ORDER ON MOTION TO DISMISS
the court is defendant Walter Kidde Portable Equipment,
Inc.'s motion to dismiss plaintiff Ashley Summers's
second amended complaint for failure to state a claim. M.R.
Civ. P. 12(b)(6). For the following reasons, the motion to
dismiss is denied.
March 8, 2017, the court granted plaintiff's motion to
amend her complaint. Summers v. Walter Kidde Portable.
No. CV-16-0418, 2017 Me. Super. LEXIS 53, *l-8 (Mar. 8,
2017). Plaintiff filed her second amended complaint on March
22, 2017. The second amended complaint corrects the name of
defendant Walter Kidde, but it did not change the substance
of the first amended complaint.
Walter Kidde filed a motion to dismiss the second amended
complaint on March 31, 2017. Plaintiff filed her opposition
to the motion on April 20, 2017. Defendant Walter Kidde filed
its reply on April 27, 2017. Defendant Walter Kidde contends
plaintiff failed to plead (1) the proximate cause element of
her strict liability and negligence claims and (2) the
privity element of her breach of an implied warranty of
Motion to Dismiss
motion to dismiss for failure to state a claim, the court
accepts "the facts alleged in the complaint as if they
were admitted." Ramsey v. Baxter Title Co..
2012 ME 113, ¶ 2, 54 A.3d 710. It considers the
complaint "in the light most favorable to the plaintiff
to determine whether it sets forth elements of a cause of
action or alleges facts that would entitle the plaintiff to
relief pursuant to some legal theory." Johnston v.
Me. Energy Recovery Co., 2010 ME 52, ¶ 10, 997 A.2d
741. "The notice pleading standard, see M.R. Civ. P.
8(a), requires only that the complaint 'give fair notice
of the cause of action by providing a short and plain
statement of the claim showing that the pleader is entitled
to relief, and then make a demand for that relief.'"
Nadeau v. Frydrvch, 2014 ME 154, ¶ 5, 108 A.3d
1254 (quoting Howe v. MMG Ins. Co., 2014 ME 78,
¶ 9, 95 A.3d 79).
cause is an element of plaintiff's claims for strict
liability and negligence. Marois v. Paper Converting
Mach, Co., 539 A.2d 621, 623 (Me. 1988) (discussing the
overlap in negligence and strict liability elements).
"The question of whether a defendant's acts or
omissions were the proximate cause of a plaintiff's
injuries is generally a question of fact, and a judgment as a
matter of law is improper if any reasonable view of the
evidence could sustain a finding of proximate cause."
Houde v. Millett, 2001 ME 183, ¶ 11, 787 A.2d
757. Plaintiff, in her second amended complaint, sufficiently
alleges the element of proximate cause to survive the morion
to dismiss. (Pl.'s 2nd Am. Compl. ¶¶ 1, 8, 12,
16, 17, 18, 38, 45, 54-55, 59, 64, 68.)
Purchaser of Goods
warranty actions partake of both tort and contract law."
Simmons, Zillman, & Gregory. Maine Tort Law
§ 12.17 at 349 (1999 ed.). The Legislature amended the
Maine Uniform Commercial Code ("UCC") to abrogate
the requirement of contractual privity between plaintiff and
defendant in warranty claims and replaced it with the
tort-based foreseeability requirement.See Ouellette
v. Sturm, Ruger & Co., 466 A.2d 478, 482-83 (Me.
1983) (holding "that the noncontractual liability
resulting from the elimination of privity and premised upon a
status measured by reasonable foreseeability sounds in tort
rather than in contract . . . ."). Section 2-318 of the
UCC reads as follows:
Lack of privity between plaintiff and defendant shall be no
defense in any action brought against the manufacturer,
seller or supplier of goods for breach of warranty, express
or implied, although the plaintiff did not purchase the goods
from the defendant, if the plaintiff was a person whom the
manufacturer, seller or supplier might reasonably have
expected to use, consume or be affected by the goods.
11 M.R.S. § 2-318 (2016). Thus, the decedent need not
have purchased a good from defendant Walter Kidde in order
for plaintiff to bring a claim for breach of an implied
warranty. Stanley v. Schiavi Mobile ...