New Orleans Tanker v. Dept. of Transp.

• Court: Maine Supreme Court
• Writing for the Court: CALKINS, J.
• Citation: New Orleans Tanker v. Dept. of Transp., 728 A.2d 673, 1999 ME 67 (Me. 1999)
• Decision Date: 28 April 1999
• Parties: NEW ORLEANS TANKER CORPORATION v. DEPARTMENT OF TRANSPORTATION

728 A.2d 673

1999 ME 67

NEW ORLEANS TANKER CORPORATION v. DEPARTMENT OF TRANSPORTATION

Supreme Judicial Court of Maine.

Argued February 3, 1999.

Decided April 28, 1999.

John R. Bass, II, (orally), Thompson, Bull, Furey, Bass & MacColl, LLC, P.A., Portland, for plaintiff.

James E. Smith, (orally), Legal Division, Department of Transportation, Augusta, for defendant.

Before WATHEN, C.J., and RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.

CALKINS, J.

[¶ 1] New Orleans Tanker Corporation appeals from an order entered in the Superior Court (Cumberland County, Cole, J.) dismissing its complaint against the Department of Transportation (DOT) on the basis of sovereign immunity pursuant to the Maine Tort Claims Act (MTCA), 14 M.R.S.A. §§ 8101-8118 (1980 & Supp.1998). New Orleans contends that the court erred because its claim against the DOT for the negligent operation of the bridge leaf machinery on the Portland-South Portland Bridge (Million Dollar Bridge) falls within a statutory exception, 14 M.R.S.A. § 8104-A, to general governmental immunity provided by the MTCA. We disagree and affirm the judgment.

[¶ 2] In December 1997, New Orleans, the bareboat charterer¹ of the Overseas New Orleans, filed a complaint against the DOT for the negligent operation of the bridge leaf machinery on the Million Dollar Bridge. The complaint alleged that on December 23, 1995, the Overseas New Orleans was sailing westbound under the bridge when it came in contact with the bridge leaf on the Portland side of the bridge. The complaint charged the DOT with negligence in the ownership, maintenance, or use of the bridge machinery by either failing to open the bridge leaf completely or by dropping the bridge leaf on the vessel. New Orleans appeals the dismissal of the complaint pursuant to M.R. Civ. P. 12(b)(6).

[¶ 3] A motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) tests the legal sufficiency of the complaint. See Dexter v. Town of Norway, 1998 ME 195, ¶ 7, 715 A.2d 169, 171. We view the material allegation of the complaint as admitted and examine the complaint "in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Id. (quoting McAfee v. Cole, 637 A.2d 463, 465 (Me.1994)). "A dismissal is appropriate only when it appears beyond doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in support of his claim." Id. The legal sufficiency of a complaint is a question of law. See Sargent v. Buckley, 1997 ME 159, ¶ 10, 697 A.2d 1272, 1275.

[¶ 4] The MTCA provides immunity to all governmental entities from suit on all tort claims seeking recovery for damages, "except as otherwise expressly provided by statute." See 14 M.R.S.A. §§ 8103-8104-A. Section 8104-A provides the exceptions to governmental immunity at issue in this case:

[A] governmental entity is liable for property damage, bodily injury or death in the following instances.

1. Ownership; maintenance or use of vehicles, machinery and equipment. A governmental entity is liable for its negligent acts or omissions in its ownership, maintenance or use of any:

A. Motor vehicle ...;

B. Special mobile equipment ...;

C. Trailers ...;

D. Aircraft ...;

E. Watercraft ...;

F. Snowmobiles ...;

G. Other machinery or equipment, whether mobile or stationary.

[¶ 5] In interpreting the statute to determine if the bridge leaf machinery is included within the meaning of "other machinery or equipment," we start from the premise that immunity is the rule and exceptions to immunity are to be strictly construed. In Young v. Greater Portland Transit Dist., 535 A.2d 417, 419 (Me.1987), we stated that the MTCA "employed an `exception-to-immunity' approach rather than an `exception-to-liability' approach." We have consistently required the strict construction of the exceptions to immunity since the enactment of the MTCA. See Dubail v. Department of Transp., 1998 ME 126, ¶ 7, 711 A.2d 1301, 1303; Lynch v. Town of Kittery, 677 A.2d 524, 525 (Me.1996); Lovejoy v. State of Maine, 544 A.2d 750, 751 (Me.1988); Clockedile v. State Dept. of Transp., 437 A.2d 187, 189 (Me.1981).

