New Orleans Tanker v.D.O.T.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 67
Docket:	Cum-98-530
Argued:	February 3, 1999	
Decided:	April 28, 1999

Panel:	WATHEN, C.J., and RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.
Majority:WATHEN, C.J., and RUDMAN, and CALKINS, JJ.
Dissent:DANA, J., and ALEXANDER, J.

NEW ORLEANS TANKER CORPORATION

v.

DEPARTMENT OF TRANSPORTATION

CALKINS, J.

	[¶1]  New Orleans Tanker Corporation appeals from an order entered
in the Superior Court (Cumberland County, Cole, J.) dismissing its complaint
against the Department of Transportation (DOT) on the basis of sovereign
immunity pursuant to the Maine Tort Claims Act (MTCA), 14 M.R.S.A.
§§ 8101-8118 (1980 & Supp. 1998).  New Orleans contends that the court
erred because its claim against the DOT for the negligent operation of the
bridge leaf machinery on the Portland-South Portland Bridge (Million Dollar
Bridge) falls within a statutory exception, 14 M.R.S.A. § 8104-A, to general
governmental immunity provided by the MTCA.  We disagree and affirm the
judgment.
	[¶2]  In December 1997, New Orleans, the bareboat charterer{1} of the
Overseas New Orleans, filed a complaint against the DOT for the negligent
operation of the bridge leaf machinery on the Million Dollar Bridge.  The
complaint alleged that on December 23, 1995, the Overseas New Orleans
was sailing westbound under the bridge when it came in contact with the
bridge leaf on the Portland side of the bridge.  The complaint charged the
DOT with negligence in the ownership, maintenance, or use of the bridge
machinery by either failing to open the bridge leaf completely or by
dropping the bridge leaf on the vessel.  New Orleans appeals the dismissal of
the complaint pursuant to M.R. Civ. P. 12(b)(6).
	[¶3]  A motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) tests the
legal sufficiency of the complaint.  See Dexter v. Town of Norway, 1998 ME
195, ¶ 7, 715 A.2d 169, 171.  We view the material allegation of the
complaint as admitted and examine the complaint "in the light most
favorable to the plaintiff to determine whether it sets forth elements of a
cause of action or alleges facts that would entitle the plaintiff to relief
pursuant to some legal theory."  Id. (quoting McAfee v. Cole, 637 A.2d 463,
465 (Me. 1994)).  "A dismissal is appropriate only when it appears beyond
doubt that a plaintiff is entitled to no relief under any set of facts that he
might prove in support of his claim."  Id.  The legal sufficiency of a
complaint is a question of law.  See Sargent v. Buckley, 1997 ME 159, ¶ 10,
697 A.2d 1272, 1275.
	[¶4]  The MTCA provides immunity to all governmental entities from
suit on all tort claims seeking recovery for damages, "except as otherwise
expressly provided by statute."  See 14 M.R.S.A. §§ 8103-8104-A.  Section
8104-A provides the exceptions to governmental immunity at issue in this
case:
[A] governmental entity is liable for property damage, bodily
injury or death in the following instances. 

1.  Ownership; maintenance or use of vehicles, machinery and
equipment.  A governmental entity is liable for its negligent acts
or omissions in its ownership, maintenance or use of any:

	A.	Motor vehicle . . . :
	B.	Special mobile equipment . . . ;
	C.	Trailers . . . ;	
		D.	Aircraft . . . ;
	E.	Watercraft . . . ;
	F.	Snowmobiles . . . ;
	G.	Other machinery or equipment, whether
		mobile or stationary.

	[¶5]  In interpreting the statute to determine if the bridge leaf
machinery is included within the meaning of "other machinery or 
equipment," we start from the premise that immunity is the rule and
exceptions to immunity are to be strictly construed.  In Young v. Greater
Portland Transit Dist., 535 A.2d 417, 419 (Me. 1987), we stated that the
MTCA "employed an 'exception-to-immunity' approach rather than an
'exception-to-liability' approach."  We have consistently required the strict
construction of the exceptions to immunity since the enactment of the
MTCA.  See Dubail v. Department of Transp., 1998 ME 126, ¶ 7, 711 A.2d
1301, 1303; Lynch v. Town of Kittery, 677 A.2d 524, 525 (Me. 1996);
Lovejoy v. State of Maine, 544 A.2d 750, 751 (Me. 1988); Clockedile v. State
Dept. of Transp., 437 A.2d 187, 189 (Me. 1981).
	[¶6]  In strictly construing the section 8104-A(1) exceptions to
liability, our decisions have given a narrow interpretation to the phrase
"other machinery or equipment" in section 8104-A(1)(G).  In order for
there to be liability for the negligent use or operation of "other machinery or
equipment," we require that the risk from the negligent use of the "other
machinery or equipment" be comparable to the risk that results from the
negligent use of the vehicles listed in section 8104-A(1)(A) through (F), that
is, motor vehicles, special mobile equipment, trailers, aircraft, watercraft,
and snowmobiles.  See J.R.M., Inc. v. City of Portland, 669 A.2d 159, 161
(Me. 1995). 
	[¶7]  In McNally v. Town of Freeport, 414 A.2d 904, 906 (Me. 1980)
(citation omitted), we said:

