Monica L. Semian v. Ledgemere Transportation, Inc. , 2014 Me. LEXIS 157 ( 2014 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 141
Docket: Yor-13-544
Argued: October 9, 2014
Decided: December 16, 2014
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, JABAR, and HJELM,
JJ.
MONICA L. SEMIAN
v.
LEDGEMERE TRANSPORTATION, INC.
HJELM, J.
[¶1] Ledgemere Transportation, Inc. appeals from a judgment entered in the
Superior Court (York County, Fritzsche, J.) in favor of Monica L. Semian. The
judgment was based on a jury verdict finding Ledgemere liable for injuries that
Semian sustained when she rode a bicycle and collided with a bus that it owned
and operated. Ledgemere first contends that pursuant to 29-A M.R.S. § 2070
(2010),1 it cannot be held liable to a cyclist who passes a motorist on the right and
that the court erred in failing to grant its motions for judgment as a matter of law
pursuant to M.R. Civ. P. 50(a), (b). Ledgemere also argues that the court erred in
1
Title 29-A M.R.S. § 2070 has since been amended. P.L. 2013, ch. 241, § 5 (effective Oct. 9, 2013)
(codified at 29-A M.R.S. § 2070 (2013)).
2
declining to instruct the jury on the provisions of 29-A M.R.S. § 2063(2) (2010),2
which prescribes the circumstances when a cyclist must ride on the right side of a
way. We affirm the judgment.
I. BACKGROUND
[¶2] We view the evidence in the light most favorable to Semian. See
Castine Energy Const., Inc. v. T.T. Dunphy, Inc., 2004 ME 129, ¶ 9, 861 A.2d 671.
Monica L. Semian, a twenty-year-old student from Romania, arrived in Ogunquit,
Maine, in June 2010 to work for the summer. On September 9, 2010, Semian was
riding a bicycle on Route 1 in Ogunquit when she was passed by a school bus
owned by Ledgemere and operated by its employee, Marcia Finley. Semian
caught up with the bus when it was stopped at the intersection of Route 1 and
Berwick Road. There, the bus straddled the straight and right-turn lanes, began to
move forward, and then paused. Believing the bus would drive straight, Semian
continued riding and began to pass the bus on the right, intending to go straight.
The bus, however, turned right onto Berwick Road. Unable to stop, Semian hit the
side of the bus and then fell under it, suffering extensive injuries when the wheels
of the bus ran over her torso.
2
Title 29-A M.R.S. § 2063 has since been amended twice. See, e.g., P.L. 2013 ch. 482 § 2 (effective
Aug. 1, 2014) (to be codified at 29-A M.R.S. § 2063 (2014)).
3
[¶3] Semian commenced an action for negligence against both Ledgemere
and Finley in August 2012.3 A five-day jury trial began on September 30, 2013.
After Semian rested her case-in-chief and again at the close of all the evidence,
Ledgemere moved for judgment as a matter of law, see M.R. Civ. P. 50(a), (b),
arguing that pursuant to 29-A M.R.S. § 2070, Semian assumed the risk when she
passed the bus on the right and that Ledgemere cannot be held liable for the
resulting damages. The court denied Ledgemere’s motions.
[¶4] Additionally, at trial Ledgemere requested that the court instruct the
jury on the provisions of 29-A M.R.S. § 2063(2), specifically, that a cyclist
traveling “at a speed less than the normal speed of traffic moving in the same
direction at that time and place shall drive on the right portion of the way as far as
practicable except . . . [w]hen proceeding straight in a place where right turns are
permitted . . . .” The trial court concluded that the statute was inapplicable and
denied Ledgemere’s requested instruction.
[¶5] The jury found that Ledgemere was seventy-five percent negligent and
that Semian was twenty-five percent negligent. Because of Semian’s comparative
negligence, see 14 M.R.S. § 156 (2013), the jury reduced her recoverable damages
from $1,000,000 to $750,000, and the court entered judgment for Semian in that
3
Prior to trial, Semian dismissed her claim against Finley, leaving only the claim against Ledgemere
to be tried.
4
amount. The court denied Ledgemere’s post-trial motion for a new trial and its
renewed motion for judgment as a matter of law. M.R. Civ. P. 50(b), 59.
Ledgemere filed this timely appeal.
II. DISCUSSION
A. Motion for Judgment as a Matter of Law: 29-A M.R.S. § 2070
[¶6] Ledgemere contends that the court erred in denying its motions for
judgment as a matter of law based on the terms of 29-A M.R.S. § 2070. “We
review de novo the denial of a motion for judgment as a matter of law pursuant to
M.R. Civ. P. 50.” McDonald v. Scitec, Inc., 2013 ME 59, ¶ 9, 79 A.3d 374.
