Bussell v. City of Portland
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 103
Docket:	Cum-99-81
Submitted 
on Briefs:	June 17, 1999
Decided:	June 30, 1999	

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.

JACK BUSSELL et al.{1}

v.

CITY OF PORTLAND

WATHEN, C.J.

	[¶1]  The City of Portland appeals from an order entered in the
Superior Court (Cumberland County, Cole, J.) denying its motion to dismiss
plaintiffs' claim against it for damages pursuant to the Maine Tort Claims
Act, 14 M.R.S.A. §§ 8101-8118 (1980 & Supp. 1998).  The City contends
that the court erred in ruling that the City's operation of a sound system in
the Portland Exposition building could constitute the "operation of a public
building" within the exception set forth in 14 M.R.S.A. § 8104-A(2) (Supp.
1998) to the general immunity provided governmental entities pursuant to
14 M.R.S.A. § 8103 (1980).  For purposes of a 12(b)(6) motion to dismiss,
we consider the material allegations of the complaint as admitted and
review the complaint in the light most favorable to the plaintiffs to
determine whether it sets forth elements of a cause of action or alleges facts
that would entitle the plaintiffs to relief pursuant to some legal theory. See
J.R.M., Inc. v. City of Portland, 669 A.2d 159, 161 (Me. 1995) (citing McAfee
v. Cole, 637 A.2d 463, 465 (Me. 1994)).  
	[¶2]  The review of a claimed exception to governmental immunity
often requires, as it does here, a close examination of the individual facts of
the case.  Accordingly, in order to avoid the time and expense of multiple
appeals, parties should be sparing in their use of Rule 12(b)(6) to test the
sufficiency of a complaint when resolution of the motion requires analysis of
a claimed exception to governmental immunity.{2}
	[¶3]  Strictly as a matter of pleading, we cannot determine beyond
doubt that plaintiffs are entitled to no relief under any set of facts they might
prove to support their claim.  See id. (citations omitted).  On the record
before us, we cannot say that the use or operation of the sound system could
never constitute the operation of a public building within the meaning of 14
M.R.S.A. § 8104-A(2) (Supp. 1998).
	The entry is:
		Judgment affirmed.
Attorney for plaintiffs:
	
Seth Berner, Esq.	
P O Box 4809	
Portland, ME 04112	

Attorney for defendant:	

Donna M. Katsiaficas, Esq.
Associate Corporation Counsel
389 Congress Street
Portland, ME 04101-3509

FOOTNOTES******************************** {1} . The other plaintiffs are Fay Bussell, Sigalit Rupert, Erwin Rupert, Walter Fleury, Fred Roberts, and Seth Berner. Arthur H. Stephenson III was named as a defendant, but all counts involving him were dismissed by the court. {2} . See, for example, Webb v. Haas, in which we affirmed an interlocutory order by the trial court denying the defendant's motion to dismiss under Rule 12(b)(6), see 665 A.2d 1005, 1008-11 (Me. 1995), but later mandated entry of summary judgment after the defendant's second appeal, based in part on a determination that the defendant was entitled to qualified immunity under 42 U.S.C. § 1983. See 1999 ME 74, ¶ 10, 728 A.2d 1261, 1266.