Particularly since the legislative history of this statute is far from
clear, we hesitate to announce an all-inclusive construction of
one of its major provisions.  It is sufficient to note that for a
device to come within the meaning of § 8104(1)(G) it must, as a
result of its negligent ownership, maintenance or use, create a
risk of injury to person or property comparable to the risk
created by the negligent ownership, maintenance or use of the
specifically enumerated items of machinery and equipment.

Thus, without expressly stating so, we cautiously applied the interpretive
principle of ejusdem generis in which the meaning of general words of a
phrase is limited to things or items of the same general class as those
expressly mentioned.  See Penobscot Nation v. Stilphen, 461 A.2d 478, 489
(Me. 1983).  The principle of ejusdem generis has been succinctly described
by a leading commentator:  "Where general words follow specific words in a
statutory enumeration, the general words are construed to embrace only
objects similar in nature to those objects enumerated by the preceding
specific words."  2A Norman J. Singer, Sutherland Statutes and Statutory
Construction § 47.17 (5th ed. 1992).
	[¶8]  It is readily apparent that the listed items in section 8104-
A(1)(A) through (F) are items capable of transportation.  They are mobile and
likely to come into contact with the general public.  Most are fairly ordinary 
transportation devices with which people have a fair degree of familiarity. 
Accidents with these items are common, and insurance is readily available. 
They are not machines affixed to a permanent structure which operate a
moving part of that structure. 
	[¶9]  The complaint in this case alleges that the negligent use of the
bridge leaf machinery caused the bridge leaf not to open fully or not to
remain in the open position.  This resulted in damage to the tanker when it
came into contact with the leaf of the bridge.  The risk from the negligent
use of the bridge leaf machinery is not comparable to the risks from the
items listed in section 8104-A(1)(A) through (F).  The major risk from the
negligent use of vehicles with the power to move is that they will be driven
or transported in locations where the general public is exposed to the
possibility of a collision and resulting harm.  Unlike vehicles, the bridge leaf
machinery is part of the bridge; it is affixed to or contained within the
bridge.  Although there may be some risk from the negligent operation or
maintenance of the bridge leaf machinery, it is not comparable to the risks
from the other items.  The general public does not come into contact with
the bridge leaf machinery in the same way that the public comes into
contact with governmental vehicles of the type enumerated in the statute.
	[¶10]  The Legislature did not intend the general phrase "other
machinery or equipment" in section 8104(1)(G) to include all other possible
machinery and equipment that is negligently owned or operated by a
governmental unit and could therefore cause some form of personal injury or
property damage.  If that were the case, there would be no need to list
specific items, such as snowmobiles, and the general term would render the
specific terms surplusage.  It is a well-established principle of statutory
construction that "nothing in a statute may be treated as surplusage if a
reasonable construction . . . is otherwise possible."  Struck v. Hackett, 668
A.2d 411, 417 (Me. 1995) (citation omitted).
	[¶11]  It is true that "other machinery or equipment" contains the
modifying phrase "whether mobile or stationary."  14 M.R.S.A. § 8104-
A(1)(G).  It can be argued that the use of this phrase means that "other
machinery or equipment" cannot be restricted to items similar to those
listed in section 8104(1)(A) through (F), that is, items capable of
transporting people or things or other self-propelled vehicles, and that if we
were to interpret "other machinery or equipment" in such a narrow fashion,
we would be negating the phrase "mobile or stationary."  The latter phrase,
however, is as ambiguous as the first.  It could refer to machinery or
equipment capable of movement whether moving or stationary at the time of
the negligence, or it could refer to machinery or equipment that has no
capacity for movement and is always stationary.  For the purposes of this
case, it is not necessary to decide what "mobile or stationary" means; it is
sufficient to state that the phrase "mobile or stationary" does not enlarge
"other machinery or equipment" such that the phrase encompasses all the
innumerable machines and equipment which governmental units could
conceivably own or use.  "Other machinery or equipment whether mobile or
stationary" must be in the same general class as the listed items in section
8104-A(1)(A) through (F).  
	[¶12]  Further support that the Legislature did not intend for a
governmental unit to be liable for the negligent operation of bridge leaf
machinery can be found in the legislative history to the MTCA.  The original
bill included a provision that liability could attach for "a dangerous, unsafe or
defective condition . . . created in the construction, operation or
maintenance . . . of any bridge."  L.D. 87 (108th Legis. 1977).  This relevant
language, however, was deleted before enactment.  See L.D. 162 (108th
Legis. 1977).  One of the senators explained that the provision was removed
to avoid high insurance costs.  See 1 Legis. Rec. 71 (1977).
	[¶13]  Finally, case law from Delaware, a jurisdiction that modeled its
governmental immunity statute on the MTCA, also provides support for
interpreting "other machinery or equipment" narrowly.{2}  See Triple C.
Railcar Serv. Inc. v. City of Wilmington, 630 A.2d 629, 631 (Del. 1993).  The
Delaware statute provides:

