ERIC BADLER v. UNIVERSITY OF MAINE SYSTEM
Fra-21-264
Maine Supreme Judicial Court
June 28, 2022
2022 ME 40
MEAD, JABAR, HORTON, and CONNORS, JJ.*
Argued: March 9, 2022.
HORTON, J.
[¶1] Eric Badler appeals from a summary judgment entered by the Superior Court (Franklin County, Mills, A.R.J.) in favor of the University of Maine System on Badler‘s claim of negligence based on an injury he sustained from an industrial kitchen mixer. The court concluded that the University is immune from suit, but Badler contends that the court erred because the mixer falls within the “[o]ther maсhinery or equipment” exception to immunity under the Maine Tort Claims Act (MTCA).
* Although Justice Gorman participated in the appeal, she retired before this opinion was certified.
I. BACKGROUND
[¶2] The following facts are drawn from the parties’ supported statements of material fact and arе viewed in the light most favorable to Badler. See Connary v. Shea, 2021 ME 44, ¶ 3, 259 A.3d 118. Badler was employed as a baker by Sodexo, a company that provides food and dining services to the University of Maine System. While working at the University‘s Farmington campus on November 4, 2017, Badler severely injured his right index finger while using an industrial, motorized kitchen mixer, which was supplied and owned by the University. The bowl that the University provided for use with the mixеr was incompatible with the mixer. Badler‘s injury occurred when the bowl became dislodged and its sharp-edged handle cut his finger. As a result of the injury, Badler required significant medical treatment and has experienced pain, lost wages, and permanent impairment.
[¶3] Badler filed a complaint on October 29, 2019, alleging that the University acted negligently in providing him with a dangerous mixer, which resulted in a severe injury to his finger. The University moved for summary judgment, claiming immunity from liability based on the MTCA,
II. DISCUSSION
[¶4] The sole issue on appeal is whether the court erred in granting the University‘s motion for summary judgment based on its conclusion that the mixer is not within the MTCA‘s exception for negligence related to “[o]ther machinery or equipment, whether mobile or stationary.”
[¶5] “We review a grant of a motion for summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party.” Klein v. Univ. of Me. Sys., 2022 ME 17, ¶ 6, 271 A.3d 777. “A grant of summary judgment will be affirmed if there are no genuine issues of material fact and the undisputed facts show that the prevailing party was entitled to a judgment as a matter of law.” Id. “Absent a dispute of material fact, whether оr not a governmental entity is entitled to immunity is a question of law that we review de novo.” McDonald v. City of Portland, 2020 ME 119, ¶ 11, 239 A.3d 662.
[¶6] “The MTCA provides immunity to all governmental entities from suit on all tort claims seeking recovery for damages, except as otherwise expressly provided by statute.” New Orleans Tanker Corp. v. Dep‘t of Transp., 1999 ME 67, ¶ 4, 728 A.2d 673 (quotation marks omitted). In crafting the MTCA, the Legislature took an “exception-to-immunity” approach, instead of an “exceptiоn-to-liability” approach, and we have thus construed the exceptions narrowly. Id. ¶ 5 (quotation marks omitted); see Klein, 2022 ME 17, ¶ 8, 271 A.3d 777 (“We construe this waiver strictly in order to adhere to the Legislature‘s directive that immunity for a governmental entity remains the general rule.“). Title
1. Ownership; maintenance or use of vehicles, machinery and equipment. A governmental entity is liable for its negligent acts or omissions in its ownership, maintenance or use of any:
A. Motor vehicle, as defined in
Title 29-A, section 101, subsection 42 ;B. Special mobile equipment, as defined in
Title 29-A, section 101, subsection 70 ;C. Trailers, as defined in
Title 29-A, section 101, subsection 86 ;
D. Aircraft, as defined in
Title 6, section 3, subsection 5 ;E. Watercraft, as defined in
Title 12, section 1872, subsection 14 ;F. Snowmobiles, as defined in
Title 12, section 13001, subsection 25 ; andG. Other machinery or equipment, whether mobile or stationary.
