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Thibodeau v. Slaney, attorneys and footnotes

Attorney for plaintiff:

Charles T. Ferris, Esq., (orally)
18 Silver Street
Waterville, ME 04901

Sidney H. Geller, Esq.
18 Silver Street
Waterville, ME 04901

Attorney for defendant:

James Brett Main, Esq., (orally)
Platz & Thompson, P.A.
P O Box 960
Lewiston, ME 04243-0960
FOOTNOTES******************************** {1} . See 28-A M.R.S.A. §§ 2501-2520 (1988 & Supp. 1999). The exclusivity provision of the MLLA states that the MLLA "is the exclusive remedy against servers who may be made defendants . . . for claims by those suffering damages based on the servers' service of liquor." 28-A M.R.S.A. § 2511 (1988). {2} . Slaney testified that he did not provide the Captain Morgan's for the group's consumption, nor did he see Thibodeau consume any of it. Moreover, Slaney denied that the bottle belonged to him and claimed that his brother had taken the bottle out of his vehicle and provided it. Thibodeau, on the other hand, testified that the bottle of Captain Morgan's the three men passed around in the garage was provided by Slaney, and he believed the bottle was present before he and Slaney's brother arrived. {3} . Based on the record, it appears Slaney left it to the discretion of his brother and Thibodeau to determine what equipment would be required to safely complete the task. Slaney was not present while the two men stained the house, including when Thibodeau went up onto the roof. Rather, he was inside the house working in one of the upstairs bedrooms. {4} . Thibodeau had worked for a construction company and was familiar with the use of hook ladders, harnesses and jacks when one was working higher than six feet off of the ground. He testified that although it was within his discretion to use such safety equipment when he worked for that company, he always used it. {5} . M.R. Civ. P. 50(b) governs motions for judgment as a matter of law after the case is sent to the jury and provides as follows: Whenever a motion for judgment as a matter of law made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Such a motion may be renewed in open court or by service and filing not later than 10 days after entry of judgment. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as a matter of law. If no verdict was returned the court may direct the entry of judgment as a matter of law or may order a new trial. {6} . Although the court's order granted Thibodeau leave to file a complaint within the scope of the MLLA, this was in reality a grant of no right at all because the MLLA specifically provides that an intoxicated individual may not bring suit against a server for negligently serving liquor if the individual is at least 18 years old at the time of the service. See 28-A M.R.S.A. § 2504(2)(A) (1988). {7} . Section 2503(5), defines a server as "a person who sells, gives or otherwise provides liquor to an individual." 28-A M.R.S.A. § 2503(5) (1988). {8} . 28-A M.R.S.A. § 2513 (1988) sets forth the notice requirement in a MLLA action and states: § 2513. Notice required Every plaintiff seeking damages under this Act must give written notice to all defendants within 180 days of the date of the server's conduct creating liability under this Act. The notice must specify the time, place and circumstances of the server's conduct creating liability under this Act and the time, place and circumstances of any resulting damages. No error or omission in the notice voids the effect of the notice, if otherwise valid, unless the error or omission is substantially material. Failure to give written notice within the time specified is grounds for dismissal of a claim, unless the plaintiff provides written notice within the limits of section 2514 and shows good cause why notice could not have reasonably been filed within the 180­p;day limit. {9} . 14 M.R.S.A. § 752 (1980). {10} . 28-A M.R.S.A. § 2504(2) (1988) states: 2. Persons who may not bring suit. The following may not bring an action under this Act against a server for negligently serving liquor to an individual: A. The intoxicated individual if he is at least 18 years of age when served by the server; B. The estate of the intoxicated individual if the intoxicated individual was at least 18 years of age when served by the server; and C. Any person asserting claims arising out of the personal injury or death of the intoxicated individual if the intoxicated individual was at least 18 years of age when served by the server. 28-A M.R.S.A. § 2507 (1988 & Supp. 1999) states as follows: § 2507. Reckless service of liquor; liability 1. Reckless service to a minor. A server who recklessly provides liquor to a minor is liable for damages proximately caused by that minor's consumption of the liquor. 2. Reckless service to a visibly intoxicated individual. 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. 3. Reckless conduct. Service of liquor is reckless if a server intentionally serves liquor to an individual when the server knows that the individual being served is a minor or is visibly intoxicated and the server consciously disregards an obvious and substantial risk that serving liquor to that individual will cause physical harm to the drinker or to others. For purposes of this Act, the disregard of the risk, when viewed in light of the nature and purpose of the server's conduct and the circumstances known to the server, must involve a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation. 4. Evidence of reckless conduct. Specific serving practices that are admissible as evidence of reckless conduct include, but are not limited to, the following: A. Active encouragement of intoxicated individuals to consume substantial amounts of liquor; B. Service or liquor to an individual who is under 18 years of age when the server has actual or constructive knowledge of the individual's age; and C. Service of liquor to an individual that is so continuous and excessive that it creates a substantial risk of death by alcohol poisoning. {11} . 28-A M.R.S.A. § 2509(1) (1988) states: 1. Limitation on damages for losses other than expenses for medical care and treatment. In actions for damages permitted by this Act, the claim for and award of damages for all losses, except expenses for medical care and treatment, including devices or aids, against both a server and the server's employees and agents, may not exceed $250,000 for any and all claims arising out of a single accident or occurrence. Section 2509(1) has been addressed in Peters v. Saft, 597 A.2d 50 (Me. 1991). {12} . The argument was as follows: MR. FERRIS: What this case is, what we're here trying to help Mr. Thibodeau do, is to find out who the heck is going to carry the tab for this. And does it make sense from a public policy standpoint for the taxpayers, for all of us ­p;­p; MR. MAIN: Your Honor, I object. MR. FERRIS: ­p;­p; to foot the bill. THE COURT: I sustain the objection, that's improper argument. MR. FERRIS: But that's what we have to do, we have to decide who is going to cover these bills. It's not a personal attack against the Slaneys. And the defense counsel will try to hammer this into your heads, but it's not true. . . .

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