[¶7] The evidence that bears on Ledgemere’s motion is undisputed: Semian
passed the bus on the right, collided with the bus, and sustained damages.
Ledgemere’s argument is based on 29-A M.R.S. § 2070(6), which provides in part:
“A person operating a bicycle or roller skis may pass a vehicle on the right at the
bicyclist’s or roller skier’s own risk.” Ledgemere argues here, as it did in the trial
court, that pursuant to section 2070, it cannot be held liable because when Semian
sustained her injuries, she was operating a bicycle and passed the bus on the right,
thereby assuming the risk of injury and absolving it of any liability. We conclude
that section 2070 by itself does not insulate a motorist from liability under these
circumstances.
5
[¶8] Ledgemere’s argument calls for us to construe the meaning of section
2070 and, more particularly, to determine whether it bars a cyclist from recovering
damages for injuries sustained while passing a vehicle on the right. We construe
statutes de novo. Strout v. Cent. Me. Med. Ctr., 2014 ME 77, ¶ 10, 94 A.3d 786.
To determine the meaning of a statute, we consider the plain meaning of its
language and will “look to extrinsic indicia of legislative intent” only if the statute
is ambiguous. Id. (quotation marks omitted). If a statute is “reasonably
susceptible to different interpretations,” then it is ambiguous. Id. (quotation marks
omitted).
[¶9] The plain language of section 2070 is ambiguous because it may be
read to absolve a motorist of liability when a cyclist passes on the right, and
alternatively, it may be read merely to identify the cyclist’s own conduct as a factor
for the fact-finder to consider if that conduct is placed in issue. Because of this
ambiguity, we look to extrinsic information to determine the Legislature’s intent.
[¶10] In effect, Ledgemere argues that section 2070 creates primary
assumption of the risk, which is the “situation in which the defendant is held to
owe the plaintiff no duty because the plaintiff has assumed the risk of his voluntary
6
activities.”4 Merrill v. Sugarloaf Mountain Corp., 2000 ME 16, ¶ 9, 745 A.2d 378.
If this doctrine applied here, Ledgemere would not owe a duty of care to Semian,
because Semian would assume the risk arising from her voluntary conduct.
[¶11] Generally, the Legislature’s enactment of comparative negligence
statutes has supplanted the defense of assumption of the risk. Horton & McGehee,
Maine Civil Remedies, § 16-4(b) at 332, (4th ed. 2004); Merrill, 2000 ME 16, ¶ 9,
n. 3, 745 A.2d 378. However, the Legislature has retained the defense of
assumption of the risk in several specific circumstances, including equine
activities, agritourism, and skiing. See 7 M.R.S. § 4103-A(1) (2013); 7 M.R.S.
§ 252(1) (2013); 32 M.R.S. § 15217(2) (2013).5 For example, Maine’s equine
activities statute states:
1. Liability. Except as provided in subsection 2, an equine activity
sponsor, an equine professional or any other person engaged in an
equine activity is not liable for any property damage or damages
arising from the personal injury or death of a participant or spectator
resulting from the inherent risks of equine activities. Except as
provided in subsection 2, a person may not make any claim or recover
4
Under the doctrine of secondary assumption of the risk, “the defendant’s negligence is already
established, but the plaintiff has proceeded voluntarily to encounter it.” Merrill v. Sugarloaf Mountain
Corp., 2000 ME 16, ¶ 9, 745 A.2d 378. Ledgemere’s argument is not predicated on a concession that it
was negligent. Rather, it contends that, as a matter of law, it cannot be held liable because Semian
assumed the risk of harm when she passed the bus on the right. This argument is therefore based on the
doctrine of primary assumption of the risk, although our conclusion would be the same even if Ledgemere
argued that section 2070 created a defense of secondary assumption of the risk.
5
The agritourism statute, 7 M.R.S. § 252(1) (2013), was not enacted until 2011; however, it mirrors
the language of the skiing and equine activities statutes, further showing that even after the Legislature
enacted section 2070, it still continued to follow the same statutory model when imposing assumption of
the risk on activity participants.
7
from any person for any property damage or damages for personal
injury or death resulting from the inherent risks of equine activities.
Each participant and spectator in an equine activity expressly assumes
the risk and legal responsibility for any property damage or damages
arising from personal injury or death that results from the inherent risk
of equine activities.