A governmental entity shall be exposed to liability for its
negligent acts or omissions causing property damage, bodily
injury or death in the following instances:  (1) In its ownership,
maintenance or use of any motor vehicle, special mobile
equipment, trailer, aircraft or other machinery or equipment,
whether mobile or stationary. 

Del. Code Ann. tit. 10 § 4012(1) (Supp. 1998).  The Triple C. Railcar case
involved a tidegate whose purpose was to keep high tides from the flood
areas of the Delaware River.  It was alleged that the City of Wilmington failed
to properly maintain the tidegate, and, because of the negligent
maintenance, flooding occurred and caused damage to the plaintiff's
property.  See Triple C. Railcar, 630 A.2d at 630.  The Delaware Supreme
Court noted that it had previously utilized the principle of ejusdem generis
to interpret "other machinery or equipment," and concluded that the
equipment exception to immunity could not be allowed to "swallow the
rule" and was limited to machinery or equipment that posed risks to the
public because of its high mobility or inherent dangerousness.  See id. at
631-32.  It held that the tidegate was not included within the term "other
machinery or equipment."  Id. at 632.
	[¶14]  Strictly construing the exceptions to immunity, we do not agree
that the bridge leaf machinery is included within the phrase "other
machinery or equipment," in 14 M.R.S.A. § 8104-A(1)(G).  Therefore, the
trial court did not err by dismissing the complaint.
	The entry is
			Judgment affirmed.
DANA, J., with whom ALEXANDER, J., joins, dissenting.
	[¶15]  I respectfully dissent.  
	[¶16]  I disagree with the Court's conclusion that "other machinery or
equipment, whether mobile or stationary" must be capable of transportation
like those enumerated items in section 8104-A(1)(A) through (F).  We have
stated, with respect to section 8104-A(1)(G) that "[a]ll definitions are
perilous.  Particularly since the legislative history of this statute is far from
clear, we hesitate to announce an all-inclusive construction of one of its
major provisions."  McNally v. Town of Freeport, 414 A.2d 904, 906 (Me.
1980) (footnote omitted).  The Court's decision does just that by limiting
section 8104-A(1)(G) to items capable of transportation, excluding, among
other items, machinery or equipment affixed to permanent structures.  This
ignores both the intent of the Legislature -- for if it intended to limit section
8104-A(1)(G) to equipment capable of transportation, it could have said so --
and this Court's traditionally cautious approach in defining the scope of
section 8104-A(1)(G).  On four different occasions we have interpreted
whether stationary equipment qualified as "other machinery or equipment,"
and each time we declined to adopt the narrow interpretation endorsed by
the Court today.  See J.R.M., Inc. v. City of Portland, 669 A.2d 159, 161 (Me.
1995) (building's fire protection system); Harris v. City of Old Town, 667
A.2d 611, 613 (Me. 1995) (railroad tracks); Petillo v. City of Portland, 657
A.2d 325, 327 (Me. 1995) (automatic watering system); McNally, 414 A.2d
at 906 (hypodermic syringe).     
	[¶17]  The Court limits the scope of items in section 8104-A(1)(G) to
items capable of transportation, whether moving or stationary at the time of
the negligence.  The definition misconstrues the meaning of the phrase
"whether mobile or stationary."  If the State negligently parks a motor
vehicle on a highway and causes an injury, section 8104-A(1)(A) applies even
though the motor vehicle was not moving at the time of the accident. 
Likewise, if the State negligently operates "other machinery or equipment"
by placing movable equipment on a highway and causing an accident, section
8104-A(1)(G) applies even though the machinery is not moving at the time
of the accident.  Therefore, if the phrase "whether mobile or stationary"
means "moving or stationary at the time of the negligence," then it is
redundant.  Instead, I would interpret the phrase "whether mobile or
stationary" to include machinery or equipment that is incapable of
movement and always stationary.
	[¶18]  The Court limits equipment in section 8104-A(1)(G) to items
capable of transportation and thereby renders our traditional test analyzing
the risks resulting from negligent use superfluous. The traditional test for
determining if an item falls under section 8104-A(1)(G) is as follows:  is the
risk posed by the negligent ownership, maintenance or use of the item at
issue comparable to the risk that results from the negligent ownership,
maintenance or use of a motor vehicle, special mobile equipment, trailer,
aircraft, watercraft, or snowmobile.  See J.R.M., Inc., 669 A.2d at 161;
Harris, 667 A.2d at 613; Petillo, 657 A.2d at 327; McNally, 414 A.2d at 906. 
Pursuant to this Court's analysis set forth today, however, if an item is
incapable of transportation, then it does not fall within section 8104-A(1)(G)
and our traditional "risk analysis" is unnecessary.
	[¶19]  I would not limit "other machinery or equipment, whether
mobile or stationary" to items capable of transportation.  Instead, I would
adhere to our established method of analysis and conclude that the negligent
operation of bridge leaf machinery poses risks comparable to the negligent
use of the other machinery listed in section 8104-A(1)(A) through (F).   See
J.R.M., Inc., 669 A.2d at 161; Harris, 667 A.2d at 613; Petillo, 657 A.2d at
327; McNally, 414 A.2d at 906.  Like the risks posed by a negligently
operated motor vehicle, mobile equipment, or watercraft, the negligent
operation of the bridge leaf machinery presents the risk of collisions with
persons and property engaged in transportation on public roads and
waterways -- the precise risk that was realized here.  See J.R.M., Inc., 669
A.2d at 161.  Accordingly, I would find that bridge leaf machinery qualifies as
"other machinery or equipment, whether mobile or stationary" for which
the DOT can be held liable for its negligent operation.  See 14 M.R.S.A.
§ 8104-A(1)(G).
	[¶20]  The Court cites statutory language that the Legislature
ultimately omitted from the MTCA to argue that the Legislature did not
intend to impose liability for the operation of bridges.  The omitted language
provided that liability could attach for a governmental agency's negligent act
or omission:
Where a dangerous, unsafe or defective condition has been
created in the construction, operation or maintenance of any
public building, structure, dam, reservoir, street, alley, sidewalk,
bridge, highway or other public improvement controlled by such
governmental entity, provided, that immunity shall not be
removed under this subsection for latent conditions or
conditions resulting from deterioration through continued use
or exposure to weather unless constructive and actual notice to
the governmental entity of such conditions prior to the
occurrence alleged and proved.

