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From Maine Law to Model Act: Liquor Liability in Maine
Get PDFWith the passage of the Maine Liquor Liability Act by the 112th Legislature, the State of Maine has completed a thorough reexamination of its public policy in the area of liability for injuries resulting from the use of alcoholic beverages. For 130 years the state\u27s policy in this area was expressed by the statute commonly known as the dram shop act, the essential provisions of which had remained unchanged for over a century. This statute held sellers and other providers of alcoholic beverages strictly liable to any third party injured as a result of the intoxication of the recipient of the liquor if the liquor were provided in violation of law. For reasons detailed below, this act had outlived its usefulness by the mid-1980\u27s and was ripe for replacement by a more flexible and carefully reasoned policy. While enactment of the Maine Liquor Liability Act was spurred by an upsurge of litigation under dram shop acts in Maine and elsewhere, the new Act also reflects a change in public attitudes toward the responsible use of alcohol. This Comment reviews the historical development of the state\u27s policy in this area, from the immunity from suit which a server of liquor enjoyed under the common law to the opposite extreme of a standard of strict liability for such service, imposed by statutes passed during a period of statewide prohibition. This Comment discusses the social changes that rendered the policy established in the late nineteenth century increasingly inappropriate, and that encouraged the Maine Supreme Judicial Court to consider alternative remedies in the pertinent common law doctrines. These developments led the Legislature to scrap Maine\u27s venerable dram shop act in favor of a carefully crafted statute balancing the duties and liabilities of servers and drinkers of alcoholic beverages. Finally, this Comment examines the provisions of the Maine Liquor Liability Act, describing its legislative evolution from a model act proposed in a California law review into a statute that may serve as a model to other states that are attempting to strike a just balance in this difficult area of the law
In re Debra B.: The Best Interest Standard in Court-Authorized Sterilization of the Mentally Retarded
Get PDFPursuant to the Due Process in Sterilization Act of 1982, Maine courts may hear petitions for sterilization of the mentally retarded. In In re Debra B., a mother petitioned to have her mentally retarded daughter sterilized. The Maine Supreme Judicial Court, sitting as the Law Court, vacated the order granting the petition. In a unanimous opinion, the court held that a finding of procreative capability is a sine qua non for determining whether sterilization is in an incompetent person\u27s best interest. Through its holding, the court thereby extended the statute\u27s clear and convincing standard of proof to a factor not expressly described in the statute\u27s best interest section. The Law Court then held that sterilization was not in Debra\u27s best interest because her mother failed to present clear and convincing evidence establishing Debra\u27s procreative capability. The purpose of Maine\u27s sterilization statute is to prevent indiscriminate and unnecessary sterilization and to assure equal access to desired medical procedures for all Maine citizens. The statute expressly provides two best interest guidelines that control a court\u27s decision whether to grant a petition for sterilization. These guidelines are necessary to protect an incompetent person\u27s fundamental rights. Both state and federal constitutions provide basic protection of a person\u27s privacy rights, whether that person is mentally competent or not. Among the privacy rights receiving constitutional protection are both the right to procreate and the right to choose not to procreate. In addition, Maine\u27s common law doctrine of informed consent generally protects a person\u27s right to control his medical care. Because some mentally retarded individuals are not competent to choose between sterilization and procreation, the state has an interest not only in attempting to make a decision in their best interest, but also in safeguarding their rights from third party interference. The Maine Legislature in the Due Process in Sterilization Act of 1982 required Maine courts to apply a best interest standard in determining whether to order sterilization of an incompetent person. Pursuant to the statute, such a determination involves evaluating whether the petitioner has established the facts relevant to the two statutory best interest guidelines by clear and convincing evidence. The statute also directs a court\u27s inquiry to a number of subfactors raised by the petition for sterilization, by evidence of the mental and physical effects of sterilization on the individual, and by [a]ny other relevant evidence concerning the mental and physical condition of the person being considered for sterilization. If the court finds clear and convincing evidence that sterilization is in the best interest of the [individual], the court shall order that sterilization may be performed
Emerging Protection Against Retaliatory Discharge: A Public Policy Exception to the Employment At-Will Doctrine in Maine
