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Jackson v. Tedd-Lait Post # 75
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Decision:	1999 ME 26 
Docket: 	Pen-98-197
Argued:	February 3, 1999
Decided:	February 11, 1999




	[¶1]  Brian Jackson appeals from a judgment entered on a jury verdict
in the Superior Court (Penobscot County, Kravchuk, C.J.) in favor of Tedd-
Lait Post No. 75, American Legion.  Jackson contends that the trial court
erred in dismissing the two negligence counts of his complaint and in the
jury instructions.  We affirm the judgment
	[¶2]  On the afternoon of October 6, 1991, Brian Jackson and a friend
were drinking at the American Legion bar in Old Town.  According to
Jackson, he consumed approximately twenty-five to thirty beers and five to
seven shots of vodka at the Legion, in addition to approximately six beers
consumed earlier at the friend's house.  In the early evening, Jackson, who
was a regular customer at the Legion, got in an argument with the
bartender, and she ordered him to leave.  It was raining heavily, and he
asked her to call him a cab.  She refused, and he left.
	[¶3]  A police officer, who knew Jackson well, saw him standing in the
street.  The officer moved Jackson to the sidewalk, told him to stay there
and promised to give him a ride home as soon as the officer responded to a
call at a business down the street.  A few minutes later the officer saw
Jackson lying in the street.  He had been hit by a car.  Jackson suffered a
fractured knee, and he sustained skin abrasions. 
	[¶4]  Jackson brought an action against the Legion for negligence and
violation of the Maine Liquor Liability Act (MLLA), 28-A M.R.S.A. §§ 2501-
2520 (1988 & Supp. 1998).{1}  The case was tried to a jury, and at the close
of the evidence, the trial court granted the Legion's motion to dismiss the
negligence counts of the complaint for failure to state a claim on which
relief could be granted.{2}  The remaining count, alleging reckless conduct,
went to the jury.  The jury found that the Legion had not been reckless, and
judgment was entered accordingly.  
	[¶5]  Count II of Jackson's complaint alleges that the Legion was
negligent in refusing to call Jackson a taxi.  Count III alleges that the Legion
was negligent "[b]y knowingly permitting the Plaintiff to become
dangerously intoxicated while on the Defendant's premises, and by failing to
take reasonable steps to ensure safe transportation for the Plaintiff upon
leaving the club."  In ruling for the Legion, the trial court relied on the
exclusivity provision of the MLLA: "This Act is the exclusive remedy against
servers who may be made defendants under section 2505, for claims by
those suffering damages based on the servers' service of liquor." 28-A
M.R.S.A. § 2511 (1988).
I.  Negligence
	[¶6]  Jackson argues that the negligence counts are not barred by
section 2511 because they are not based on the Legion's service of liquor. 
He contends that the Legion's conduct of ejecting him from the premises
and refusing to call him a cab constituted negligence.
	[¶7]  It is a truism that in order for there to be negligence there must
be a duty owed by a defendant to a plaintiff.  "Duty involves the question of
'whether the defendant is under any obligation for the benefit of the
particular plaintiff.'"  Trusiani v. Cumberland & York Distributors, Inc., 538
A.2d 258, 261 (Me. 1988) (quoting W. Page Keeton, Prosser and Keeton on
The Law of Torts § 53, at 356 (5th ed. 1984)). 
	[¶8]  Jackson asserts, but does not cite any authority for, the
proposition that there is a duty of a business to see that an intoxicated
customer is not injured after he leaves the premises.  Jackson claims that
the Legion had an affirmative duty to call him a taxi.  This is nonfeasance
rather than misfeasance, and 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.  See Hughes v. Beta
Upsilon Bldg. Assoc., 619 A.2d 525, 527 (Me. 1993); Restatement (Second)
of Torts § 314 (1965).  Here there is no special relationship between the
Legion and Jackson unless it is one created by the service of a large quantity
of liquor to Jackson.  Likewise, if a dangerous situation was created by the
Legion, it was caused by the service of liquor.  
	[¶9]  Jackson argues that the Restatement provides that an innkeeper
has a duty toward its guests to protect them "against unreasonable risk of
physical harm."  Restatement (Second) of Torts § 314A.  Even if we were to
adopt this provision of the Restatement and hold that the Legion was in the
same position as an innkeeper,{3} Jackson still would not escape the effects of
the exclusivity provision of the MLLA.  We would have to conclude that the
unreasonable risk was primarily created by the serving of liquor.  Because
the claim for damages would be based on the service of liquor, the Legion
would not be liable for common law negligence.  In this case it is the service
of liquor that is at the very center of creating the special relationship,
dangerous situation or unreasonable risk, and, therefore, the exclusivity
provision of the MLLA is applicable.