L.D. 87 (108th Legis. 1977).  Even if this provision were in effect, it would
not apply to the bridge leaf machinery in this case.  A "dangerous, unsafe or
defective condition" refers to physical conditions in public areas -- holes,
ditches, loose gravel, unsafe terrain, and the like -- created by the State
during the course of construction, operation, or maintenance.  This
provision, therefore, would not include the State's operation of a bridge or
bridge equipment, where the bridge equipment did not create a dangerous
"condition" in a public area.  Because this omitted provision would not have
included the negligent acts at issue here, the Court's reliance on the
Legislature's consideration of this omitted provision is misplaced.
	[¶21]  Delaware case law relied on by the Court actually contradicts
the Court's conclusion that "other machinery or equipment" is limited to
equipment capable of transportation.  See Sadler v. New Castle County, 565
A.2d 917, 923 (Del. 1989); Porter v. Delmarva Power & Light Co., 488 A.2d
899, 905-06 (Del. Super. Ct. 1984), rev'd on other grounds, 547 A.2d 124
(Del. 1988).  Under Delaware law, "other machinery or equipment, whether
mobile or stationary" includes such stationary equipment as electric
transmission lines.  See Sadler, 565 A.2d at 923; Porter, 488 A.2d at
905-06.
	[¶22]  Moreover, the Delaware Supreme Court's decision in Triple C.
Railcar Service, Inc. v. City of Wilmington, 630 A.2d 629, 632 (Del. 1993), is
inapposite. There, the State's alleged negligent operation of floodgates
caused flooding that resulted in property damage, and the court held that
floodgates were not "other machinery or equipment."  Id.  The tidegates
were located in an isolated area, "pose[d] little danger to the general
public," and did not cause the property damage by direct contact.  Id.  
Unlike the tidegates, the bridge leaf machinery at issue here is located in a
busy commercial center, poses risks to the general public engaged in travel
on the waterways, and direct contact -- as realized here in the form of a
collision -- poses substantial harm to the public and property.  Therefore,
Delaware law, and Triple C. Railcar in particular, provides little support for
the Court's interpretation of "other machinery or equipment."
	[¶23]  The Court's decision constitutes a departure from established
precedent interpreting the phrase "other machinery or equipment." I
would conclude that the DOT is not immune from suit for its negligent
operation of bridge leaf machinery.
Attorney for plaintiff:

John R. Bass, II, Esq., (orally)
Thompson, Bull, Furey, Bass & MacColl, LLC, P.A.
P O Box 447
Portland, ME 04112-0447

Attorney for defendant:

James E. Smith, Esq., (orally)
Legal Division
Department of Transportation
16 State Houser Station
Augusta, ME 04333-0016