7 M.R.S. § 4103-A(1) (emphasis added). The agritourism and skiing statutes
mirror this language. See 7 M.R.S. § 252(1); 32 M.R.S. § 15217(2).
[¶12] These statutes explicitly assign legal responsibility to participants for
their damages when those participants knowingly assume the inherent risks of
these activities, and correspondingly, the statutes expressly and fully shield the
owner or operator from liability to the injured person arising from those risks.
However, the protection from liability can be invoked as a defense in these
contexts only if the participant had been notified both of the inherent risks of the
activity and of the limitations of owner/operator liability. 7 M.R.S. § 252(3);
7 M.R.S. § 4103-A(3); 32 M.R.S. § 15217(3).
[¶13] Section 2070 differs structurally from these statutes in several
material ways. First, unlike the recreational statutes noted above, section 2070
does not expressly protect a motorist against liability to the passing cyclist.
Instead, section 2070 addresses only the conduct of the cyclist without any direct
statement about the effect of her conduct on the motorist’s liability.
8
[¶14] Further, section 2070 does not distinguish between inherent risk and
other risks that, in the statutes governing the activities noted above, would fall
outside of the bar to liability. In an attempt to reconcile this structural difference
between section 2070 and the recreational liability statutes, Ledgemere argues that
if a motorist acts with a high level of culpability to cause an accident with a cyclist
passing on the right, the motorist would not benefit from a defense of assumption
of the risk pursuant to section 2070.
[¶15] Ledgemere’s recognition that section 2070 should not impose an
absolute defense based on assumption of the risk, however, demonstrates why the
statute does not immunize the motorist in the first instance. Unlike the other
statutes noted above, section 2070 does not contain any language that would limit
the scope of protection from liability otherwise afforded to the motorist. To
impose some limitation on any immunity based on assumption of the risk,
Ledgemere would have us graft additional language onto the statute. The
Legislature has enacted laws that include the very type of language that Ledgemere
argues should be read into section 2070. However, despite the Legislature’s
demonstrated ability to enact such a provision in other contexts, that limiting
language is absent from section 2070, and we decline to construe section 2070 as if
the Legislature itself had included that language. See DaimlerChrysler Corp. v.
Exec. Dir., Me. Revenue Servs., 2007 ME 62, ¶ 17, 922 A.2d 465. This means that
9
if, as Ledgemere argues, section 2070 places all risk of injury on the cyclist and
forecloses redress, the statute would create an even broader scope of liability
protection than the statutes that more clearly establish the defense in other
situations. This is a persuasive indication that the Legislature did not intend the
“risk” language in section 2070 to rise to the level of the legal doctrine of
assumption of the risk.
[¶16] Additionally, the statutes creating the defense of assumption of the
risk in recreational contexts predicate that protection on express notification to the
participant about the existence of the risks inherent in that activity and about the
resulting immunity of the facility from liability. That notification assists the
participant in making an informed decision about whether to assume the inherent
risks of that activity. If the facility owner or operator provides the requisite notice
to the consumer, and if the then-informed consumer chooses to proceed with the
activity, she does so with an understanding that she will forfeit a remedy for
injuries caused by the activity’s inherent risks.
[¶17] If Ledgemere’s construction were correct, then the scope of a
motorist’s immunity pursuant to section 2070 would be greater than the scope of
the immunity of an owner or operator under the recreation statutes because, for the
reasons discussed above, section 2070 would not restrict the defense of assumption
of the risk to situations where the motorist engages in ordinary negligent conduct.
10
Further, the motorist would receive that greater scope of protection from liability
even without a corresponding obligation to notify the party who then sustains
injury about the risks. Therefore, in the end, Ledgemere’s construction of section
2070 would give a motorist greater protection than in situations where assumption
of the risk is more clear, with none of the corresponding obligations that the
Legislature has imposed in those other contexts as a condition for the tortfeasor to
receive the benefit of that defense.
[¶18] The Legislature has thereby demonstrated that when it intends to
create the defense of assumption of the risk, it uses a common framework that
clearly creates an exception to the more generally applicable defense of
comparative negligence. Although Ledgemere argues that section 2070 allocates
the entire risk of loss to a cyclist, the statutory framework found in other settings is
not part of section 2070, demonstrating that the Legislature did not intend the
statute to create the defense of assumption of the risk in these circumstances.