[¶7] We have on several occasions addressed the meaning of section 8104-A(1)(G)‘s provision concerning “[o]ther machinery or equipment, whether mobile or stationary.” In McNally v. Town of Freeport, we held that a hypodermic syringe used to draw blood from the plaintiff did not fall within the section 8104-A(1)(G) exception. 414 A.2d 904, 905-06 (Me. 1980). We “cautiously applied the interpretive principle of ejusdem generis in which thе meaning of general words of a phrase is limited to things or items of the same general class as those expressly mentioned.” New Orleans Tanker, 1999 ME 67, ¶ 7, 728 A.2d 673. Accordingly, we explained that, to fall within the exception, a device “must, as a result of its negligent
[¶8] In New Orleans Tanker, we concluded that a drawbridge leaf did not fall under the “[o]ther machinery or equipment” exception. 1999 ME 67, ¶¶ 2, 14, 728 A.2d 673. We noted that the items enumerated in section 8104-A(1)(A) through (F) have qualities in common:
It is readily apparent that the listed items in section 8104-A(1)(A) through (F) are items capable of transportation. They are mobile and likely to come into contact with the general public. Most are fairly ordinary transportation devices with which people have a fair degree of familiarity. Accidents with these items are common, and insurance is readily available. . . .
. . . The major risk from the negligent use of vehicles with thе power to move is that they will be driven or transported in locations where the general public is exposed to the possibility of a collision and resulting harm.
New Orleans Tanker, 1999 ME 67, ¶¶ 8-9, 728 A.2d 673. We declined to determine precisely how the phrase “whether mobile or stationary” affects the meaning of the “[o]ther machinery or equipment” exception, but we explained that the phrasе does not enlarge the exception “such that the phrase encompasses all the innumerable machines and equipment which governmental units could conceivably own or use.” Id. ¶ 11.
[¶ 9] We have interpreted section 8104-A(1)(G) on other occasions, but none of them involved machinery or equipment that presented a risk of injury remotely similar to that presented by thе machines and equipment listed in sections (A) through (F). See Reid v. Town of Mount Vernon, 2007 ME 125, ¶¶ 4, 25-27, 932 A.2d 539 (in-ground dumpster); Petillo v. City of Portland, 657 A.2d 325, 327 (Me. 1995) (golf course sprinkler system); J.R.M., Inc. v. City of Portland, 669 A.2d 159, 161 (Me. 1995) (fire protection system); Harris v. City of Old Town, 667 A.2d 611, 612-13 (Me. 1995) (railroad tracks).
[¶10] In arguing that the kitchen mixer falls under the “[o]ther machinery or equipment” exception, Badler effectively asks us both to depart from our precedent and to ignore our obligation to construe the MTCA‘s exceptions to immunity strictly. See, e.g., New Orleans Tanker, 1999 ME 67, ¶ 5, 728 A.2d 673. Under Badler‘s interpretation of the statute, a governmental entity would be liable for injury caused by virtually any machine or piece of equipment with a motor. But if the Legislature had intended the “[o]ther machinery or equipment” exception to reach so broadly, it would have had no reason to enumerate separately the motorized machines and equipment in subsections (A) through (F) of section 8104-A(1). In other words, Badler‘s interpretation would convert most of sеction 8104-A(1) into surplusage. See Riemann v. Toland, 2022 ME 13, ¶ 28, 269 A.3d 229 (“[N]o words [in a statute] are to be treated as surplusage if they can be reasonably construed.” (quotation marks omitted)).
