Thibodeau v. Slaney

• Decision Date: 21 June 2000
• Citation: 2000 ME 116,755 A.2d 1051
• Parties: Kevin M. THIBODEAU v. Daniel SLANEY.
• Court: Maine Supreme Court

755 A.2d 1051

2000 ME 116

Kevin M. THIBODEAU v. Daniel SLANEY.

Supreme Judicial Court of Maine.

Argued April 5, 2000.

Decided June 21, 2000.

Charles T. Ferris, Esq., (orally), Sidney H. Geller, Esq., Waterville, for plaintiff.

James Brett Main, Esq., (orally), Platz & Thompson, P.A., Lewiston, for defendant.

Panel WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

ALEXANDER, J.

[¶ 1] Kevin M. Thibodeau appeals from the judgment of the Superior Court (Somerset County, Marsano, J.) determining that Thibodeau's negligence claim was subject to the exclusivity provision of the Maine Liquor Liability Act¹ (MLLA) and vacating a jury verdict and judgment that had been entered in his favor. Thibodeau argues that it was error for the court to vacate the judgment because the facts of the case he presented were properly decided pursuant to his cause of action for negligence and did not fall within the scope of the MLLLA. Daniel Slaney argues that the trial court's judgment should be affirmed even if his MLLA argument is invalid because of Thibodeau's comparative fault and improper closing argument.

[¶ 2] Because the MLLA issue was not properly presented or preserved, and because there is no other error affecting substantial rights which justifies overturning the jury's verdict, we vacate the trial court's action and reinstate the judgment on the jury's verdict.

I. CASE HISTORY

[¶ 3] On November 4, 1995, Kevin Thibodeau and Kevin Slaney, Daniel Slaney's brother, prepared to voluntarily assist in staining Daniel Slaney's house. Prior to arriving at the house, and while waiting for Daniel Slaney to arrive, each man consumed several alcoholic beverages. When Slaney arrived, he walked around the house with Thibodeau pointing out areas that still needed to be stained, including several areas that could only be accessed by going on the roof.

[¶ 4] During the course of the project, Thibodeau testified that he consumed several more beers and that Slaney had provided him several shots of Captain Morgan's Spiced Rum. While there is no dispute that Thibodeau had consumed a substantial amount of alcoholic beverages, the parties dispute whether Slaney served any drinks to Thibodeau. Slaney denied that the Captain Morgan's belonged to him and did not recall seeing Thibodeau consume any of it.² Slaney also testified that he was unaware of the fact that Thibodeau and his brother had consumed any alcohol before arriving at his home. According to Slaney, Thibodeau did not appear intoxicated and he did not smell alcohol on the breath of either his brother or Thibodeau. Slaney did testify, however, that when his brother and Thibodeau were together, there was a good chance that the consumption of alcohol would be involved in their activities.

[¶ 5] When Thibodeau climbed onto the roof to stain the peak of the house, he employed no safety equipment.³ Using a spray gun, Thibodeau stained the area. Some of the stain apparently ended up on the roof, causing the shingles to become slippery. Because the spray gun could not reach far enough to stain the entire area, Thibodeau attempted to complete the staining using a brush. He then slipped on the wet shingles, fell and sustained numerous injuries.

[¶ 6] Thibodeau testified that if he was sober he probably would have used better judgment and balance or alternatively that he would not have attempted to paint the area of the house without the use of safety equipment.⁴

[¶ 7] After the close of the evidence, Slaney raised the MLLA for the first time, asserting that it barred Thibodeau's claim. However, Slaney also agreed to a verdict form that did not ask the jury to make any findings that would be essential to determine whether the MLLA in fact barred the claim.

[¶ 8] For comparative fault analysis, Thibodeau conceded that his personal consumption of alcohol was negligent, but the jury concluded that Slaney's negligence was greater. The jury determined that Thibodeau's damages totalled $230,261.37. It also determined that Thibodeau's negligence justified a reduction of the damages awarded to $97,261.37. See Pomeroy v. Glidden, 1997 ME 118, ¶ 4, 695 A.2d 1185, 1186, Pelletier v. Fort Kent Golf Club, 662 A.2d 220, 222-24 (Me.1995) (comparative fault damage awards need not be in proportion to the causative fault of the parties.).

[¶ 9] After the jury returned its verdict, the court entered a judgment on the verdict and set a schedule for both parties to present their arguments with respect to the motion for a judgment as a matter of law.⁵ Slaney argued that Thibodeau's claim was subject to the exclusivity provision of the MLLA because the facts presented by Thibodeau at trial indicated that the consumption and service of alcohol was the focus of his claim. Thibodeau responded and asserted that Slaney's negligence in failing to supply safety equipment was the cause of his injuries, not the service of alcohol. Thibodeau also argued that there was evidence at trial that Slaney had not served him any alcohol at all, thereby removing the case from the scope of the MLLA.