[¶19] Further, if section 2070 provided a full defense, as Ledgemere argues,
the provisions of 29-A M.R.S. § 2060(1-A) (2010)6 would be superfluous. Section
2060(1-A) prohibits a motorist who is passing a cyclist from turning right unless
the turn can be made with complete safety. That statute applies here, and in fact,
6
Title 29-A M.R.S. § 2060 has since been amended. P.L. 2013, ch. 241, §§ 2-3 (effective Oct. 9,
2013) (codified at 29-A M.R.S. § 2060 (2013)).
11
without objection from either party, the court instructed the jury about its terms,
because the bus passed Semian shortly before Semian proceeded to pass the bus at
the intersection of Route 1 and Berwick Road. If, as a matter of law, section 2070
prevents cyclists from recovering for injuries sustained while passing on the right,
section 2060(1-A) would be surplusage because the nature of the motorist’s own
conduct would no longer be at issue. We decline to construe section 2070 in a way
that renders section 2060(1-A) meaningless. See Hickson v. Vescom Corp.,
2014 ME 27, ¶ 15, 87 A.3d 704 (“All words in a statute are to be given meaning,
and no words are to be treated as surplusage if they can be reasonably construed.”
(quotation marks omitted)). Instead, sections 2060(1-A) and 2070 can be read
harmoniously if, as we hold here, the latter by itself does not bar a cyclist from
recovering damages incurred while passing a motorist who makes a right-hand turn
in the absence of complete safety. Rather, the conduct of the motorist can be
considered pursuant to section 2060(1-A), and the conduct of the cyclist can be
considered pursuant to section 2070.7
[¶20] Section 2070 therefore does not protect a motorist from liability
merely because a cyclist passes on the right. Instead, section 2070 is best seen as a
recognition of the risk that a cyclist creates to her safety when she passes a
7
In fact, the court instructed the jury of Ledgemere’s duty of care pursuant to section 2060(1-A) and
of Semian’s assumption of the risk pursuant to section 2070.
12
motorist on the right, and it confirms for a fact-finder the relevance of a cyclist’s
own responsibility in the event of an accident. Section 2070 did not entitle
Ledgemere to judgment as a matter of law, and the court correctly denied its
motions.
B. Jury Instructions: 29-A M.R.S. § 2063
[¶21] Semian next argues that the court erred by declining to instruct the
jury on the provisions of 29-A M.R.S. § 2063(2) and by denying its motion for a
new trial based on that ruling.
[¶22] At the time pertinent to this action, section 2063 provided:
Riding to the right. A person operating a bicycle or roller skis upon
a roadway at a speed less than the normal speed of traffic moving in
the same direction at that time and place shall drive on the right
portion of the way as far as practicable except when it is unsafe to do
so or:
A. When overtaking and passing another roller skier, bicycle or other
vehicle proceeding in the same direction;
B. When preparing for or making a left turn at an intersection or into
a private road or driveway;
C. When proceeding straight in a place where right turns are
permitted; and
D. When necessary to avoid hazardous conditions, including, but not
limited to, fixed or moving objects, vehicles, bicycles, roller skiers,
pedestrians, animals, broken pavement, glass, sand, puddles, ice,
surface hazards or opening doors from parallel-parked vehicles, or a
lane of substandard width that makes it unsafe to continue along the
right portion of the way. For purposes of this paragraph, “lane of
13
substandard width” means a lane that is too narrow for a bicycle or
roller skier and a vehicle to travel safely side by side in the lane.
[¶23] The court declined to instruct the jury on the law set out in this
statute, reasoning that section 2063 “didn’t quite fit the facts of this case in the last
few seconds which really mattered” but that the statute applied “up until a few
seconds before the impact.”8
[¶24] We review a trial court’s denial of a requested jury instruction for
prejudicial error. “[O]n appellate review, a party can demonstrate entitlement to a
requested instruction only where the instruction was requested and not given by the
court and it: (1) states the law correctly; (2) is generated by the evidence in the
case; (3) is not misleading or confusing; and (4) is not otherwise sufficiently
covered in the court’s instructions.” Frustaci v. City of S. Portland, 2005 ME 101,
¶ 15, 879 A.2d 1001 (quotation marks omitted).
[¶25] Section 2063 requires a cyclist to “drive on the right portion of the
way as far as practicable” if the cyclist is traveling “at a speed less than the normal
speed of traffic moving in the same direction at that time and place . . . .” The
legislative requirement that a cyclist must ride on the right, when that duty arises in
the first instance, is then subject to the exceptions enumerated in subsections
2063(2)(A)-(D). Ledgemere argues that those exceptions describe circumstances
8
It appears from the trial transcript that the court and counsel may have engaged in discussions off the
record about Ledgemere’s requested jury instruction based on section 2063. However, we must consider
the issue based on the limited record of the court’s ruling.
