JAMES J. MENDILLO, Plaintiff
MRE, INC. and JOHN DOE, Defendants
ORDER ON PARTIAL MOTION TO DISMISS
Joyce A. Wheeler, Justice, Superior Court.
Before the Court is the defendants' motion to dismiss counts II -- VII of plaintiff's complaint. For the following reasons, the motion is granted.
The following facts are taken from plaintiff James Mendillo's complaint. The Court does this because on a motion to dismiss the court must view the complaint in the light most favorable to the plaintiff. During the events of this case, Mendillo was a supervisory chef at Mid Coast Hospital in Brunswick, Maine. (Compl. ¶ ¶ 3, 5.) At the time, defendant MRE, Inc. provided kitchen cleaning and servicing to Mid Coast Hospital. (Compl. ¶ 3.) On January 18, 2008 an unknown MRE employee, " John Doe, " used a chemical cleaning product known as " calcium remover" on the kitchen equipment at Mid Coast Hospital. (Compl. ¶ 6.) After he finished cleaning the equipment, he told Mendillo that it was " all set." (Compl. ¶ 7.)
Mendillo alleges that John Doe failed to properly remove all of the chemical cleaning agents from the kitchen equipment. (Compl. ¶ 8.) As a result, a buildup of lime flakes blocked the drain for a steam table in the kitchen. (Compl. ¶ ¶ 8, 11.) Mounting steam pressure inside the equipment caused it to malfunction. (Compl. ¶ 11.) When Mendillo opened the equipment, he was blasted with a large burst of steam that contained phosphoric acid and hydrochloric acid from the calcium remover product. (Compl. ¶ ¶ 12-13.) Mendillo suffered serious injuries, including " permanent bodily impairment." (Compl. ¶ 19.)
Mendillo tiled his complaint on January 8, 2014. Mendillo's complaint contains seven counts: negligence (count I), negligent failure to warn (count II), strict liability for failure to warn (count III), strict liability for failure to comply with OSHA requirements (count IV), negligent misrepresentation (count V), negligent supervision (count VI), and exemplary damages (count VII). Defendant MRE, Inc. filed its answer and motion to dismiss on March 26, 2014.
1. Standard of Review
A motion to dismiss tests the legal sufficiency of the complaint. Savage v. Me. Pretrial Servs., Inc ., 2013 ME 9, ¶ 6, 58 A.3d 1138. The Court must view the complaint in " the light most favorable to the plaintiff" and treat its material allegations " as admitted to determine whether it alleges the elements of a cause of action against the defendant or alleges facts that could entitle the plaintiff to relief under some legal theory." Richardson v. Winthrop Sch. Dep't , 2009 ME 109, ¶ 5, 983 A.2d 400. Dismissal is warranted only " when it is beyond doubt that the plaintiff is entitled to no relief under any set of facts that might be proven in support of the claim." Id. (quotation marks omitted). " A party may not . . . proceed on a cause of action if that party's complaint has failed to allege facts that, if proved, would satisfy the elements of the cause of action" Burns v. Architectural Doors & Windows , 2011 ME 61, ¶ 17, 19 A.3d 823.
2. Negligent and Strict Liability Failure to Warn (Counts II and III)
Mendillo alleges that defendants are liable for failing to warn him about the dangerous nature of the products used to clean the kitchen equipment.
Regardless of whether a failure to warn claim is phrased in terms of negligence or strict liability, the analysis . . . is basically the same. The general rule is that the supplier of a product is liable harm that results from foreseeable uses of the product if the supplier has reason to know that the product is dangerous and fails to exercise reasonable care to so inform the user.
Pottle v. Up-Right, Inc ., 628 A.2d 672, 675 (Me. 1993) (quotation marks omitted). The problem with Mendillo's failure to warn claims is that defendants were not " suppliers" and Mendillo was not a " user" of the cleaning product. As alleged in Mendillo's complaint, MRE provided cleaning services to Mid Coast Hospital. Mendillo does not have a products liability claim, based on strict liability or negligence, because there is no product in this case. Mendillo's ordinary negligence claim captures his allegations that MRE and its employee had a duty to warn him that the cleaning product ...