STATE OF MAINE
TRANSPORTATION
COMPENDIUM OF LAW
Presented by
Wendell G. Large
Carol I. Eisenberg
Richardson, Whitman, Large & Badger
465 Congress Street, 9th floor
Portland, ME 04101
Phone: 207-774-7474
www.rwlb.com
Revised 2015
Elements of Proof for the Derivative Negligence Claims of Respondeat Superior, Negligent
Entrustment, Hiring/Retention and Supervision
Not all of the distinct theories by which an employer might be held to have derivative
or dependent liability for the conduct of an employee have been adopted in Maine,
as detailed below. Derivative or dependent liability simply means that one element
of imposing liability on the employer is a finding of culpability by the employee in
causing an injury to a third party. In other words, if the driver is exonerated, the
carrier cannot be liable.1
1.
Respondeat Superior (Let the master answer)
a. What are the elements necessary to establish liability under a theory of
Respondeat Superior?
As a general proposition, an employer is liable to a third party injured because of
the negligence of an employee who is acting in the course of his employment.
Stevens v. Frost, 32 A.2d 164 (Me. 1943); Ottinger v. Shaw’s Supermarkets, Inc.,
635 A.2d 948 (Me. 1993). “Conduct that is within the scope of employment is the
type of conduct the employee was hired to perform, occurs within the time and
space of the employment, and is undertaken, at least partially, to serve the
employee’s master.” Morgan v. Kooistra, 2008 ME 26, ¶ 21, 941 A.2d 447, 454.
Whether the employee is so acting depends on factual circumstances. The fact
that the employee’s predominant motive was to benefit himself or a third person
does not necessarily mean that he was not within the scope of his employment.
O’Brien v. United States, 236 F. Supp. 792 (D.Me. 1964). Under some
circumstances an employer may even be liable for the intentional tort of its
employee. McLain v. Training and Development Corp., 572 A.2d 494 (Me. 1990);
but an employer will not be held liable for serious crimes of an employee “outside
the contours of the employment relationship.” Mahar v. Stonewood Transp., 2003
ME 63, ¶ 15, 823 A.2d 540, 545.2 While no Maine Supreme Court decision has
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There is at least one exceptional kind of situation where an owner may be held liable for negligence even if the driver
is exonerated: if the owner negligently entrusted the motor vehicle to the operator with actual or constructive
knowledge of a latent defect in the vehicle.
2
The Mahar court incorporated the holding in Nichols v. Land Transp. Corp., 103 F. Supp. 2d 25 (D.Me. 1999):
In Nichols, a trucking company was sued for the stabbing of a motorist by one of its driveremployees. Concluding that the stabbing was outside the scope of employment, the court observed
that the employee was not authorized to leave his truck to stab a motorist, and doing so clearly
demonstrated his motivation to serve his personal interests, rather than those of the trucking
company. Although Comment a to Restatement (Second) of Agency § 231 (1958) recognizes that
a master may reasonably anticipate a servant's minor crimes in the carrying out of the master's
business, serious criminal activity, such as brandishing a knife and stabbing a motorist, are both
unexpected and different from what is expected from servants in a lawful occupation.
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Revised 2015
ever imposed on an employer vicarious liability for an accident caused by the
employee when returning home from work, that possibility was recognized in
Spencer v. VIP, Inc., 2006 ME 120, 910 A.2d 366.
The relatively recent Maine Supreme Court opinion in Mahar discourses helpfully
on the imposition of vicarious liability on employers in Maine:
Maine applies the Restatement (Second) of Agency to
determine the limits of imposing vicarious liability on an employer.
See McLain v. Training & Dev. Corp., 572 A.2d 494, 497 (Me. 1990).
Specifically, section 228 of the Restatement provides that a master
may be vicariously liable for the actions of its agent when the
agent's conduct was within the ‘scope of employment.’
The Restatement (Second) of Agency § 228 provides:
(1) conduct of a servant is within the scope of employment if, but
only if:
(a) it is of the kind he is employed to perform;
(b) It occurs substantially within the authorized time
and space limits;
(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.
(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.
Mahar v. StoneWood Transp., 2003 ME 63, ¶ 13, 823 A.2d at 544.3
Mahar v. StoneWood Transp., 2003 ME 63, ¶ 16, 823 A.2d at 545 (citations omitted). Maine has reaffirmed this
holding in Gniadek v. Camp Sunshine at Sebago Lake, Inc., 2011 ME 11, ¶ 35, 11 A.3d 308, 317.
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The Mahar court also incorporated the First Circuit opinion in Lyons v. Brown, 158 F.3d 605, 609-10 (1st Cir.
1998) interpreting Maine's use of section 228:
Acts relating to work and done in the workplace during working hours are within the scope;
negligent performance of duties is within the scope, while serious intentional wrongdoing is outside
it; and the motivation of the employee (to serve the master's interests or his own) is often an
important element.
In further defining ‘scope of employment,’ subsection (2) of section 228 requires that the
agent's conduct occur within ‘authorized time or space limits.’ This requirement relates to whether
the agent's act was foreseeable, and establishes the principle that ‘the master should not be held
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Revised 2015
2.
Negligent Entrustment
a. What are the elements necessary to establish liability under a theory of negligent
entrustment?
Maine law recognizes liability based upon the negligent entrustment of an
automobile. Pelletier v. Mellon Bank, N.A., 485 A.2d 1002, 1005 (Me. 1985). In
order to prevail on a negligent entrustment claim, a plaintiff must show that
defendant had the right to control the property in question, which was entrusted
to a third party, on the occasion when the accident occurred. Reid v. Town of Mt.