Get PDFThe job security of approximately sixty percent of Maine\u27s civilian labor force has traditionally been, and continues to be, governed by the employment at-will doctrine. In its traditional form, the doctrine allows employers to discharge employees, whose employment contract is for an indefinite length, for good cause, no cause, or bad cause. Similarly, the employee is free to terminate the employment relationship at any time. Courts and commentators have pointed out that the symmetry and logical appeal of the contractual principle of mutuality of obligation is the central doctrinal underpinning of the rule. Because the employment at-will doctrine was consistent with the developing idea of freedom of contact and the laissez-faire views that dominated American political and economic thought in the late nineteenth and early twentieth centuries, the rule gained wide acceptance in this country during this period, achieving federal constitutional status in Adair v. United States. In the last two decades, however, courts and commentators have recognized that, because the mutuality of obligations rationale is based on the false premise of relatively equal bargaining power between employees at-will and employers, the traditional employment at-will doctrine has little or no legitimate economic justification. Moreover, changed social values, crystallized most clearly in the National Labor Relations Act (NLRA), have significantly eroded the policy bases of the doctrine. Based primarily on the recognition that the traditional doctrine unjustly threatens the employment security of employees at-will by giving the employer the right to discharge them arbitrarily, courts around the country have limited the employer\u27s power to discharge employees at-will by creating various exceptions to the traditional rule
Affirmative Judicial Case Management: A Viable Solution to the Toxic Product Litigation Crisis
Get PDFWith increasing frequency, federal courts throughout the nation have confronted a multiplicity of toxic tort claims, claims for relief arising from chronic and latent illnesses or diseases allegedly caused by toxic substances. Toxic substances are substances whose manufacture, processing, distribution, use, or disposal presents or will present an unreasonable risk of injury to a person\u27s health or to the environment. Because many of these unreasonable health risks are caused by consumer and industrial products, many toxic tort claims are actually toxic product claims. Examples of toxic product claims include those arising from the use, exposure to, or consumption of chemicals such as Agent Orange, building products such as asbestos, and consumer products such as cigarettes and prescription drugs. Because toxic product claims seek relief for chronic and latently manifested diseases, they present numerous practical problems as well as novel and complex legal issues. Furthermore, a large number of suits may arise from a single, widely distributed toxic product, and each suit may name numerous defendants. Consequently, the spectre of innumerable complex toxic product suits now threatens to overwhelm many federal district courts. It is not uncommon for a single court to have hundreds or even thousands of pending suits, and to have a steady flow of new claims being filed, all resulting from a single toxic product. As a result, legal commentators and other interested persons voice an ever-increasing interest in federal legislation to resolve this perceived crisis. A variety of federal legislation has been introduced, but as yet, Congress has declined to enact any of this legislation. Those who advocate a federal legislative solution to the toxic product crisis necessarily assume that federal courts are currently incapable of reaching a fair and timely resolution of toxic product litigation. This Comment addresses the validity of that premise. It first defines the toxic product claim and describes the peculiar difficulties courts and attorneys encounter in toxic product litigation. It then reviews the numerous case management procedures currently available to expedite fairly a toxic product claim in the federal courts. This review suggests that federal legislation is not necessary to solve the perceived toxic product crisis. Instead, this Comment suggests that active use by the judiciary of the currently available case management procedures offers a viable solution to the toxic product litigation crisis. Necessarily, the discussion then proceeds to an analysis of the propriety of the enhanced role of judges as a consequence of full implementation of the case management procedures. This Comment argues that such an enhanced and more active judicial role not only is constitutional and proper, but further, that judges have a duty to pursue such a role and to employ existing case management procedures where efficacious. Consequently, this Comment concludes that if federal judges embrace and consistently use these presently existing procedural tools, any need for federal legislation, the effect of which is uncertain, would be precluded
Improved Regulation of Maine Physicians: One Solution to the Medical Malpractice Crisis
