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Thibodeau v. Slaney
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 116
Docket:	Som-99-603
Argued:	April 5, 2000	
Decided:	June 21, 2000

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

KEVIN M. THIBODEAU

v.

DANIEL SLANEY

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 Act{1} (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 MLLA.  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 servers{7} 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 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 to negligently injure
those individuals as long as the service of alcoholic beverages does not rise
to the MLLA standard of recklessness.  The Legislature certainly did not
intend such a license for negligence when it adopted the MLLA.  
	[¶18]  At the same time, there is no question that the Legislature
intended that the MLLA greatly restrict negligence claims regarding the
actual service of alcoholic beverages.  Thus, it should not be possible to avoid
the MLLA by pleading around it, asserting that some act of negligence by a
server, other than provision of alcoholic beverages to the plaintiff, was the
cause of plaintiff's injury.  In such circumstances, plaintiff's efforts to plead
around the MLLA can be countered by a vigilant defense asserting the MLLA
as a bar to plaintiff's claimed basis for recovery.  
	[¶19]  Thus, when the injured party is an adult who was served by the
defendant server, the MLLA can come before the court for determination in
two ways.  First, it can be asserted by a plaintiff as an affirmative basis for
recovery on a claim that a defendant recklessly served the plaintiff alcohol,
and such service of alcohol proximately caused plaintiff's injuries. 
	[¶20]  Second, when a plaintiff asserts that injury was proximately
caused by negligence of the server other than the service of alcoholic
beverages, a defendant may assert the MLLA as an affirmative defense.  See
M.R. Civ. P. 8(c).  In such a case, the defendant would contend that, if there
was any negligence by the defendant which proximately caused plaintiff's
injury, it was in the service of alcoholic beverages, not in the breach of some
other duty.  When the MLLA is asserted as an affirmative defense, the
defendant would have the burden of proof to demonstrate that the plaintiff's
injuries were caused by negligent service of alcohol, rather than some other
cause asserted by the plaintiff.  See Merrill v. Sugarloaf Mountain Corp.,
2000 ME 16, ¶ 12, 745 A.2d 378, 384.  Because of the recklessness
standard, a non-licensed server, successfully asserting that affirmative
defense, would be excused from any negligence based liability for plaintiff's
injuries.  
	[¶21]  In the instant case, neither approach was used to bring the
MLLA claim before the factfinder.  Thibodeau did not assert a MLLA claim as
a basis for recovery, and Slaney did not raise the MLLA as an affirmative
defense to Thibodeau's negligence claim.  Instead, Slaney waited until the
close of all of the evidence before even raising the liquor liability issue. 
Slaney then agreed to jury instructions and a jury verdict form that did not
require the jury, as the factfinder, to make any findings specific to the MLLA
issues.  
	[¶22]  The asserted basis for Thibodeau's negligence claim was not
service of alcohol, but rather allowing a person who had arrived at Slaney's
home inebriated to go on his roof and attempt to stain the upper area of the
exterior without adequate safety devices.  After the adverse verdict, Slaney
argued that because there was evidence he had served alcohol to Thibodeau,
this evidence, although contradicted by Slaney's own testimony, was enough
to bar the claim.
	[¶23]  The jury's verdict provides no indication as to whether the jury
reached its comparative fault determinations based on the theory asserted
by Thibodeau or based on a determination that Slaney's negligent service of
alcohol caused Thibodeau's injury.  Without such a finding on a MLLA
affirmative defense, there was no basis for the trial court to infer that the
jury found negligent service of alcohol to be the basis for liability and to
consequently apply the MLLA to vacate the jury's verdict and grant judgment
for the defendant.  Slaney failed to preserve the MLLA issue in this case, as it
was not asserted in a timely manner, and it was not subject to necessary
factfinding by the jury.
	[¶24]  Slaney asserts that, regardless of the validity of the trial court's
ruling on the MLLA, he is, in any event, entitled to a verdict because, as a
matter of law, Thibodeau's going on the roof in an inebriated state was more
negligent than any acts or omissions of Slaney in allowing Thibodeau to go
on to his roof to stain his house without safety devices.  Thus, Slaney asserts
Thibodeau's claim is barred by the comparative fault law.  See 14 M.R.S.A.
§ 156 (1980).  
	[¶25]  It is not this Court's function to redecide facts in a case.  The
jury heard and observed the parties and fully evaluated the evidence.  After
that evaluation, the jury determined that, while both parties were negligent,
Slaney's negligence was greater than Thibodeau's.  While different
factfinders might take different views of the facts of this case, the jury could
have determined that Slaney was more negligent because:  (i) he was aware
that Thibodeau was inebriated; and (ii) with that knowledge he allowed
Thibodeau to go on the roof to serve Slaney's interest in staining his house. 
With our limited and deferential review of factfindings by juries, we cannot
say as a matter of law that the jury's finding on the comparative fault issue
was clearly erroneous.
	[¶26]  Finally, Slaney asserts that the jury's verdict was improperly
affected by the closing argument which suggested that if the jury did not
award Thibodeau damages, the burden for payment of his medical expenses
would fall upon the public and the taxpayers, inferentially including the
jury.{12}  
	[¶27]  Slaney's counsel made a timely objection to this argument
which was sustained by the court.  The court then stated that the argument
was improper.  Apparently satisfied with the court's corrective action,
Slaney's counsel did not request any further statement from the court and
did not request a mistrial.  Accordingly, we must review the trial court's
failure to take further corrective action or declare a mistrial only for obvious
error affecting substantial rights.  See State v. Quirion, 2000 ME 103, ¶ 25,
__ A.2d __; State v. Boone, 563 A.2d 374, 377 (Me. 1989), State v. Hinds,
485 A.2d 231, 237 (Me. 1984).
	[¶28]  Here, Slaney's objection to the improper argument was
sustained and the jury was advised that the argument was improper.  In the
general instructions, the jury was instructed to disregard any matters
subject to sustained objections.  We presume that a jury will follow a curative
instruction, and such an instruction will be considered adequate, absent
exceptionally prejudicial circumstances or bad faith.  See State v. Chasse,
2000 ME 90, ¶ 13, __ A.2d __; State v. Naoum, 548 A.2d 120, 123 (Me.
1988); State v. Hilton, 431 A.2d 1296, 1302 (Me. 1981).  Because we
presume that the jury disregarded the improper argument, there can be no
obvious error in the court's not taking further corrective action beyond that
requested by Slaney.
	[¶29]  Accordingly, Slaney's MLLA claim and each of Slaney's claims of
error fail.

	The entry is:
Judgment vacated.  Remanded to the
Superior Court with direction to
reinstate the judgment entered based on
the jury's verdict.