McNally v. Town of Freeport
| Decision Date | 23 May 1980 |
| Citation | 414 A.2d 904 |
| Parties | Richard T. McNALLY v. The TOWN OF FREEPORT. |
| Court | Maine Supreme Court |
Ross A. Kimball (orally), Ralph A. Dyer, III, Portland, for plaintiff.
F. Paul Frinsko (orally), Portland, for Town of Freeport.
James G. Palmer, Brunswick, for G. Schofield.
John W. McCarthy, Asst. Atty. Gen., Augusta, for Carol Dunphey, R.N.
Before McKUSICK, C. J., and WERNICK, GODFREY, GLASSMAN and ROBERTS, JJ.
The plaintiff, Richard McNally, appeals from an order of the Superior Court, Cumberland County, dismissing his complaint against the defendant, Town of Freeport. The Town had predicated its motion to dismiss on the ground that it was immune from suit under the Maine Tort Claims Act, 14 M.R.S.A. §§ 8101-8118. As his sole ground for appeal, the plaintiff contends that 14 M.R.S.A. § 8104(1)(G) permits an action against the Town for the negligence of its employee, Carol Dunphey, in performing a blood test on the plaintiff. We affirm the judgment of dismissal.
From a reading of the plaintiff's complaint, it appears that at 1:00 a. m. on August 17, 1978, Officer Schofield of the Freeport Police Department arrested the plaintiff on Route 1 of the Town of Freeport for the offense of operating a motor vehicle under the influence of intoxicating liquor, 29 M.R.S.A. § 1312. The plaintiff was placed in Officer Schofield's cruiser and taken to the Cumberland County Jail where he was fingerprinted, photographed and administered a blood test by Carol Dunphey, who it is alleged was employed by the Town of Freeport as its agent to obtain the blood. The complaint further alleges:
Defendant Dunphey, while acting within the scope of her authority, did withdraw blood from the arm of the Plaintiff in a negligent or intentional manner so as to cause injury to the Plaintiff.
Having apparently complied with the notice provision of the Maine Tort Claims Act, see 14 M.R.S.A. § 8107, the plaintiff filed a complaint in the Superior Court on April 4, 1979. In Count I of his complaint, the plaintiff sought $2,500 in compensatory damages from Officer Schofield and the Town on the ground that the police officer, while acting within the scope of his employment, had negligently allowed the plaintiff's automobile to be left unprotected on Route 1 and as a result the plaintiff had suffered emotional distress and had lost money from a wallet left in the vehicle. In Count II of the complaint, the plaintiff sought $10,000 in damages from Dunphey and the Town. Both Dunphey and Schofield answered, and the police officer filed a counterclaim for defamation and abuse of process. The Town moved to dismiss on the ground that it was immune from suit under 14 M.R.S.A. § 8103. This motion was granted without opinion, and the complaint as to the Town was dismissed. The plaintiff then appealed to this Court. 1
The plaintiff concedes that liability cannot be imposed upon the Town because of the alleged acts of Officer Schofield and that as to Count I of the complaint the action of the Superior Court was proper. Our concern, therefore, is solely with Count II of the complaint.
In support of the Superior Court's ruling, the Town first asserts that as a matter of law it cannot be held liable for the alleged negligence of Carol Dunphey because she was an independent contractor and not an agent of the Town. See 14 M.R.S.A. § 8102(1). This contention must be rejected. The complaint alleges that Carol Dunphey is an agent of the Town, and it is axiomatic that all material allegations are to be taken as admitted for the purpose of ruling on a motion to dismiss. E. g., Harmon v. Harmon, Me., 404 A.2d 1020, 1021 (1979). See generally 1 R. Field, V. McKusick & L. Wroth, Maine Civil Practice § 12.11 (1970). Thus, for the purpose of ruling on the Town's motion to dismiss, the Superior Court was obliged to accept as true the allegation that Dunphey was an agent of the Town.
The Town's second argument is that the withdrawal of blood with a hypodermic syringe does not fall within the exclusions from the broad grant of governmental tort immunity conferred by Section 8103(1). 2 Section 8104 creates exceptions to this immunity and provides in pertinent part:
A governmental entity shall be liable for its negligent acts or omissions causing property damage, bodily injury or death in the following instances:
1. In its ownership, maintenance or use of any:
A. Motor vehicle . . . ;
B. Special mobile equipment . . . ;
C. Trailers . . . ;
D. Aircraft . . . ;
E. Watercraft . . . ;
F. Snowmobiles . . . ; and
G. Other machinery or equipment, whether mobile or stationary...
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...cases where we held that privately-employed medical workers were government employees pursuant to the MTCA); McNally v. Town of Freeport, 414 A.2d 904, 905 (Me.1980) (holding that “an agent of the Town” who administered a blood test was a government employee pursuant to the MTCA).6 Although......
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