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Kaechele v. Kenyon Oil Co.

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 39
Docket:	And-99-280
Argued:	November 3, 1999
Decided:	February 29, 2000




	[¶1]  Kenyon Oil Company, Inc., doing business as Xtra Mart, along
with its insurers Warren Equities and the Groves Corporation,{1} appeal from
the judgment entered in the Superior Court (Androscoggin County,
Fritzsche, J.) on a jury verdict finding that the negligence of Xtra Mart was a
cause of the injuries suffered by Albert Kaechele when he was assaulted at
Xtra Mart by another customer.  Xtra Mart argues that the trial court made
several evidentiary errors and erred when it denied Xtra Mart's motion for a
judgment as a matter of law or a new trial.  We affirm the judgment.
	[¶2]  Xtra Mart is a 24-hour convenience store located in Auburn.  On
the evening of May 4, 1994, Albert Kaechele went to the store to purchase a
MegaBucks lottery ticket, and to visit his wife, May Kaechele, who was
working as an Xtra Mart clerk.  Also present in the store that evening were
Darlene Mailey, who was also on duty as an Xtra Mart clerk; Valerie Rowe, an
off-duty clerk; and Valerie Rowe's husband Armand Rowe, with their six-
month-old daughter Tiffany.  
	[¶3]  Sometime around 7:45 p.m., Madrid Roddy entered the store and
attempted to purchase cigarettes.  May Kaechele refused to sell Roddy
cigarettes without first examining his identification.  Angry at the prospect
of having to return home to get his license, Roddy yelled obscenities at May
and Mailey and pounded the service counter.  He continued for
approximately fifteen minutes to object strenuously to the clerks' repeated
requests for identification.  Eventually, he left the store, slammed the door,
and began pounding on the store's front window.  Armand, fearful that
Roddy might vandalize his vehicle, watched him from the door and
suggested that Mailey or May call the police.  No call was made at that time. 
Armand and Albert Kaechele eventually left the store, and a confrontation
with Roddy ensued in the parking lot.  Words were exchanged, and Roddy
struck Kaechele, severely injuring his face.  At this point, one of the clerks
called the Auburn Police Department, which dispatched an officer to the
scene within two minutes.  
	[¶4]  Kaechele filed suit to recover for his injuries, naming Roddy, Xtra
Mart, Kenyon Oil Company, Inc., the Grove Corporation, and Warren
Equities, Inc., as defendants.{2}  The complaint alleged that the negligence of
Xtra Mart was a proximate cause of Kaechele's injuries.  The jury found that
both Kaechele and Xtra Mart were negligent, concluded that Xtra Mart was
more negligent, and awarded Kaechele damages.  The jury valued his
damages at $210,000, but adjusted the award to $168,000 after taking into
account Kaechele's own negligence.  Xtra Mart moved for a judgment as a
matter of law or for a new trial.  The motion was denied, and this appeal
	[¶5]  Xtra Mart asserts that the trial court made multiple evidentiary
errors.  We address only two:  (1) whether the court erred in admitting
evidence regarding Xtra Mart's previous calls to the Auburn Police
Department; and (2) whether the court erred in admitting evidence
regarding two Xtra Mart employees' statements to the effect that the assault
could have been avoided if they had acted more quickly to summon the
police.  We also address Xtra Mart's assertion that the court erred in
declining to grant a judgment as a matter of law or for a new trial.  
A.  Evidence of Prior Incidents at Xtra Mart

	[¶6]  Xtra Mart argues that the evidence presented relating to previous
calls from Xtra Mart to the Auburn Police Department was not relevant, and
that to the extent it had any relevance, it should have been excluded on the
basis of M.R. Evid. 403.  We review a court's determination of relevance for
errors of law as to the factual predicate; that is, as to the bare possibility that
the evidence may have any tendency to make the "existence of a fact that is
of consequence to the determination of the action" more or less probable. 
M.R. Evid. 401; Rich v. Fuller, 666 A.2d 71, 73 (Me. 1995).  A fact may,
however, be "of consequence" and yet of minimal value.  The court's
decision regarding the admissibility of relevant evidence therefore  "blends
imperceptibly into its discretion under Rule 403."  Field & Murray, Maine
Evidence § 401.1 at 91.  We review a decision to admit or exclude relevant
evidence pursuant to Rule 403 for abuse of discretion because the
determination "involves the weighing of probative value against
considerations militating against admissibility."{3}  Rich, 666 A.2d at 73; see
also Jones v. Route 4 Truck & Auto Repair, 634 A.2d 1306, 1308 (Me.
1993).  Thus, once the bare fact of relevance is determined, we accord the
trial judge significant discretion in determining its admissibility.  See Gurski
v. Culpovich, 540 A.2d 764, 766 (Me. 1988).
	1.  Relevance