	[¶10]  A number of courts facing similar factual situations have
declined to find the server of liquor liable for common law negligence.  The
California Court of Appeal held that a bar had no duty to arrange a ride home
for an intoxicated patron who asked for one, and who subsequently was hit
by a car while walking home.  See Andrews v. Wells, 251 Cal. Rptr. 344, 347-
49 (1988).  See also DeBolt v. Kragen Auto Supply, Inc., 227 Cal. Rptr. 258,
260-61 (1986) (holding that a host who ejected a guest from a party,
knowing that she would drive, had statutory immunity, and negligence claim
for not providing safe transportation would not lie); McCall v. Villa Pizza,
Inc., 636 A.2d 912, 914-15 (Del. 1994) (finding a server's ejection of an
intoxicated patron without calling a cab did not give rise to negligence
liability); Kelly v. Sinclair Oil Co., 476 N.W.2d 341, 354-55 (Iowa 1991)
(holding that ejecting intoxicated patron without providing transportation
breaches no duty because there is no special relationship).
	[¶11]  The purpose and legislative history of the MLLA further support
the conclusion that section 2511 was intended to forestall the imposition of
liability on a server of liquor who fails to arrange transportation for an
intoxicated patron.  We upheld the constitutionality of that section in Peters
v. Saft, 597 A.2d 50, 54 (Me. 1991), where we said, "The exclusivity
provision is rationally related to the stated goal of making the liability of the
server predictable, while at the same time giving victims a cause of action
that was heretofore unclear."  If we were to hold that a server could be liable
in the situation presented by this case, that predictability would disappear.{4}  
	[¶12]  The trial court did not err in refusing to submit the negligence
counts of Jackson's complaint to the jury. II. Jury Instructions
	[¶13]  Count I, which was presented to the jury, alleged that Jackson's
injuries were proximately caused by the Legion's reckless service of liquor
in violation of the MLLA, 28-A M.R.S.A. § 2507 (1988 & Supp. 1998).{5}  The
trial court instructed the jury on reckless service of liquor:
		Now, with respect to Maine's Liquor Liability Law, you may
only find the defendant American Legion liable for damages to
the plaintiff, if the plaintiff proves by a preponderance of the
evidence that the American Legion, one recklessly served liquor
to Mr. Jackson, the plaintiff; and two, that Mr. Jackson, the
plaintiff, was visibly intoxicated.
		The American Legion's conduct is reckless if, one, it
intentionally served liquor to Mr. Jackson; two, Mr. Jackson was
visibly intoxicated; and three, the American Legion, its
employees or agents, consciously disregarded an obvious and
substantial risk that serving liquor to Mr. Jackson will cause
harm to Mr. Jackson.
The court then instructed the jury on the definition of "visibly intoxicated"
and "intoxication" utilizing the statutory definitions.  Id.  § 2503(2), (7).  It
went on to explain "disregard of the risk" using the words of section
 	[¶14]  Jackson objected to the instruction and argued that the
question for the jury was whether the Legion engaged in reckless conduct,
not just the reckless serving of liquor, but conduct encompassing both
reckless service of liquor and reckless failure to call a cab.  The trial court
correctly limited its instruction on reckless conduct to that defined by the
statute.  The MLLA provides a remedy for the reckless service of liquor but
not for any other reckless conduct.  "A server who recklessly serves liquor
to a visibly intoxicated individual is liable for damages proximately caused by
that individual's consumption of the liquor."  Id.  § 2507(2).  The trial court
did not err in declining to instruct the jury on reckless conduct other than
the reckless service of liquor.
	The entry is
			Judgment affirmed.
Attorney for plaintiff: John Bunker, Esq., (orally) Paine, Lynch & Harris, P.A. P O Box 1451 Bangor, ME 04402-1451 Attorney for defendant: Christopher C. Dinan, Esq., (orally) Monaghan, Leahy, Hochadel & Libby, LLP P O Box 7046 Portland, ME 04112-7046
FOOTNOTES******************************** {1} . The driver of the car was originally named as a defendant, but the action was dismissed as to him because Jackson was unable to serve process on him. {2} . All of the parties and the court treated the Legion's motion as a Rule 12(b)(6) motion. Since the court indicated that it took the evidence presented at the trial in consideration in ruling on the motion, the motion should be considered as a motion for judgment as a matter of law pursuant to M.R. Civ. P. 50(a). {3} . We also note that the comment to that Restatement section states that "an innkeeper [is not] under a duty to a guest who is injured or endangered while he is away from the premises." Restatement (Second) of Torts § 314A cmt. c. {4} . The MLLA was adopted in part because servers had a difficult time obtaining insurance, when the extent of their common law liability outside the previous Dram Shop Act was unclear. See Report of the Joint Standing Committee on Legal Affairs, The Dram Shop Act and Liquor Liability Law in Maine 8 (1986). See also William P. Shumaker, Comment, From "Maine Law" to Model Act: Liquor Liability in Maine, 39 Me. L. Rev. 149, 200 (1987) ("Having achieved what it believed was an equitable balance of duties and liabilities among the various interested parties, the Committee did not want the balance upset by the intrusion of . . . additional common law liability."). {5} . As an intoxicated adult, Jackson was barred from suing under the MLLA for negligent service of liquor. See 28-A M.R.S.A. § 2504(2)(A) (1988).