Vernon, 2007 ME 125, ¶ 32, 932 A.2d 539, 547.
3.
Negligent Retention/Hiring
a. What are the elements necessary to establish liability under a theory of negligent
retention/hiring?
The Maine Supreme Court has not directly addressed whether such a cause of
action should be recognized, but the claim seems to be subject to the same
analysis as a potential claim for negligent supervision (see below).
4.
Negligent Supervision
a. What are the elements necessary to establish liability under a theory of negligent
supervision?
Where an employee is acting outside the scope of his employment, some
jurisdictions hold that the employer can be liable for the independent tort of
negligent supervision. The Maine Supreme Court has refrained, however, from
generally recognizing that tort. Hinkley v. Penobscot Valley Hosp., 2002 ME 79,
794 A.2d 643; Napieralski v. Unity Church of Greater Portland, 2002 ME 108, 802
A.2d 391, As the Law Court has explicitly stated more than a decade ago, “We
have not yet recognized the independent tort of negligent supervision of an
employee.” Mahar v. Stonewood Transp., 2003 ME 63, ¶ 10, 823 A.2d 540, 543.
responsible for the agent's conduct when that conduct is outside the contours of the employment
relationship.’
Mahar v. StoneWood Transp., 2003 ME 63, ¶¶ 14-15, 823 A.2d at 544-45 (citations omitted).
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The Law Court has since carved out an exception, allowing claims for negligent
supervision where liability is based on a special relationship. Fortin v. Roman
Catholic Bishop of Portland, 2005 ME 57, 871 A.2d 1208. The Law Court has
explained that the “special relationship” necessary to trigger liability is very
narrowly defined and is
limited to four kinds of relationships: (1) common
carriers and their passengers; (2) innkeepers and
their guests; (3) possessors of land and members of
the public who are their invitees; and (4) those who
are required by law to take physical custody of
another or who voluntarily do so, such as to
deprive the other of his normal opportunities for
protection.
Dragomir v. Spring Harbor Hosp., 2009 ME 51, ¶ 18, 970 A.2d 310, 315-16. Plaintiff
must allege facts that would constitute such a special relationship, and prove that
the employer could have foreseen the need to control the employee.
The Maine Supreme Court has made clear that if it should ever adopt this
independent tort, it would require the elements articulated in Restatement
(Second) of Torts § 317 (1965) and Restatement (Second) of Agency § 213 (1958).
Mahar v. StoneWood Transp., 2003 ME 63, ¶ 11, 823 A.2d at 543.
1.
Restatement (Second) of Torts § 317 (1965) provides:
A master is under a duty to exercise reasonable care so to control
his servant while acting outside the scope of his employment as to
prevent him from intentionally harming others or from so
conducting himself as to create an unreasonable risk of bodily harm
to them, if:
(a) the servant
(i) is upon the premises in possession of the master or upon which
the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control
his servant, and
(ii) knows or should know of the necessity and opportunity for
exercising such control.
2.
Restatement (Second) of Agency § 213 (1958) provides:
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Revised 2015
A person conducting an activity through servants or other agents is
subject to liability for harm resulting from his conduct if he is
negligent or reckless;
(a) in giving improper or ambiguous orders or in failing to make
proper regulations; or
(b) in the employment of improper persons or instrumentalities in
work involving risk of harm to others;
(c) in the supervision of the activity; or
(d) in permitting, or failing to prevent, negligent or other tortious
conduct by persons, whether or not his servants or agents,
upon premises or with instrumentalities under his control.
A.
Defenses
1.
Traditional Tort Defenses
Depending on the facts of a particular case, given the derivative nature of these
theories, traditional tort defenses may also apply such as comparative fault, failure to
mitigate damages, superseding and intervening cause, etc.
B.
Punitive Damages
1.
Is evidence supporting a derivative negligence claim permissible to prove an assertion
of punitive damages?
In Tuttle v. Raymond, 494 A.2d 1353 (Me. 1985), the Maine Supreme Court limited
the recovery of punitive damages to those situations where the defendant acted with
“malice”: either deliberate ill will toward the plaintiff, or conduct so outrageous that
such ill will could be implied. Gross, wanton, or reckless conduct does not support
punitive damages; malice must be alleged and proved. In addition, proof of malice
must be made by “clear and convincing evidence,” a higher standard than mere
preponderance of the evidence.
Inadvertent conduct (for example, drunk driving), no matter how egregious, does not
give rise to punitive damages. Even deliberate conduct does not necessarily give rise
to punitive damages. Therefore, while there is no specific holding disallowing punitive
damages in the case of a derivative negligence claim, punitive damages are rare and
difficult enough to obtain in Maine that it is unlikely such a claim would get to a jury
or that, if it did, malice could be proved by clear and convincing evidence.
This Compendium outline contains a brief overview of certain laws concerning various
litigation and legal topics. The compendium provides a simple synopsis of current law and is
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not intended to explore lengthy analysis of legal issues. This compendium is provided for
general information and educational purposes only. It does not solicit, establish, or continue
an attorney-client relationship with any attorney or law firm identified as an author, editor or
contributor. The contents should not be construed as legal advice or opinion. While every
effort has been made to be accurate, the contents should not be relied upon in any specific
factual situation. These materials are not intended to provide legal advice or to cover all laws
or regulations that may be applicable to a specific factual situation. If you have matters or
questions to be resolved for which legal advice may be indicated, you are encouraged to
contact a lawyer authorized to practice law in the state for which you are investigating and/or
seeking legal advice.
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