	[¶7]  We first determine whether the challenged evidence was
relevant to the determination of any fact before the jury.  The trial court
must undertake an analysis of relevance by first examining the precise cause
of action presented by the plaintiff and the elements of proof necessary to
the factfinder's decisions on those elements. 
	[¶8]  Kaechele's claim of negligence springs from Xtra Mart's duty to
exercise reasonable care regarding the safety of its patrons.  "[A] proprietor
of an inn, hotel, motel, restaurant, or similar establishment is liable for an
assault upon a guest or patron by another guest, patron, or third person
where he has reason to anticipate such assault, and fails to exercise
reasonable care under the circumstances to prevent the assault or interfere
with its execution."  Brewer v. Roosevelt Motor Lodge, 295 A.2d 647, 651
(Me. 1972).{4}  Thus, when a patron has been injured by a third party at an
establishment with a duty to act reasonably to protect its patrons, the
touchstone of liability will be the notice of the risk, both general and
specific, and the exercise, or lack thereof, of reasonable care.  
	[¶9]  At trial, there was no real factual dispute regarding the place of
the assault (on Xtra Mart's property), the results of the assault (relatively
serious injuries to Kaechele's face), or the person who assaulted Kaechele
(Roddy).  The dispute for resolution by the jury centered on whether Xtra
Mart anticipated, or should have anticipated, the assault, and if so, whether
Xtra Mart exercised reasonable care to prevent the assault or interfere with
its execution.  
	[¶10]  A proprietor must guard its patrons against not only known
dangers but also those which it "should reasonably anticipate."  Brewer, 295
A.2d at 651.  Therefore, whether Xtra Mart should have anticipated the
assault must be analyzed from two perspectives:  first, did Xtra Mart have
notice that its facility generally presented a risk that third parties would
assault its patrons;{5} and second, did Xtra Mart know, or should it have
anticipated, that Roddy would assault a patron on the evening in question. 
Generally, evidence of similar incidents in the past will be relevant on the
issue of notice.  See Simon v. Town of Kennebunkport, 417 A.2d 982,
985-85 (Me. 1980).  When notice is contested in a matter involving
allegations of a third-party assault, evidence demonstrating a pattern of prior
substantially similar assaults on the premises is relevant on the issue of
notice.  See Brewer, 295 A.2d at 651.{6}
	[¶11]  It was against this backdrop that the trial court was called upon
to make its determination of the relevance of prior incidents at the Xtra
Mart.  After hearing from counsel, the court excluded evidence that it
concluded had little probative value, including the specific details of a litany
of reasons, unrelated to assaultive or dangerous behavior of third parties,
that the police had previously been called to Xtra Mart.{7}  It concluded,
however, that general evidence regarding the frequency of calls to Xtra Mart
and evidence of prior assaults on the premises was relevant. 
	[¶12]  The evidence regarding prior calls to the police was presented
by two members of the Auburn Police Department.  The officers testified
generally that Xtra Mart was the source of many calls, that they regularly
responded to calls regarding violence at the store, that Xtra Mart was one of
the most frequent sources of calls in the area, and that not all calls related
directly to violence.  The court did not err in concluding that the evidence
was relevant under Rule 401 because it tended to show that:  (1) Xtra Mart
was on notice that this type of dangerous behavior was not uncommon at this
Xtra Mart location; (2) Xtra Mart had sufficient notice of the risk over time
that precautions of some type could have been instituted; and (3) Xtra Mart
knew that law enforcement officials were alert to problems at the site and
could be called upon to respond promptly in an emergency.  These
inferences are directly probative on issues of Xtra Mart's notice of the
general risk to patrons at its Auburn store, and its exercise or failure to
exercise reasonable care to prevent assaults or interfere in their execution. 
See Marois v. Paper Converting Mach. Co., 539 A.2d 621, 625 (Me. 1988).{8}
The court did not err in concluding that the proffered evidence was

