Developments in Tort Law 2012: Three Significant Cases for the Plaintiff’s Bar
Written by Alicia F. Curtis
The Law Court Clarifies and Expands the Scope of Two Causes of Action
Is a manufacturer of food products liable for a substance found in the food that is dangerous but occurs naturally? Is it possible to have a privacy interest in a house you don’t occupy? In two separate cases in 2012, the Law Court looked to the Restatement of Torts to answer questions about the scope of a defendant’s liability in tort, and provided answers that broke new ground for plaintiffs.
In Estate of Stanley Pinkham v. Cargill, Inc., the Law Court was faced with the question of whether Maine’s strict liability statute required a change to the state’s traditional common law test defining when a manufacturer or seller is liable for a substance found in a food product. 2012 ME 85, 55 A.3d 1. The Court reasoned that because the statute was fashioned after the Restatement (Second) of Torts § 402A, the Court should follow the comments under that section. The comments look to the expectations of the ordinary consumer in defining when a 35″>product is defective. Based on this analysis, the Law Court adopted the ‘reasonable expectation’ test, which defines a food product as defective when it contains a substance the consumer would not reasonably expect to find in the product. In the same decision, the Law Court incorporated into Maine law section 3 of the Restatement (Third) of Torts: Product Liability. This section allows a jury to infer that the product was defective when the harm to the plaintiff was of the sort ordinarily caused by a product defect, and the harm was not entirely due to some other cause. Applying those two rules to the case, in which the plaintiff suffered an esophageal perforation after eating processed turkey meat that contained shards of bone, the Law Court vacated a summary judgment against the plaintiff.
The Restatement (Second) of Torts figured prominently in the Law Court’s decision in Lougee Conservancy v. CitiMortgage, Inc. that a plaintiff can have a privacy interest in a home she does not occupy. 2012 ME 103, 48 A.3d 774. An agent of the defendant had entered a home and barn in which the plaintiffs had an equitable interest as trust beneficiaries. The agent entered the buildings, rummaged through property, and then locked the plaintiffs out of the home and barn, mistaking the buildings for entirely different property that was in foreclosure. Noting that Comment b to the Restatement (Second) of Torts § 652B describes a search through private, personal possessions such as a safe, wallet, or personal mail as an invasion of privacy interest, the Law Court held that the house and barn were a type of private, personal possession and that the plaintiffs did have a privacy interest in them, even though they did not occupy the home.
More Deference to the Jury on the Issue of Proximate Cause
In a counterpoint to an earlier 2009 decision, the Law Court in McIlroy v. Gibson’s Apple Orchard signaled more deference to the factfinder’s role in deciding the issue of proximate cause. In the earlier decision, Addy v. Jenkins, the plaintiff had fallen and injured himself during the course of performing construction work on a building. 2009 ME 46; 969 A.2d 935. The defendant had erected three story staging on the building for use in the construction project, but had not installed rails, platforms, or ladders on the staging in the plaintiff’s work area. Because the plaintiff lost consciousness when he fell, he could only remember that he had fallen while climbing down the staging; he could not remember exactly how or why he fell. The Law Court upheld summary judgment for the defendant, due to the lack of direct evidence on the issue of proximate causation. Justices Silver and Levy pointed out in their dissent that a jury could reasonably infer that the lack of stairs, railing, and platform more probably than not caused the fall—yet the majority labeled that inference as impermissible speculation.
The plaintiff in McIlroy v. Gibson’s Apple Orchard faced similar challenges in establishing proximate causation. 2012 ME 59, 43 A.3d 948. He had the right of way as he proceeded through an intersection on his motorcycle, and was injured after he swerved to avoid a motorist who had pulled into the intersection, or seemed to be pulling into the intersection. Defendant Gibson’s Apple Orchard had placed an eight foot square temporary wooden sign near the intersection. The exact location of the sign on that date could not be determined, and an expert retained by the motorist could not say that the sign’s location caused the accident. Despite the lack of direct evidence on the location of the sign, the Law Court held that the issue of causation was a question for the jury.
The motorist had testified that when she stopped at one point leading up to the intersection, the sign obstructed her view. When she pulled forward to her final stop just prior to the plaintiff’s evasive action, her view of the intersection was unobstructed. From that evidence, the jury could “find” that the placement of the sign caused the accident. Although the Law Court used the word “find” rather than “infer,” it handed back to the jury its traditional role of inferring causation from conflicting or circumstantial evidence.