[¶11] We cannot conclude that a kitchen mixer falls within the same general class as the items enumerated in section 8104-A(1)(A) through (F). Other than being a machine, the mixer does not meet the criteria we defined in New Orleans Tanker: it is not a transportation device, it is unlikely to be transported, it is unlikely to come into contact with the general public, and it is unlikely to be covered by an insurance
[¶12] The mixer also poses a risk of injury different from the risk associated with the items in section 8104-A(1)(A) through (F). See New Orleans
Tanker, 1999 ME 67, ¶ 9, 728 A.2d 673. Although a mixer does pose a risk of injury, that risk is inherently different than the risk associated with, for example, a motor vehicle. See
[¶13] Badler contеnds that the phrase “whether mobile or stationary” within section 8104-A(1)(G) supports his argument that our interpretation of the “[o]ther machinery or equipment” exception is unduly narrow, but we do not agree. The phrase might simply mean that transportation-related machinery or equipment need not be moving at the relevant time in order for the exception to immunity to apply. In any case, we have said previously that the phrase “whether mobile or stationary” does not enlarge the meaning of section 8104-A(1)(G) so as to encompass all machinery or equipment. New Orleans Tanker, 1999 ME 67, ¶ 11, 728 A.2d 673. Because the mixer does not pose a similar risk and is not in “the same general class as [the items] expressly mentioned” in
[¶14] Our conclusion comports with over forty years of precedent. That the Legislature has never amended
The entry is:
Judgment affirmed.
JABAR, J., dissenting.
I. INTRODUCTION
[¶15] I respectfully dissent because the Court, following the holding in New Orleans Tanker Corp. v. Dep‘t of Transp., unnecessarily limits the scope of the exception to immunity in
[t]he Court limits equipment in section 8104-A(1)(G) to items capable of transportatiоn and thereby renders our traditional test analyzing the risks resulting
from negligent use superfluous. . . . Pursuant to this Court‘s analysis . . . if an item is incapable of transportation, then it does not fall within section 8104-A(1)(G) and our traditional “risk analysis” is unnecessary.
New Orleans Tanker, 1999 ME 67, ¶ 18, 728 A.2d 673 (Dana, J., dissenting).
[¶16] Today, the Court follows the approach of New Orleans Tanker and limits the analysis to items related to transportation. The Court states that
[o]ther than being a machine, the mixer does not meet the criteria we definеd in New Orleans Tanker: it is not a transportation device, it is unlikely to be transported, it is unlikely to come into contact with the general public, and it is unlikely to be covered by an insurance policy.
Court‘s Opinion ¶ 11. I believe this approach is too limited and is not mandated by the statute, legislative history, or case law.
II. DISCUSSION
A. General Public
[¶17] The Court first states that the industrial kitchen mixer that injured Badler does not fall under thе exception to immunity established in section 8104-A(1)(G), in part because the mixer “is unlikely to come into contact with the general public.” Court‘s Opinion ¶ 11. Nowhere in the MTCA does the statute condition immunity on whether the item comes into contact with the public. See
the public comes into contact with governmental vehicles of the type enumerated in the statute.” New Orleans Tanker, 1999 ME 67, ¶¶ 8-9, 728 A.2d 673.
[¶18] This case highlights the flaw with this aspect of the analysis. Here, Badler was employed by Sodexo, a company that provides food and dining services to the University. Badler is not a University employee, but neither is he a student, faculty member, or guest of the University. The record does not establish his precise role, so this reason should not serve as a bar to compensation, especially when the MTCA does not condition liability on whether the injured party is a member of the generаl public.