Get PDFMaine began regulating allopathic and osteopathic physicians around the turn of the century with the passage of two statutes, in 1895 and 1919, commonly referred to as the Medical Practice Acts. As originally enacted, these statutes provided for the establishment of boards, composed of physicians, and empowered the boards to examine and license all persons seeking to practice as physicians and surgeons within the state. The boards were also responsible for investigating complaints of noncompliance with, or violations of, the Acts\u27 provisions, and for revoking licenses for such violations. The boards were left to undertake these licensing and review functions with little oversight from either the Legislature or the public. This system remained largely unchanged in Maine until the 1970\u27s. With the onset of the so-called medical malpractice crisis in the early 1970\u27s, national and local attention focused on the unavailability of medical malpractice insurance and the quality of medical care. Medical malpractice insurers were raising premiums drastically, restricting coverage, or leaving the medical malpractice business entirely. The primary reasons given by the insurance industry for these changes were the increasing number of claims and the increasing costs of settlement. Some questioned, however, whether the crisis was due instead to less competent physician practice and to ineffective self-regulation by the profession. State legislatures responded with various reforms in an attempt to ensure the availability of insurance. The predominant response was the enactment of reforms in the common law tort system of patient-injury compensation. The common belief was that limiting the number of claims and offering greater predictability would reduce the amounts paid by insurance companies thus creating a more viable market for their continued operation. Changes included limiting recovery amounts, creating medical malpractice screening panels, changing applicable statutes of limitations, abrogating the collateral source rule, and establishing arbitration systems. As part of these reforms, some state legislatures demanded that physicians increase their efforts at self-regulation. In 1977, the Maine Legislature responded to the crisis with the passage of the Maine Health Security Act. The Act provided a series of quality control measures and a variety of tort reforms in an attempt to avoid a crisis in malpractice insurance availability in Maine
Judge Edward T. Gignoux — A Personal Appreciation
Get PDFMost occasions for encomia about judges occur when the subject has departed the scene of his accomplishments. Happily, the subject of this issue of the Maine Law Review is still with us and likely to be so for a long time. He also happens to measure up precisely to the overused word paragon. I use it in the original Latin sense of whetstone, something to sharpen against or to compare oneself with. My thesis is that Judge Gignoux gives observers of any age, but particularly the young, an inspiring role model. This volume is felicitously dedicated. The ever-present problem is how to avoid excessive generality or banality on the one hand and excessive length and detail on the other; how to convey succinctly the essences that ought to be recognized and cherished. My method shall be to sketch a number of facets, hoping that one or more shall strike the reader with particular sparkle
Comparative Negligence: The Multiple Defendant Dilemma
Get PDFMaine\u27s comparative negligence statute provides that a plaintiff who is partly at fault for his or her own injury may recover so long as he or she is not equally at fault. The statute is simple to apply when there is only one defendant. In cases that involve two or more defendants, however, neither the Maine Supreme Judicial Court nor the Legislature has indicated whether the plaintiff\u27s fault is compared with the fault of each defendant individually or all defendants combined
The Decline of the Privity Rule in the Maine Law of Tort Products Liability: A Conceptual History
Get PDFNo single issue has more preoccupied modern jurisprudential writers than the limitations of precedent on the lawmaking power of judges. Yet despite this singular concentration, no scholarly consensus has emerged regarding what those limitations are or what form they should take. This continuing theoretical dispute recently manifested itself in a series of decisions rendered by the Law Court. Last spring in the case of Adams v. Buffalo Forge Co., the Law Court reconsidered a significant aspect of two decisions of the previous term: Burke v. Hamilton Beach Division and Hurd v. Hurd. In Burke and Hurd the court decided that under certain circumstances, lack of privity constituted a defense to negligence in an action for products liability. The most interesting aspect of the court\u27s opinion in Buffalo Forge is not its overruling of two recent decisions, although that, in itself, raises an eyebrow. Rather, the court\u27s reasons for its action crystallize much of the modern jurisprudential debate mentioned above. This Article will consider the merits of the court\u27s reasoning in Buffalo Forge in deciding to overrule Burke and Hurd on the efficacy of the privity defense in tort. The Author contends that the Buffalo Forge majority misconstrued the reasoning of the court in Burke and Hurd in that it failed to consider adequately a position denominated judicial deference. While it is true that the Burke and Hurd majorities relied heavily on prior case law analyses of privity, that reliance is cast in terms of the court\u27s recognition that the legislature has entered the field of products liability and altered prior law. To understand fully what was said about privity in Burke and Hurd, one must assess not only the precedential effect of prior decisions, but also the legislature\u27s understanding of prior law in light of its directive that statutory changes to that law be given prospective application only. The thesis of this Article is that the majority in Buffalo Forge misconstrued the form of the argument of the Burke and Hurd majorities and, in overruling those decisions, left unaddressed the importance of judicial deference to legislative prerogative