[¶ 6] In strictly construing the section 8104-A(1) exceptions to liability, our decisions have given a narrow interpretation to the phrase "other machinery or equipment" in section 8104-A(1)(G). In order for there to be liability for the negligent use or operation of "other machinery or equipment," we require that the risk from the negligent use of the "other machinery or equipment" be comparable to the risk that results from the negligent use of the vehicles listed in section 8104-A(1)(A) through (F), that is, motor vehicles, special mobile equipment, trailers, aircraft, watercraft, and snowmobiles. See J.R.M., Inc. v. City of Portland, 669 A.2d 159, 161 (Me.1995).

[¶ 7] In McNally v. Town of Freeport, 414 A.2d 904, 906 (Me.1980) (citation omitted), we said:

Particularly since the legislative history of this statute is far from clear, we hesitate to announce an all-inclusive construction of one of its major provisions. It is sufficient to note that for a device to come within the meaning of § 8104(1)(G) it must, as a result of its negligent ownership, maintenance or use, create a risk of injury to person or property comparable to the risk created by the negligent ownership, maintenance or use of the specifically enumerated items of machinery and equipment.

Thus, without expressly stating so, we cautiously applied the interpretive principle of ejusdem generis in which the meaning of general words of a phrase is limited to things or items of the same general class as those expressly mentioned. See Penobscot Nation v. Stilphen, 461 A.2d 478, 489 (Me.1983). The principle of ejusdem generis has been succinctly described by a leading commentator: "Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." 2A NORMAN J. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 47.17 (5th ed.1992). [¶ 8] It is readily apparent that the listed items in section 8104-A(1)(A) through (F) are items capable of transportation. They are mobile and likely to come into contact with the general public. Most are fairly ordinary transportation devices with which people have a fair degree of familiarity. Accidents with these items are common, and insurance is readily available. They are not machines affixed to a permanent structure which operate a moving part of that structure.

[¶ 9] The complaint in this case alleges that the negligent use of the bridge leaf machinery caused the bridge leaf not to open fully or not to remain in the open position. This resulted in damage to the tanker when it came into contact with the leaf of the bridge. The risk from the negligent use of the bridge leaf machinery is not comparable to the risks from the items listed in section 8104-A(1)(A) through (F). The major risk from the negligent use of vehicles with the power to move is that they will be driven or transported in locations where the general public is exposed to the possibility of a collision and resulting harm. Unlike vehicles, the bridge leaf machinery is part of the bridge; it is affixed to or contained within the bridge. Although there may be some risk from the negligent operation or maintenance of the bridge leaf machinery, it is not comparable to the risks from the other items. The general public does not come into contact with the bridge leaf machinery in the same way that the public comes into contact with governmental vehicles of the type enumerated in the statute.

[¶ 10] The Legislature did not intend the general phrase "other machinery or equipment" in section 8104(1)(G) to include all other possible machinery and equipment that is negligently owned or operated by a governmental unit and could therefore cause some form of personal injury or property damage. If that were the case, there would be no need to list specific items, such as snowmobiles, and the general term would render the specific terms surplusage. It is a well-established principle of statutory construction that "nothing in a statute may be treated as surplusage if a reasonable construction... is otherwise possible." Struck v. Hackett, 668 A.2d 411, 417 (Me.1995) (citation omitted).

[¶ 11] It is true that "other machinery or equipment" contains the modifying phrase "whether mobile or stationary." 14 M.R.S.A. § 8104-A(1)(G). It can be argued that the use of this phrase means that "other machinery or equipment" cannot be restricted to items similar to those listed in section 8104(1)(A) through (F), that is, items capable of transporting people or things or other selfpropelled vehicles, and that if we were to interpret "other machinery or equipment" in such a narrow fashion, we would be negating the phrase "mobile or stationary." The latter phrase, however, is as ambiguous as the first. It could refer to machinery or equipment capable of movement whether moving or stationary at the time of the negligence, or it could refer to machinery or equipment that has no capacity for movement and is always stationary. For the purposes of this case, it is not necessary to decide what "mobile or stationary" means; it is sufficient to state that the phrase "mobile or stationary" does not enlarge "other machinery or equipment" such that the phrase encompasses all the innumerable machines and equipment which governmental units could conceivably own or use. "Other machinery or equipment whether mobile or stationary" must be in the same general class as the listed items in section 8104-A(1)(A) through (F).

[¶ 12] Further support that the Legislature did not intend for a governmental unit to be liable for the negligent operation of bridge leaf machinery can be found in the legislative...