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Summers v. Walter Kidde Portable Equipment, Inc.

Superior Court of Maine, Cumberland

June 16, 2017

ASHLEY SUMMERS, Plaintiff
v.
WALTER KIDDE PORTABLE EQUIPMENT, INC., et al., Defendants

          ORDER ON MOTION TO DISMISS

          NANCY MILLS JUSTICE.

         Before 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.

         FACTS

         On March 8, 2017, the court granted plaintiff's motion to amend her complaint.[1] 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.

         Defendant 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 merchantability claim.

         DISCUSSION

         1. Motion to Dismiss

         On a 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).

         a. Proximate Cause

         Proximate 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.)

         b. Purchaser of Goods

         "[P]resent 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.[2]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 ...


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