[¶ 10] The court concluded that Thibodeau had in fact framed his case in a manner that made it subject to the MLLA. While the court had not asked the jury to make special findings on the MLLA issue, the court determined that Slaney was a server and that the central cause of the accident was Thibodeau's intoxication. After making this determination, the court dismissed the case for lack of subject matter jurisdiction pursuant to M.R. Civ. P. 12(h)(3).⁶ Thibodeau appealed from that order.

II. DISCUSSION

[¶ 11] When we review the grant of a 50(b) motion for a judgment as a matter of law, we "examine the jury's verdict to `determine if any reasonable view of the evidence and those inferences that are justifiably drawn from that evidence supports the jury's verdict."' Maine Energy Recovery Co. v. United Steel Structures, Inc., 1999 ME 31, ¶ 6, 724 A.2d 1248, 1250 (quoting Townsend v. Chute Chemical Co., 1997 ME 46, ¶ 8, 691 A.2d 199, 202). We have recently stated that:

In reviewing a trial court's disposition of a motion for a judgment as a matter of law, we view the evidence together with all justifiable inferences in the light most favorable to the party opposing the motion. The motion should not be granted if any reasonable view of the evidence could sustain a verdict for the opposing party.

Id. (quoting Lewis v. Knowlton, 1997 ME 12, ¶ 6, 688 A.2d 912, 913) (internal quotations omitted).

[¶ 12] The exclusivity provision of the MLLA provides that the MLLA "is the exclusive remedy against servers⁷ who may be made defendants ... for claims by those suffering damages based on the servers' service of liquor." 28-A M.R.S.A. § 2511 (1988) (emphasis added). Thibodeau contends that his injuries did not result from Slaney negligently serving him alcohol, but rather from Slaney's negligently allowing him to go onto the roof while intoxicated and without safety equipment adequate to complete the task at hand.

[¶ 13] In Jackson v. Tedd-Lait Post No. 75, American Legion, 1999 ME 26, ¶¶ 8-9, 723 A.2d 1220, 1221-22, we stated that the MLLA applies where the service of liquor is at "the very center of creating the special relationship, dangerous situation or unreasonable risk." In Jackson, the bartender had asked the intoxicated customer, to whom she had served liquor, to leave. See id., ¶ 2, 723 A.2d at 1220. Although the customer asked the bartender to arrange transportation for him, she refused. See id. As the customer stood on a nearby by sidewalk, he was struck by a vehicle. See id., ¶ 3, 723 A.2d at 1220. The customer then sued contending that the bartender's conduct ordering him to leave the premises and refusing to arrange transportation for him constituted negligence. See id., ¶ 6, 723 A.2d at 1221. Based on that set of facts, we indicated that there was no special relationship between the Legion and the customer except the one created by its service of alcohol. See id., ¶ 8, 723 A.2d at 1221.

[¶ 14] In the present case, the relationship between Slaney and Thibodeau centered on staining the house, not on serving alcoholic beverages. While the jury was not asked to make any finding on the issue, it certainly could have concluded that the consumption of alcohol, if germane to the relationship at all, was at best secondary. The jury also could have found that Slaney served no alcoholic beverages to Thibodeau. Thus, the present case is distinguishable from Jackson, where the only real link between plaintiff and defendant was the service of alcohol.

[¶ 15] The MLLA governs actions where a plaintiff alleges that a defendant negligently served the plaintiff alcoholic beverages, proximately causing plaintiff's intoxication and subsequent injury for which plaintiff seeks damages. It addresses claims "based on the servers' service of liquor." 28-A M.R.S.A. §§ 2504, 2511 (1988).

[¶ 16] The MLLA remedies for adults provide a significant narrowing of common law tort liability by: (i) requiring notice within 180 days,⁸ compared to the normal six-year statute of limitations;⁹ (ii) imposing a recklessness standard for liability, in lieu of the usual negligence standard;¹⁰ and (iii) placing a $250,000 cap on nonmedical damages, regardless of the severity of plaintiff's injury.¹¹ These restrictions suggest a statute narrowly focused on server fault in serving alcohol. Such statutes in derogation of the common law are to be narrowly construed. See Emery Waterhouse Co. v. Lea, 467 A.2d 986, 996 (Me.1983).

[¶ 17] The MLLA cannot be construed to bar every claim where actions by a defendant, other than serving alcohol, are alleged to have caused a plaintiff injury and there is evidence that during the course of their activities, the defendant happened to serve the plaintiff one or more alcoholic beverages. Such a construction would, in essence, be a license for individuals who have served other individuals alcohol...