	2.  Probative Value vs. Prejudicial Effect

	[¶13]  We turn then to Xtra Mart's claim that the prejudicial effect of
the evidence substantially outweighed its probative value.  Xtra Mart does not
point to any particularly inflammatory information about prior incidents.{9}
Rather, it argues that the cumulative evidence of the numerous occasions on
which police had been called to this location would tend to make the jury
believe that it was a "hotbed of criminal activity or public nuisance."  The
court was careful to restrict the inquiry to avoid testimony regarding the
specific outcomes of previous assaults, particularly one involving serious
physical injury.  The court did not exceed the bounds of its discretion when
it concluded that the probative value of evidence related to prior police calls
to this Xtra Mart, as limited by the court, was not substantially outweighed
by any possible prejudice that could result from the admission of the

B.  Opinions of the Xtra Mart Employees

	[¶14]  Xtra Mart also argues that the court abused its discretion when
it allowed May Kaechele and Mailey testify to their opinions that the assault
would not have occurred had they called the police earlier.  Xtra Mart
contends that this evidence "usurped the jury's proper role." 
	[¶15]  Maine Rule of Evidence 701 establishes the general rule related
to lay opinion testimony.  A lay witness may testify as to her opinions if
"those opinions . . . are (a) rationally based on the perception of the witness
and (b) helpful to a clear understanding of the witness's testimony or the
determination of a fact in issue."  M.R. Evid. 701.{10}  More specifically, Rule
704 provides that opinion testimony "is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact."  M.R. Evid.
704.  We "defer to the discretion of the presiding justice in making the M.R.
Evid. 704 determination and will not disturb the exercise of that discretion
'absent clear abuse of discretion or an error of law.'"  Pierce v. Central Me.
Power Co., 622 A.2d 80, 83 (Me. 1993) (quoting Minott v. F.W. Cunningham
& Sons, 413 A.2d 1325, 1330 (Me. 1980).{11}  
	[¶16]  May Kaechele and Mailey were asked if they thought the
situation could have been avoided had they called the police earlier.  Both
answered in the affirmative.  Although the testimony was presented in the
form of a legal conclusion (but for their inaction, the assault may not have
occurred), it did not usurp the jury's role.  Both individuals were present
throughout the events at issue.  Both had an opportunity to observe Roddy's
actions and to be aware of the amount of time passing.  Both were familiar
with the response of the police.  Although May Kaechele's opinion could
have been understood to be self-serving, her relationship to the injured
party alone did not require the exclusion of her statement.  See M.R. Evid.
601; see also State v. Smith, 400 A.2d 749, 755 n.6 (Me. 1979) (recognizing
that self-serving testimony is not inadmissible for that reason and suggesting
that the jury may devalue such testimony).  Xtra Mart was free to argue to
the jury that the statement carried little probative value as a result of its self-
serving nature.  The trial court did not exceed the bounds of its discretion
when it allowed the testimony.

