Preview:

UNITED STATES DISTRICT COURT DISTRICT OF MAINE WILLIAM MAGRUDER, ) ) Plaintiff ) ) v. ) Civil No. 99-0077-B ) ANTHONY SAWYER, ) ) Defendant ) __________________________________________________________________ CHRISTINE ANDERSON, ) ) Plaintiff ) ) v. ) Civil No. 99-0088-B ) WILLIAM MAGRUDER, ) ) Defendant ) RECOMMENDED DECISION This action arose after Anthony Sawyer and his fiancee, Christine Anderson, paid to attend a party held on property owned by William Magruder. During the party, it is alleged that Anderson was physically assaulted by other party goers, and Magruder himself, and that Sawyer witnessed the assaults and ultimately intervened to prevent further injury to Anderson. Plaintiff Christine Anderson moves to strike Defendant William Magruder's fifth affirmative defense and to dismiss Counts I and II of Magruder's counterclaim. For the

foregoing reasons, I hereby recommend the Motion to Strike and/or Dismiss be DENIED. Anderson moves to strike Magruder's fifth affirmative defense and to dismiss Count II of the counterclaim on the grounds that the document Magruder asserts is a release and indemnification agreement should not be so construed in this instance.1 Anderson acknowledges that analysis of this question requires a factual investigation to determine the intent of the contracting parties. Pltf. Mem. at 5 (quoting Buckley v. Basford,, 184 F. Supp. 870 (D. Me. 1960)). Further evidence that additional

development of the facts is necessary is found in Anderson's assertion that "it will become evident" through discovery that "there was no discussion regarding negligence or indemnification," Pltf. Mem. at 6, and Anderson's "allegation of Defendant'[s] misrepresentation in obtaining the release." Pltf. Mem. at 7. Anderson has also indicated that she "is in the process of initiating discovery and she expects at some point that a properly filed Motion for Summary Judgment will be submitted to the Court." Pltf. Mem. at 9. I recommend the question of the validity of the release and

indemnification agreement be addressed in that context, and that this Motion to Strike Affirmative Defense Number 5, and Dismiss Count II of the Counterclaim, be DENIED.

In the alternative, Anderson argues that the Maine Law Court would find the document imposes a mutual duty to release and indemnify. There is no need to address this argument at this time. 2

1

Anderson next argues that Magruder fails to state a claim in Count I of the Counterclaim. Anderson reads Count I as asserting claims for battery, intentional and negligent infliction of emotional distress, and punitive damages. Magruder responds that Count I was intended only to state a claim for battery. Anderson asserts Magruder has failed to state a claim for battery because there is no allegation that the contact was without consent. Pltf. Mem. at 9 (citations omitted). Although the Court agrees that the standard in Maine provides that "consent vitiates the tort" of battery, DONALD N. ZILLMAN, ET AL., MAINE TORT LAW,

Download ewb_1-99cv77_magruder-sawyer_doc33_dec.pdf

Maine Law