STATE OF MAINE

CUMBERLAND, SS.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON COUNTS I AND III OF PLAINTIFFS COMPLAINT

Defendant Berlin City of Portland, Inc. has moved for summary judgment on Plaintiff Stephen J. Bushey's claims against Defendant for negligence (Count I) and negligent entrustment (Count III).

Based on the entire record, Defendant's motion for summary judgment is granted as to Count I and denied as to Count III.

I. Background

The following facts are derived from the pleadings and the order on Defendant prior motion for summary judgment and are not in dispute for the purposes of this motion for summary judgment.

Defendant is a car dealership located in South Portland, Maine. (Compl. ¶ 2.); (6/19/15 Order on Def. 1st Mot. Summ. J. 2.) At all relevant times, Mr. David Spiller was employed as Defendant's used car manager. (6/19/15 Order on Def. 1st Mot. Summ. J. 2.) As its used car manager, Defendant permitted Mr. Spiller to drive demonstrator vehicles. (Id.) A "demonstrator" vehicle is a used vehicle owned by Defendant from its inventory. (Id.) Defendant allowed certain employees use demonstrator vehicles as a benefit to those employees and for other business reasons. (Id.)

On the evening Friday, July 22, 2011, Mr. Spiller left work with a demonstrator vehicle, a Lexus sedan. (Id.) Later that night, Mr. Spiller met Mr. Jeffery Martin and Plaintiff Stephen J. Bushey at a bar in Westbrook, Maine. (Id. at 1-2.) Mr. Spiller, Mr. Martin, and Plaintiff ordered food and drinks at the bar. (Id. at 2.)

At approximately 11:00pm, Mr. Spiller, Mr. Martin, and Plaintiff left the bar in the demonstrator vehicle. (Id. at 3.) Mr. Spiller was driving the demonstrator vehicle. (Id. at 1.) Mr. Martin and Plaintiff were both passengers. (Id. at 1-2.) While driving to Mr. Spiller's home, the demonstrator vehicle was involved in a single-car accident. (Id. at 1, 3.) Mr. Spiller admits that he was driving well over the speed limit when the accident occurred, but denies that he was intoxicated. (Id. at 3.) There is no dispute between the parties that Mr. Spiller's negligent operation of the demonstrator vehicle caused the accident. (Id. at 2.) Plaintiff Stephen J. Bushey suffered injuries as a result of the accident. (Id. at 1.)

On March 6, 2014, Plaintiff brought a three-count complaint against Defendant Berlin City of Portland, Inc. for negligence, respondeat superior liability, and negligent entrustment. (Compl. ¶¶ 4-11.) On March 17, 2015, Defendant filed its first motion for summary judgment. (Def. 1st Mot. Summ. J. 1.) Defendant's motion argued that it was not vicariously liable for its employee's negligence. (Id.) Plaintiff filed a timely opposition. (Pl. Opp'n to Def. 1st Mot. Summ. J. 1.) On June 19, 2015, the court granted Defendant's motion for summary judgment, finding that Mr. Spiller was not acting within the scope of his employment at the time of the accident. (6/19/15 Order on Def. 1st Mot. Summ. J. 7.) However, Defendant's motion did not address which of the Plaintiff's claims it was addressed to. (Id. at 4 n.3.) Accordingly, the court construed Defendant's motion as limited only to Count II of Plaintiff's complaint for respondeat superior. (Id.) Thus, Count I and Count III remained pending. (Id. at 7.)

Defendant filed its second motion for summary judgment on Count I and Count III of Plaintiff's complaint on September 22, 2015. (Def. 2d Mot. Summ. J. 1.) Plaintiff filed a timely opposition to summary judgment on October 13, 2015.¹ (Pl. Opp'n to Def. 2d Mot. Summ. J. 1.) Defendant filed a reply brief on November 2, 2015.² (Def. Reply to Pl. Opp'n to Def. 2d Mot. Summ. J. 1.)

II. Analysis

A. Standard of Review

Summary judgment is appropriate if, based on the parties' statements of material fact and the cited record, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); Dyer v. Dep't of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821. "A material fact is one that can affect the outcome of the case. A genuine issue of material fact exists when the [Tact finder] must choose between competing versions of the truth." Dyer, 2008 ME 106, ¶ 14, 951 A.2d 821 (internal citation and quotation marks omitted). When deciding a motion for summary judgment, the court reviews the evidence in the light most favorable to the non-moving party. Id.

If the moving party's motion for summary judgment is properly supported, the burden shifts to the non-moving party to respond with specific facts indicating a genuine issue for trialin order to avoid summary judgment. M.R. Civ. P. 56(e). "To withstand a motion for summary judgment, the plaintiff must establish a prima facie case for each element of their cause of action." Watt v. UniFirst Corp., 2009 ME 47, ¶ 21, 969 A.2d 897 (internal citation and quotation marks omitted). If a plaintiff fails to present sufficient evidence on the essential elements, then the defendant is entitled to a summary judgment. Id.

