Thompson v. Dept of Inland Fisheries
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 78
Docket:	Ken-01-747
Argued:	April 2, 2002
Decided:	May 13, 2002

Panel:	SAUFLEY, C.J., and  CLIFFORD, RUDMAN, ALEXANDER, CALKINS, and  LEVY,
JJ.
									

				THOMAS C. THOMPSON JR.

v.

DEPARTMENT OF INLAND FISHERIES AND WILDLIFE et al.

LEVY, J.

	[¶1]    Thomas C. Thompson, Jr., appeals from the judgment entered in
the Superior Court (Kennebec County, Atwood, J.) dismissing his  negligence
claim against the State of Maine, the Department of Inland Fisheries and
Wildlife, the Maine Warden Service, the Maine Army National Guard, and the
Maine Army National Guard's 112th Medical/Medvac Company (collectively
"the State") on the basis of sovereign immunity.  Thompson argues that the
court erred by dismissing his claim because it states a cause of action that
falls within the exception to sovereign immunity, provided in 14 M.R.S.A.
§ 8104-A(1) (Supp. 2001), for negligent ownership, maintenance or use of
vehicles, aircraft, snowmobiles and other machinery or equipment.  We
disagree and affirm the judgment.

I.  BACKGROUND

	[¶2]  On March 9, 2001, Thompson filed a complaint in the Superior
Court that alleged the following facts: Thompson was gravely injured in a
snowmobile accident in the afternoon of March 13, 1999; the accident occurred
on a portion of a snowmobile trail maintained and patrolled by the Department
of Inland Fisheries and Wildlife; and Thompson's rescue was delayed by hours
because of the State's negligent acts with regard to its "ownership,
maintenance, and use of the rescue vehicles, aircraft, snowmobiles and other
machinery at [its] disposal."  Specifically, Thompson claimed that the National
Guard Medvac helicopter that had been dispatched to rescue him was unable
to locate the extraction point because (1) it was equipped with navigational
equipment that was incompatible with the equipment used by the Warden
Service's ground units, (2) it was inadequately fueled to enable it to continue
searching for a sufficient amount of time, and (3) the Warden Service's ground
units were not equipped with adequate radio communications equipment.{1}
Thompson claims that the injuries he suffered from the snowmobile accident
were exacerbated by this negligence.
	[¶3] The State moved to dismiss Thompson's complaint and the Superior
Court granted the motion, finding that all defendants were immune from
liability.  Thompson then timely filed the present appeal.  

II.  DISCUSSION

	[¶4]   The State's motion to dismiss pursuant to M.R. Civ. P. 12(b)(6)
tests the legal sufficiency of Thompson's complaint:

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.  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.  The legal
sufficiency of a complaint is a question of law.

New Orleans Tanker Corp. v. Dep't of Transp., 1999 ME 67, ¶ 3, 728 A.2d 673,
674-75 (citations and quotations omitted).  
	[¶5]  The Maine Tort Claims Act (MTCA) provides immunity to 
governmental entities from all tort claims seeking damages "[e]xcept as
otherwise expressly provided by statute."  14 M.R.S.A. § 8103(1) (1980).  The
MTCA expressly exempts from immunity the negligent acts or omissions of a
governmental entity in the "ownership, maintenance or use" of its motor
vehicles, special mobile equipment, trailers, aircraft, watercraft, snowmobiles
and other machinery or equipment. 14 M.R.S.A. § 8104-A(1) (Supp. 2001).{2}  In
interpreting exceptions to immunity, "we start from the premise that immunity
is the rule and exceptions to immunity are to be strictly construed."  New
Orleans Tanker Corp., 1999 ME 67, ¶ 5, 728 A.2d at 675.  We have recognized
that the MTCA employs an "'exception-to-immunity' approach rather than an
'exception-to-liability' approach."  Id. (quoting Young v. Greater Portland Transit
Dist., 535 A.2d 417, 419 (Me. 1987)).
	[¶6]  Thompson argues that the State's failure to sufficiently fuel the
helicopter and to maintain adequate communication and navigation
equipment squarely falls within the plain meaning of "ownership, maintenance
or use" of vehicles.  In support, he cites several cases from other jurisdictions
that involve the interpretation of similar language in  insurance policies. None
of these cases, however, persuade us that the negligence alleged in the present
case falls within the MTCA's exception to immunity for negligent ownership,
maintenance, or use of the State's vehicles and other machinery or equipment
listed in section 8104-A(1).   Cases involving the interpretation of insurance
policies generally employ a rule of construction in favor of coverage.  This
approach is inconsistent with the strict rule of construction in favor of
immunity that is applicable in cases involving statutory exceptions to
sovereign immunity.  Compare Roche v. United States Fid. and Guar. Co., 247
A.D. 335, 337 (N.Y. App. Div. 1936) (applying "rule of liberal interpretation")
and State Farm Fire & Cas. Co. v. Salas, 222 Cal. App. 3d 268, 274 (Cal. Ct.
App. 1990) (interpreting exclusion in favor of coverage) with New Orleans
Tanker Corp, 1999 ME 67, ¶ 5, 728 A.2d at 675 (construing exception to
immunity strictly).{3} 
	[¶7]  We have made clear that the kind of negligence falling within the
exception to immunity provided in section 8104-A(1) involves harms that flow
naturally or directly from the negligent use or maintenance of vehicles.  In New
Orleans Tanker Corp., we upheld the dismissal of a complaint brought against
the Maine Department of Transportation alleging that the negligent operation
of the bridge leaf machinery on the Portland-South Portland Bridge caused
damage to the plaintiff's tanker.  1999 ME 67, ¶ 14, 728 A.2d 673, 677.  We
explained that 

[i]n 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). 