B. Availability of Insurance
[¶19] The Court then asserts, again relying on New Orleans Tanker, that the industrial mixer is not likely covered by an insurance policy. Court‘s Opinion ¶ 11; see New Orleans Tanker, 1999 ME 67, ¶ 8, 728 A.2d 673. The record reveals, however, that the University was insured under a “United Educators Buffer Excess Liability Insurance Policy.” The availability of liability insurance should be a crucial factor for courts to consider when determining whether a governmental entity is immune from suit. “The Legislature intended the MTCA to servе as both sword and shield. It empowers citizens to obtain
compensation when they are injured by certain enumerated negligent acts. The acts are those for which [governmental entities] . . . can obtain reasonably priced liability insurance. . . . At the same time, the MTCA shields government entities from excessive tort liability.” Klein v. Univ. of Me. Sys., 2022 ME 17, ¶¶ 19-20, 271 A.3d 777 (Jabar, J., dissenting). This intent is evident from the MTCA‘s legislative history. The entire аct was premised on a compromise between
C. Risk Analysis
[¶20] Finally, the Court disregards our traditional risk analysis by unduly focusing on the dissimilarities between the items enumerated in
(watering system); Harris, 667 A.2d at 613 (railroad tracks); J.R.M., 669 A.2d at 161 (fire protection system).
[¶21] Admittedly, Harris and J.R.M. muddy the analysis because, in addition to citing the risk test from McNally, the Court also compared the tоrtious object itself to other objects. See Harris, 667 A.2d at 613 (comparing railroad tracks to “the specific items enumerated in section 8104-A(1)(A)-(F)“); J.R.M., 669 A.2d at 161 (comparing a fire protection system to “a hypodermic syringe [and] a golf course sprinkler system” (citation omitted)). The proper analysis, as mentioned above, compares the risk posed by the tortious object to the risk posed by the items enumerated in section 8104-A(1)(A)-(F). Put another way, the analysis compares risk to risk, not risk to object or object to object. My concern, therefore, lies with the Court‘s
[¶22] Moreover, as this Court has previously noted, Delawarе modeled its governmental immunity statute on the Maine Tort Claims Act.4 New Orleans Tanker, 1999 ME 67, ¶ 13, 728 A.2d 673; Fiat Motors of N. Am. v. Wilmington, 498 A.2d 1062, 1067 n.8 (Del. 1985). In New Orleans Tanker, this Court cited the Delaware case Triple C Railcar Serv. v. City of Wilmington to support the proposition that
[¶23] Furthermore, Delaware premised its tort-claims-act case law on McNally, which is at odds with New Orleans Tanker and this Court‘s decision today. See, e.g., Sadler v. New Castle Cnty., 565 A.2d 917, 923 (Del. 1989); Fiat Motors, 498 A.2d at 1067 n.8. In McNally we said, “All definitions are perilous. Pаrticularly since the legislative history of this statute is far from clear. . . .” 414 A.2d at 906 & n.3. That reasoning remains true today and supports the use of a risk-based test for determining whether an object should fall within the catch-all provision of section 8104-A(1)(G).
[¶24] I would vacate the trial court‘s order and remand to the trial court to consider whether the risk of injury resulting from the negligent operation of the industriаl mixer is comparable to the risk of injury arising from the negligent operation of the items enumerated in section 8104-A(1). The trial court did not undertake any such analysis and instead limited its discussion to whether the motorized industrial mixer was related to transportation. In deciding this mixed question of fact and law, the trial court should have considered at least the following risk-based factors: whether the industrial mixer is motorized, how big it is, how a person
Christiane D. Williams, Esq. (orally), Mann Law, LLC, Yarmouth, for appellant Eric Badler
Laura A. Maher, Esq. (orally), Monaghan Leahy, LLP, Portland, for appellee University of Maine System
Stephen W. Koerting, Esq., and Shea H. Watson, Esq., Kelly, Remmel & Zimmerman, Portland, for amicus сuriae Maine Trial Lawyers Association
Franklin County Superior Court docket number CV-2019-21
FOR CLERK REFERENCE ONLY
Notes
“Special mobile equipment” means a motor vehicle with permanently mounted equipment not designed or used primarily for the transportation of persons or property. “Special mobile equipment” includes, but is not limited to, road construction or maintenance machinery, ditch-digging apparatus, stone crushers, air compressors, power shovels, cranes, graders, rollers, trucks used only to рlow snow and for other duties pertaining to winter maintenance, including sanding and salting, well drillers and wood-sawing equipment or similar types of equipment.