B.  Xtra Mart's Motion for a Judgment as a Matter of Law or a New Trial

	[¶17]  Finally, Xtra Mart argues that the trial court erred when it
denied its motion for a judgment as a matter of law or a new trial.  We
review the denial of a motion for a judgment as a matter of law or a new trial
to "determine if any reasonable view of the evidence and those inferences
that are justifiably drawn from that evidence supports the jury verdict." 
Bates v. Anderson, 614 A.2d 551, 552 (Me. 1992), quoted in Townsend v.
Chute Chem. Co., 1997 ME 46, ¶ 8, 691 A.2d 199, 202.  A judgment as a
matter of law is improper if "any reasonable view of the evidence could
sustain a verdict for the opposing party."  Currier v. Toys 'R' Us, Inc., 680
A.2d 453, 455 (Me. 1996); see also Maine Energy Recovery Co. v. United
Steel Structures, Inc., 1999 ME 31, ¶ 6, 724 A.2d 1248, 1250.
	[¶18]  Xtra Mart argues first that the court was required to grant
judgment in its favor because Kaechele failed to establish that Xtra Mart had
reason to anticipate the specific assault.  The jury heard evidence that:  (1)
Roddy's tirade lasted for approximately fifteen minutes; (2) people hearing
the tirade were concerned about his dangerous behavior; (3) at least one
person suggested that the police be called, and no immediate call was made;
and (4) Roddy's violence escalated over time.  This evidence and the
reasonable inferences drawn therefrom support the jury's conclusions that
Xtra Mart, through its agents, should reasonably have anticipated the assault.  
	[¶19]  Xtra Mart next argues that it was entitled to judgment because
Kaechele failed to show that his negligence was less than Xtra Mart's
negligence.  Along with the duty of a business proprietor to exercise
reasonable care in the face of foreseeable dangers to his patrons, see
Brewer, 295 A.2d at 651, those patrons have a duty to exercise reasonable
care to avoid those injuries, see Isaacson v. Husson College, 297 A.2d 98
(Me. 1972).  Xtra Mart argues that because Kaechele and the clerks
witnessed the same events, Kaechele must have been as negligent, or more
negligent, when he exited the store and confronted Roddy.  Although he also
witnessed Roddy's outburst, he was neither trained to deal with such
situations nor regularly exposed to them.  A jury could reasonably conclude
that although both he and Xtra Mart were negligent, Xtra Mart was more so. 
See 14 M.R.S.A. § 156 (1980).
	[¶20]  The trial court did not err when it denied Xtra Mart's motion
for a judgment as a matter of law or a new trial.
	The entry is:
Judgment affirmed.

Attorney for plaintiff: Scott J. Lynch, Esq., (orally) Hornblower & Lynch, P.A. P O Box 116 Lewiston, ME 04243-0116 Attorney for defendants: Martica S. Douglas, Esq., (orally) Douglas, Denham, Buccina & Ernst P O Box 7108 Portland, ME 04112-7108
FOOTNOTES******************************** {1} . We refer to the defendants collectively as "Xtra Mart." {2} . Roddy has since been convicted of aggravated assault and has filed for bankruptcy protection. The U.S. Bankruptcy Court (Goodman, J.) granted a partial relief from stay, allowing the matter to proceed against the corporate defendants. {3} . Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. " M.R. Evid. 403. {4} . Cf. Bryan R. v. Watchtower Bible & Tract Soc. of N.Y., Inc., 1999 ME 144, ¶ 12, 738 A.2d 839, 844 (noting that, although ordinarily there is no duty to protect others from the actions of third parties, exceptions include innkeepers). {5} . A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it. Restatement (Second) of Torts § 344 (1965); see also Doe v. Gunny's Ltd. Partnership, 593 N.W.2d 284, 290 (Neb. 1999); Weitz v. State, 696 N.Y.S.2d 656, 660-61 (N.Y. Ct. Cl. 1999). {6} . See also Reid v. Augusta-Richmond County Coliseum Auth., 416 S.E.2d 776, 779 (Ga. Ct. App. 1992), quoted in Walker v. Sturbridge Partners, Ltd., 470 S.E.2d 738, 741 (Ga. Ct. App. 1996). {7} . The court excluded a packet of computer printouts from the Auburn Police Department chronicling each call it received from Xtra Mart over several years prior to the incident, concluding that the incidents were not "sufficiently similar" to be relevant on the issue of notice. It also excluded evidence related to a fight in the Xtra Mart parking lot in which one of the combatants received an eye injury, similar to the injury suffered by Kaechele. The injured party sued Xtra Mart, and the jury in that case found no negligence. {8} . Evidence of previous assaults by others would not have been relevant on the existence of Roddy's actual assault on Kaechele. Because there was no dispute that Roddy did in fact assault Kaechele, there was no danger that the jury would impermissibly rely on the evidence of prior assaults to infer that Roddy assaulted Kaechele. Accordingly, no limiting instruction was necessary. {9} . See, e.g., Pelkey v. Canadian Pac. Ltd., 586 A.2d 1248 (Me. 1991) (finding no error in exclusion of evidence of prior accident involving children which could tend to arouse an emotional reaction on part of jury). {10} . See State v. Miller, 1999 ME 182, ¶ 8, 741 A.2d 448, 451. {11} . Pierce involved a negligence claim in which an expert witness testified that the accident was "foreseeable." Pierce v. Central Me. Power Co., 622 A.2d 80, 83. In affirming the trial court's decision to admit the evidence, we concluded that, although the question to the witness was "posed in the terminology of a legal standard, [it] was not subject to misunderstanding by the witness or the jury. " Id.