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Desjardins v. Moody

Superior Court of Maine, Cumberland

October 25, 2016

CYNTHIA L. MOODY et als. Defendants


          A. M. Horton, Justice

         Pursuant to Rule 15(a) of the Maine Rules of Civil Procedure, Plaintiff Samuel B. Desjardins has filed a Motion for Leave to Amend Complaint that is opposed by Defendant Cumberland Farms, Inc., one of multiple defendants. The court elects to decide the Motion without oral argument. See M.R. Civ. P. 7(b)(7).


         The underlying facts and circumstances, taken as true for present purposes, are that, on January 6, 2015, Plaintiff was severely injured in an automobile accident caused by Defendant Cynthia Moody, who was driving drunk. Her breath alcohol level hours after the accident was several times above the legal limit and she has been convicted of operating under the influence.

         Cumberland Farms and other Defendants are named as being potentially liable under the Maine Liquor Liability Act (MLLA) for having served or sold Defendant Moody alcoholic beverages before the accident. See 28-A M.R.S. §§ 2501 et seq. The claim against Cumberland Farms is based on Moody's purchase of beer at a Cumberland Farms store in Brunswick minutes before the accident involving Plaintiffs vehicle.

         However, Defendant Moody at her deposition evidently has testified that she had not consumed any of the beer prior to the accident, thereby raising a causation issue for purposes of Plaintiffs MLLA claim against Cumberland Farms. Plaintiff's Motion for Leave to Amend Complaint seeks, by means of Count III, to add a claim against Cumberland Farms for common law negligence.

         Cumberland Farms objects to the negligence claim as being futile on the ground that its liability, if any, in this case is governed exclusively by the MLLA, and that Plaintiff has no cognizable claim for common law negligence.

         Plaintiff contends that Cumberland Farms was negligent, not just because it sold alcoholic beverages to Moody when she was visibly intoxicated for purposes of the MLLA, but also because it "failed to take reasonable steps under the circumstances to prevent Defendant Moody from driving, although it knew or should have known that Defendant Moody was intoxicated and would pose a danger to others while driving." Plaintiffs (Proposed) First Amended Complaint ¶12.

         Plaintiffs reply memorandum alludes to the liberal standard for allowing amendment of pleadings, see M.R. Civ. P. 15(a), and contends that the amendment should be allowed because there exists a conceivable set of facts that would support an independent negligence claim. Specifically, Plaintiff contends that, under the circumstances, Cumberland Farms had a duty to call the police or otherwise to prevent Moody from driving away from the store: "... Plaintiffs negligence claim would not be based on the alleged sale of alcohol at all, but upon the failure to call the police despite knowledge of Moody's driving while in an extreme state of intoxication." Plaintiffs Reply Memorandum at 7.

         Plaintiffs reply memorandum sets forth a detailed narrative of facts developed in discovery indicating that the employees of Cumberland Farms clearly knew Moody was highly intoxicated when she bought beer-stumbling and otherwise showing every sign of being drunk-to the extent that at least one employee was extremely concerned about the risk of an accident and, in hindsight, regretted not having called the police. See Plaintiffs Reply Memorandum at 3-7. Plaintiff asserts that Moody was a frequent customer of the Cumberland Farms store in question, and often was sold alcoholic beverages when she was visibly intoxicated.

         Cumberland Farms's objection to the negligence claim asserts that, for purposes of common law negligence, it had no duty to call the police or prevent Moody from driving, and that its liability, if any, is solely under the MLLA.


         As the Law Court observed in Jackson v. Tedd-Lait Post No. 75, 1999 ME 26, 723 A.2d. 1220, "absent a special relationship, the law imposes no duty to act affirmatively to protect someone from danger unless the dangerous situation was created by the defendant." 1999 ME 26 at ¶8, 723 A.2d at 1221. As the court in Jackson also noted, when "it is the service of liquor that [creates] the special relationship, dangerous situation or unreasonable risk, . . . the exclusivity provision of the MLLA is applicable." Id.

         The facts of this case are, in some respects, similar to those in Jackson. In Jackson, the plaintiff had consumed 25-30 beers and 5-7 shots of vodka at a bar before being ejected. He asked the bartender to call a cab for him and the bartender refused. Plaintiff then went outside and was hit by a car. He sued the bar, as the Plaintiff in this case proposes to do, both for violating the MLLA and for common law negligence. The trial court granted judgment on the negligence claim and a jury found for the defendant on the MLLA claim. On appeal, the Law Court rejected the plaintiffs argument that he had a viable common law negligence claim, noting that absent a "special ...

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