SAMUEL B. DESJARDINS Plaintiff
CYNTHIA L. MOODY et als. Defendants
ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO AMEND
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).
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.
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
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.
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.
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
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.
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.
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.
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
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 ...