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STATE OF MAINE CUMBERLAND, ss.

SUPERIOR COURT CIVIL ACTION DOCKET NO: CV-09-248
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FRANCIS, DONNA and MEGHAN LATANOWICH Plaintiffs,
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MICHAEL A. BRYA~~ME 't~~ CUT MEAT MAR~~NS~a1~ THE COMMERCE INSU~NCE~~~ COMPANY, ~CJ'y

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ORDER

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Defe~nts


Plaintiffs Francis, Donna, and Meghan Latanowich have brought suit against defendants Michael A. Bryant, Prime Cut Meat Market, Inc., and the Commerce Insurance Company in connection with an altercation between Mr. Bryant and Mr. Latanowich in the summer of 2007. Prime Cut Meat Market, Inc., moves for summary judgment on the plaintiffs' respondeat superior claim. The plaintiffs oppose the motion, and request leave to supplement their existing opposition with new, recently discovered facts. These facts are immaterial to the legal issues currently before the court and allowing the plaintiffs to supplement their opposition would be futile. As such, their motion to supplement is denied and Prime Cut's motion for summary judgment is granted.

BACKGROUND
Prime Cut Meat Market, Inc., is a Maine corporation that was formed in 2007. (PI.'s CampI. 14; Opp. S.M.F. 12.) Michael A. Bryant invested between $40,000 and $50,000 in the corporation at its inception and co-owns the business with Laurie Pelletier. (Opp. S.M.F. 1<][2-4.) Prime Cut had four employees,
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including Mr. Bryant and Ms. Pelletier. (Opp. S.M.F. <[ 7.) Ms. Pelletier would pay Mr. Bryant an hourly wage for his work. (Opp. S.M.F. err<[ 6, 11.) Mr. Bryant used his personal truck for business purposes and it was decorated with Prime Cut's logo. (Opp. S.M.F. <[err 9-13.) Mr. Bryant also had a key to Prime Cut's storefront. (Opp. S.M.F. err 14.)

In 2007, Mr. Bryant spent Labor Day weekend with his son and some
friends at the Kokotosi Campground. (Supp. S.M.F. err 6.) On Monday, September 3, he and his son left the campground in his truck with his personal trailer in tow. (Supp. S.M.F. <[ 7.) Mr. Bryant took a detour on his way home to stop at Prime Cut's storefront. (Opp. S.M.F.
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18, 21.) The store was not open that day,

and he wanted to see that it was secure and verify that the coolers were operating properly. (Opp. S.M.F. err 19.) He may also have expected to meet with Ms. Pelletier regarding Prime Cut's business. (Pl.'s M. to Suppl. at 2.) As Mr. Bryant was driving from the campground on a two-lane road, Francis Latanowich came up behind him and passed the truck and trailer. (Supp. S.M.F. err 11; Exh. A, Bryant Depo. at 65-66.) Mr. Bryant testifies that Mr. Latanowich passed him illegally at a curve and caused an oncoming vehicle to go off the road, while Mr. Latanowich claims that he passed legally and did not endanger any other drivers. (Exh. A, Bryant Depo. at 65-70.) The parties came to a stoplight and Mr. Bryant exited his vehicle to confront Mr. Latanowich. (Supp. S.M.F. en 11.) A physical altercation ensued, which both parties claim the other started. (Supp. S.M.F.
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Approximately fifteen years before the incident with Mr. Latanowich, Mr. Bryant had been convicted of assault in connection with a barroom brawl and served forty-eight hours. (Opp. S.M.F. err 23; Exh. A, Bryant Depo. at 85-86.) Mr.
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Bryant had also been involved in a confrontation with police stemming from a dispute with his former wife. (Opp. S.M.F.

124.)

On April 30,2009, Mr. Latanowich, together with his wife and daughter, filed a complaint against Mr. Bryant alleging assault and battery, false imprisonment, negligence, and both intentional and negligent infliction of emotional distress. The complaint also named Prime Cut as a defendant under the theory of respondeat superior, alleging that Mr. Bryant was acting wi thin the scope and course of his employment during the incident. Prime Cut seeks summary judgment in its favor. DISCUSSION 1. Plaintiffs' Motion to Supplement Their Opposition to Defendant's

Motion for Summary Judgment The plaintiffs seek to add additional statements of fact to their opposition. These bcts stem from Mr. Bryant's answers to an interrogatory propounded by Prime Cut. It appears that Mr. Bryant exchanged multiple phone calls with Ms. Pelletier and her brother, Dana Pelletier, on September 3, 2007. This allegedly "further supports the notion that [Mr.] Bryant was traveling on the particular route and at the particular time on his way from the Kokatosi Campground on Septemer 3, 2007 ... in order to conduct Prime Cut business." (Pl.'s M. to Suppl. at 2-3.) These alleged facts are duplicative. Prime Cut has already admitted that Mr. Bryant was driving to Prime Cut's storefront for business purposes at the time of the accident. (See Opp. S.M.F.

11 15-19, 21-22.) Furthermore, they are

immaterial to the resolution of the motion for summary judgment as discussed below. The plaintiffs' motion to supplement is denied.

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2.

Defendant Prime Cut's Motion for Summary Judgment Summary judgment is appropriate where there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); see also Levine v. R.B.K. Caly Corp., 2001 ME 77, en 4, 770 A.2d 653, 655. Any ambiguities "must be resolved in favor of the non-moving party."

Beaulicu v. TIle AulJc Corp., 2002 ME 79, err 2, 796 A.2d 683, 685 (citing Greeu v. Cessna Aircmft Co., 673 A.2d 216, 218 (Me. 1996)). Here the parties agree to
disagree about who started the fight, so for the purpose of this motion the court will assume that Mr. Bryant threw the first punch. Mr. Latanowich claims there is a material dispute of fact as to whether Mr. Bryant was acting within the scope of his employment during the incident because he was tr,lVeling to Prime Cut's storefront for a commercial purpose. Prime Cut contends that Mr. Bryant's alleged intentional torts fall outside the scope of his employment as a matter law and it should thus be dismissed from this action. Maine has adopted the Second Restatement of Agency's test to determine whether an employer should be held vicariously liable for the actions of an employee. Spcncer v. V.I.?, fnc., 2006 ME 120, err 6, 910 A.2d 366, 367. An employer will only be liable for the employee's torts if they occur "within the scope of employment." fd. (citing Mallar v. StoneWood Trmzsp., 2003 ME 63,

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823 A.2d 540, 544). An employee's action occurs within the scope of employment if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limi ts; (c) it is actuated, at least in part, by a purpose to serve the master, and (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
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(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master. Restatement (Second) of Agency

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