14
where a cyclist is prohibited from riding and passing other vehicles on the right,
and instead must ride on some other part of the way. It is undisputed that the
circumstances described in at least one of those exceptions are present: Semian
was driving a bicycle straight in a place where right-hand turns are permitted.
29-A M.R.S. § 2063(2)(C). From this, Ledgemere argues that the court should
have instructed the jury on the terms of section 2063, which would have allowed
the jury to determine that Semian violated that statute because she was riding her
bicycle on the right portion of the road and not elsewhere. Any such violation of
the statute would then constitute evidence of comparative negligence. See Castine
Energy Constr., Inc. v. T.T. Dunphy, Inc., 2004 ME 129, ¶ 10, 861 A.2d 671
(violation of a safety statute is evidence of negligence).
[¶26] Ledgemere’s contention implicates the same familiar principles of
statutory construction we have noted previously. See supra ¶ 8; Strout, 2014 ME
77, ¶ 10, 94 A.3d 786. Here, we need look no further than the plain language of
section 2063(2), because the statute is unambiguous.
[¶27] Ledgemere’s argument is based on a misapprehension of the plain
meaning of section 2063. That statute defines the circumstances when a cyclist
must ride as far as practicable to the right of the way. Beyond that, when those
circumstances are not present, the statute is silent on where the cyclist must ride.
For example, contrary to Ledgemere’s contention, section 2063 does not require a
15
cyclist to ride in or closer to a through lane in a location where right turns are
permitted. Rather, the only affirmative command arising from the provisions of
section 2063 is triggered when (1) the initial conditions of applicability arise (that
is, when the cyclist’s speed is “less than the normal speed of traffic moving in the
same direction at that time and place . . .”); and, (2) when none of the exceptions
described in subsections (A) through (D) applies. In the instances where the
statute controls, then the cyclist must travel to the right. Otherwise, the plain
language of the statute does not direct the cyclist to ride in any particular portion of
the way.
[¶28] The record does not reveal the specific basis for the trial court’s
conclusion that section 2063 was inapposite to the jury’s consideration of Semian’s
comparative negligence. Nonetheless, Ledgemere itself argues that the evidence
establishes at least one of the exceptions to the requirements of section 2063, and a
review of the evidence confirms that view. This is precisely the reason why
section 2063 does not apply at all. Because the evidence necessarily invoked at
least one of the exceptions to the requirements of section 2063(2), the statute is
inapplicable.
[¶29] Although the provisions of section 2063 do not apply to this case,
Ledgemere remained entitled to argue—as it did at trial—that because of the
manner in which she was operating a bicycle, Semian was comparatively
16
negligent, and the jury remained free to consider that affirmative defense. Further,
as is discussed supra, the court properly instructed the jury that a person operating
a bicycle passes other vehicles on the right at her own risk. 29-A M.R.S. § 2070.
However, the court did not err when it declined to instruct the jury on the specific
law as set out in section 2063, and it did not err when it denied Ledgemere’s
motion for a new trial based on its contention that the court erroneously omitted
the section 2063 instruction.9
The entry is:
Judgment affirmed.
On the briefs:
Rebecca S. Webber, Esq., and Stephen B. Wade, Esq., Skelton,
Taintor & Abbott, Auburn, for appellant Ledgemere
Transportation, Inc.
Terrence D. Garmey, Esq., Gary Goldberg, Esq., and David
Kreisler, Esq., Terry Garmey & Associates, Portland, for
appellee Monica L. Semian
H. Ilse Teeters-Trumpy, Esq., Taylor, McCormack & Frame,
LLC, Portland, for amicus curiae Bicycle Coalition of Maine
9
In their arguments on appeal, Ledgemere and Semian contest whether the evidence generated the
initial predicate to section 2063, which focuses on the speed of the bicyclist in relation to “the normal
speed of traffic moving in the same direction at that time and place . . . .” We need not and therefore do
not reach that issue, because the exception created in section 2063(2)(D) is indisputably present and
precludes consideration of the affirmative requirements of section 2063 in any event.
17
At oral argument:
Rebecca S. Webber, Esq., for appellant Ledgemere
Transportation, Inc.
David Kreisler, Esq., for appellee Monica L. Semian
York County Superior Court docket number CV-2012-179
FOR CLERK REFERENCE ONLY