Even if one party's version of the facts appears more credible and persuasive, any genuine issue of material fact must be resolved by the fact finder, regardless of the likelihood of success. Estate of Lewis v. Concord Gen. Mut. Ins. Co., 2014 ME 34, ¶ 10, 87 A.3d 732. If the facts are capable of supporting conflicting, yet plausible, inferences and capable of leading a rational fact finder to different outcomes, the choice between those inferences and outcomes is not for the court to decide on summary judgment. Id.

B. Whether there is a genuine issue of material fact regarding Plaintiff's negligence claim.

Count I of Plaintiff's complaint is a claim for negligence against Defendant. (Compl. ¶¶ 4-7.) "A cause of action for negligence has four elements: (1) a duty of care owed to the plaintiff; (2) a breach of that duty; (3) an injury; and (4) causation, that is, a finding that the breach of the duty of care was a cause of the injury." Estate of Smith v. Cumberland Cnty., 2013 ME 13, ¶ 16, 60 A.3d 759. Whether a defendant breached their duty of care, causation, and the existence of injury or damages are questions of fact left to the fact finder. Id. ¶ 17. The existence of a duty, however, is a question of law for the court. Id. Summary judgment is an appropriate device for isolating dispositive questions of law. Magno v. Town of Freeport, 486 A.2d 137, 141 (Me. 1985).

In its motion for summary judgment, Defendant argues that Count I of Plaintiff's complaint asserts "no independent factual or legal basis for a claim" of negligence. (Def. 2dMot. Summ. J. 2.) According to Defendant, Plaintiff's negligence claim simply re-alleges that Defendant negligently entrusted its vehicle to Mr. Spiller. (Id.)

In response, Plaintiff argues there is an independent basis for its negligence claim, for which there is a genuine issue of material fact. (Pl. Opp'n to Def. 2d Mot. Summ. J. 2.) According to Plaintiff, Count I of its complaint addresses Defendant's duty to protect the public from unsafe operation of its vehicles, which is independent of its duty to prevent harm when entrusting vehicles to its employees. (Id. at 2-3.) Plaintiff argues that Defendant was negligent in its policies and procedures that governed use of the demonstrator vehicles. (Id. at 3.) Plaintiff asserts that Defendant did not prohibit employees from consuming alcohol while using the demonstrator vehicles; that Defendant did not enforce its policy prohibiting speeding while using demonstrator vehicles; and that Defendant did not preform background checks of its employees. (Pl. Add'l S.M.F. ¶¶ 13, 21, 26, 32-34, 40-41.) Plaintiff argues that the absence of these policies and procedures governing the use of demonstrator vehicles was a direct and proximate cause of Plaintiff's injury. (Pl. Opp'n to Def. 2d Mot. Summ. J. 3.)

Plaintiff is essentially arguing that Defendant had a duty to the public to use reasonable care to prevent its employees from engaging in dangerous operation of motor vehicles, which is independent of and separate from Defendant's duty to prevent harm when entrusting its vehicles to its employees. In Trusiani, the Law Court specifically held, "An employer is not responsible for gathering information about its employees' personal lives and closely monitoring their behavior to insure that nothing at work converging with those habits could cause harm to third parties." Trusiani v. Cumberland & Tork Distribs., Inc., 538 A.2d 258, 262 (Me. 1988). Defendant had no duty to monitor its employees' alcohol consumption or their driving habits when acting outside the scope of their employment or gather information on their backgrounds. Thus, Defendant did not owe Plaintiff the type of duty that Plaintiff seeksto impose. In other words, the sole duty owed by Defendant relevant to these facts and circumstances was the duty to use reasonable care in entrusting its vehicles to employees for their personal use—the duty on which Plaintiff's negligent entrustment claim in Count III of his complaint rests. Therefore, to the extent Count I is based on a separate duty of care, there is no such duty and Defendant is entitled to summary judgment on Plaintiff's independent negligence claim.

C. Whether there is a genuine issue of fact regarding Plaintiff's negligent entrustment claim.

Count III of Plaintiff's complaint asserts a claim for negligent entrustment of a vehicle. (Compl. ¶¶ 10-11.) The Law Court has recognized negligent entrustment of a vehicle as a tort under Maine law. Pelletier v. Mellon Bank, N.A., 485 A.2d 1002, 1004 n.5 (Me. 1985) (citing Sweet v. Austin, 158 Me. 90, 179 A.2d 302 (1962)). However, the Law Court has not articulated its elements. Yunker v. Iverson, CUMSC-CV-95-413, 1997 Me. Super. LEXIS 197, *3 (Me. Super. Ct. July 1, 1997).

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