Id. ¶ 6, 728 A.2d at 675.  We recognized that 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."  Id. ¶ 9, 728 A.2d at 676.  
	[¶8]  In interpreting section 8104-A(1), therefore, the focus is on the risk
of harm naturally or directly caused by the vehicle's contact with the general
public.  This is reflected in Brooks v. Augusta Mental Health Inst., 606 A.2d 789
(Me. 1992), where we found that section 8104-A(1) was inapplicable in a case
involving a patient who jumped to her death from a moving bus.  The gravamen
of the plaintiff's claim was not for negligent operation, use, or maintenance of
the bus but, rather, for negligent monitoring and supervision of the patient. 
Id. at 790.  In Brooks, dismissal of the plaintiff's complaint was proper because
the injury suffered was not the natural or direct result of contact with the bus.   
	[¶9]  In the present case, Thompson has alleged that his rescue was
delayed for hours by the State's negligence and that this delay caused him to
suffer additional injuries.  As the Superior Court held, the gravamen of this
complaint is that Thompson was harmed not by contact with a negligently
operated or maintained vehicle, but by the State's failure to execute an
efficient rescue.{4}  Negligence in the execution of a rescue does not fall within
the MTCA's exception to immunity for negligence in the ownership,
maintenance, or use of the State's vehicles.  The Superior Court did not err,
therefore, in dismissing Thompson's complaint.   
	The entry is:
			Judgment affirmed. 

Attorneys for plaintiff:

Robert J. Gilbert, Esq. (orally)
Edwrd J. Denn, Esq.
Gilbert & Renton 
23 Main Street
Andover, ME 01810

James G. Goggin, Esq.
Charles G. Soltan, Esq.
Verrill & Dana, LLP
P O Box 586
Portland, ME 04112-0586

Attorneys for defendants:

G. Steven Rowe, Attorney General
Andrew S. Hagler, Asst. Attorney General  (orally)
6 State House Station
Augusta, ME 04333-0006

FOOTNOTES******************************** {1} 1. These specific facts were not alleged in the complaint. We consider them as supplemental to the complaint, as did the Superior Court, because they are not disputed by the parties for purposes of the present analysis and because doing so will expedite the proper resolution of this dispute. See M.R. App. P. 14(c). {2} 2. Section 8104-A(1) provides: 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, as defined in Title 29-A, section 101, subsection 42; B. Special mobile equipment, as defined in Title 29-A, section 101, subsection 70; C. Trailers, as defined in Title 29-A, section 101, subsection 86; D. Aircraft, as defined in Title 6, section 3, subsection 5; E. Watercraft, as defined in Title 12, section 1872, subsection 14; F. Snowmobiles, as defined in Title 12, section 7821, subsection 5; and G. Other machinery or equipment whether mobile or stationary. The provisions of this section do not apply to the sales of motor vehicles and equipment at auction by a governmental entity. 14 M.R.S.A. § 8104-A(1). {3} 3. Most of the cases cited by Thompson which involve claims of negligence predicated on failure to adequately maintain a vehicle do not involve the interpretation or application of statutes with language similar to section 8104-A(1). See, e.g., Coto Orbeta v. United States, 770 F. Supp. 54, 58 (D. P.R. 1991) (holding that United States's failure to maintain brakes on vehicle causing injuries was negligence falling within Federal Tort Claims Act waiver of immunity for negligent acts by government employee acting within scope of office or employment); Deutsche Shell Tanker Gesellschaft v. Placid Refining Co., 767 F. Supp. 762, 790 (E.D. La. 1991) (finding that negligent maintenance of radar systems caused grounding of tanker); Plumb v. Burnham, 36 N.W.2d 612, 619 (Neb. 1949) (upholding jury instruction that automobile driver has duty to maintain automobile's fuel supply in such condition that automobile does not "become a menace to, or obstruction of, other traffic by stopping on the road"). One case cited that did involve the application of a statute similar to section 8104-A(1), Peerless Laundry Services, Ltd. v. City of Los Angeles, 109 Cal. App. 2d 703 (Cal. Ct. App. 1952), is distinguishable from the present case because the harm caused by a fire engine that collided with the plaintiff's laundry building flowed naturally or directly from the negligent maintenance of the fire engine's brakes. See id at 704. {4} . In Sadler v. New Castle County, 565 A.2d 917 (Del. 1989), the Delaware Supreme Court, faced with a claim of negligence in the execution of a rescue, determined that the actions of the defendant governmental entities fell within the statutory grant of immunity for the performance of discretionary functions. Id. at 921. In so doing, the court explicitly rejected the claim that the alleged negligence fell within the exception to immunity for negligent use of "equipment" because it had not been alleged that the equipment produced or was the instrument of the harm. Id. at 922. We do not address the applicability of discretionary function immunity in the present case because the parties did not argue it below. See 14 M.R.S.A. § 8104-B(3) (Supp. 2001).