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Bushey v. Berlin City of Portland, Inc.

Superior Court of Maine, Cumberland

June 19, 2015



Joyce A. Wheeler Active Retired Justice, Superior Court

Before the court is the defendant's motion for summary judgment. Plaintiff suffered injuries as a result of a car accident while riding in a car owned by defendant and driven by one of defendant's employees. Plaintiff's complaint alleges three theories of liability: negligence (count I), respondeat superior (count II), and negligent entrustment (count III). Defendant has moved for summary judgment, arguing that it is not vicariously liable for its employee's negligence as a matter of law. For the following reasons, defendant is granted summary judgment on count II of plaintiff's complaint.


The following facts are supported by the record and presented in a light most favorable to plaintiff as the non-moving party.[1] Plaintiff Stephen Bushey suffered personal injuries as a result of a single-car accident on July 22, 2011 in Gorham. (Def.'s Supp. S.M.F. 1.) At the time of the accident, David Spiller was driving the car, a Lexus sedan, while plaintiff and Jeffrey Martin were passengers. (Def.'s Supp. S.M.F. ¶¶ 2-3.) Defendant Berlin City owned the Lexus and David Spiller was an employee of Berlin City. (Def.'s Supp. S.M.F. ¶¶ 2, 5.) There is no dispute that the accident was caused by Spiller's negligent operation of the Lexus. (Def.'s Supp. S.M.F. 4, as qualified.)

As the used car manager at Berlin City, Spiller was allowed to drive a "demonstrator" vehicle-one of the used vehicles the dealership had in its inventory. (Def.'s Supp. S.M.F. ¶¶ 5-6.) Berlin City allowed certain employees to use demonstrator vehicles as a benefit to those employees and also for business reasons. (Def.'s Supp. S.M.F. 6, as qualified) Part of Spiller's job was to test used vehicles and make sure that they did not have any mechanical problems. (PL's Add. S.M.F. ¶¶ 9-11.)

On Friday July 22, 2011, Spiller clocked out of work at 6:26pm and drove home in the Lexus. (Def.'s Supp. S.M.F. ¶¶ 13-14.) Spiller took the Lexus that weekend in part to inspect it for mechanical defects and in part because he wanted to drive a nice car for the weekend. (PL's Add. S.M.F. 68.) On his way home, Martin invited Spiller to have drinks with Martin and plaintiff at Thatcher's in Westbrook. (Def.'s Supp. S.M.F. 16.) Spiller went home to shower and change and then drove to Thatcher's to meet his two friends. (Def.'s Supp. S.M.F. 17.) The three friends ordered food and drinks at the bar.[2] (Def.'s Supp. S.M.F. 18.)

While at Thatcher's, Spiller showed off the Lexus to waitresses and other customers. (PL's Add. S.M.F. ¶¶ 2-3.) According to Martin, Spiller was promoting Berlin City's business generally and telling everyone he met there that he was a salesman. (PL's Add. S.M.F. ¶¶ 4, 6.)

Around 11:00 pm, Spiller, Martin, and plaintiff left Thatcher's in the Lexus. (Def.'s Supp. S.M.F. 19.) The plan was for Spiller to drive Martin and plaintiff to his house and then the three friends would make a plan for the rest of the night. (PL's Add. S.M.F. 85.) The accident occurred while Spiller was driving to his house from Thatcher's. (Def.'s Supp. S.M.F. ¶¶ 20.) Spiller admits that he was driving well over the speed limit when he crashed. (PL's Add. S.M.F. 51.) He denies that he was intoxicated. (PL's Add. S.M.F. 50.)

Berlin City's only alcohol policy regarding demonstrator vehicles is that an employee cannot be intoxicated while driving a demonstrator. (PL's Add. S.M.F. ¶¶ 13, 30.) Berlin City fired an employee in July 2009 because he was convicted of OUL (PL's Add. S.M.F. 20.) Speeding violates the company's demonstrator policy, but Berlin City leaves it up to its insurer to decide whether an employee is too much of a risk to drive a demonstrator as a result of a speeding violation. (PL's Add. S.M.F. 32.)

Eric Johnson interviewed Spiller before he was hired by Berlin City. (PL's Add. S.M.F. 25.) He is not sure whether Berlin City obtained Spiller's driving record before he was hired. (PL's Add. S.M.F. 25.) Berlin City did not perform background checks on employees at the time it hired Spiller. (PL's Add. S.M.F. 26.)

Since 1991, Spiller has had multiple speeding convictions. (PL's Add. S.M.F. 71.) In August 2008, Spiller received a summons for driving 94 mph in a 65 mph zone. (PL's Add. S.M.F. 73.) Spiller was arrested for OUI in September of 2000 but was not convicted. (PL's Add. S.M.F. 83.)


1. Standard of Review

"Summary judgment is appropriate if the record reflects that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Dussault v. RRE Coach Lantern Holdings, LLC, 2014 ME 8, ¶12, 86 A.3d 52 (quoting F.R. Carroll, Inc. v. TD Bank, N.A., 2010 ME ¶15, 1 8, 8 A.3d 646). "A material fact is one that can affect the outcome of the case, and there is a genuine issue when there is sufficient evidence for a fact-finder to choose between competing versions of the fact." Mcllroy v. Gibson's Apple Orchard, 2012 ME 59, ¶ 7, 43 A.3d 948 (quoting N. E. Ins. Co. v. Young, 2011 ME 89, ¶ 17, 26 A.3d 794). "Even when one party's version of the facts appears more credible and persuasive to the court, any genuine factual dispute must be resolved through fact-finding, regardless of the nonmoving party's likelihood of success." Lewis v. Concord Gen. Mut. Ins. Co., 2014 ME 34, ¶ 10, 87 A.3d 732. "To survive a defendant's motion for ...

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