The opinion
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STATE OF MAINE DONALD L. CAMBRECH SUPERIOR COURT
YORK, ss. : LAW LIBRARY CIVIL ACTION
. DOCKET NO. CV-99-166
AR 20
M 2009 GA B-YOR~- 3]is|aceo
MARGUERITE CONNON ;
as Personal Representative of the
Estate of Paul Landre, ,
Plaintiff
v. DECISION AND ORDER
THE COLONY HOTEL
and
JOSEPH GLASCO,
Defendants
This matter is before the Court on Defendants’s Motion for Summary
Judgment. At issue is whether the plaintiff's wrongful death claim is covered under
workmen’s compensation. If compensable, the defendants are immune from
liability. For reasons stated below, the motion is denied.
The facts of this case are straightforward. During the summer of 1997 Joseph
Glasco and Paul Landre were employed as seasonal workers at the Colony Hotel in
Kennebunkport; Maine. The two men were residing in a dormitory which the
Hotel provides to employees in order to attract seasonal staff. Neither Glasco nor
Landre was required to live in the dormitories, nor were they required to be
available to the Hotel on an on-call basis.
On August 15, 1997, the night of the incident, Landre apparently heard loud
music coming from Glasco’s dormitory room. Landre went to Glasco’s room to
confront him, at which time Glasco shot Landre several times, killing him.
Defendants contend that the Hotel cannot be held liable in this tort action
where Glasco’s lethal conduct “arose out of and in and in the course of his
employment.” Comeau v. Maine Coastal Services , 449 A.2d 362, 365. In Comeau
the Court explained that ascertaining whether a sufficient work-connection exists
between the act causing the injury and the employment frequently eludes summary
determination; instead it requires close analysis. Id. at 366. The instant case is no
exception. Here the Court’s analysis takes into account several factors. These
include, but are not limited to:
1) whether at the time of the injury the employee was promoting an interest
of the employer or the activity of the employee directly or indirectly
benefitted the employer. 2) Whether the activities of the employee work to
the benefit or accommodate the needs of the employer. 3) Whether the
activities were within the terms, conditions or customs of the employment,
or acquiesced in or permitted by the employer. 4) Whether the activity of the
employee serves both a business and personal purpose, or represents an
insubstantial deviation from the employment. 5) Whether the hazard or
causative condition can be viewed as employer or employee created. 6)
Whether the actions of the employee were unreasonably reckless or created
excessive risks or perils. 7) Whether the activities of the employee incidental
to the employment were prohibited by the employer either expressly or
implicitly 8) Whether the injury occurred on the premises of the employer.
Id at 367.
In the instant case, there is no question that the killing took place on the
premises of the employer, i.e. the employee dormitory. The fact that the incident
occurred while the parties were off- duty does not preclude compensation. For
example, in Gilbert v. Maheux, 391 A.2d 1203 (Me. 1978) the plaintiff, a
chambermaid was permitted to reside at the employer’s hotel. While off-duty, the
plaintiff slipped and injured herself on the hotel stairway. The Court held that
where the plaintiff lived at the hotel for the convenience of the employer and was
continuously on-call while on the premises she was entitled to workmen’s
compensation.
The Court reasoned that “[e]ven though in Brown v. Palmer Construction
Company, Inc., Me., 295 A.2d 263, at page 266 (1972) we characterized the on-call
factor as fiction and a slender reed upon which to hang the distinctive feature
between certain cases, we cannot say such fact, which was of substantial benefit to
the employer, was not a material incident of the employment.” Id at 1207. The
Gilbert Court found that under these circumstances, an off-duty employee who
injures herself while making reasonable use of the employer's premises has a
compensable injury. Id .
Like the hotel employer in Gilbert, the Hotel in this case has apparently
benefitted from providing housing to its employees. In contrast to the employer in
Gilbert, however, the Hotel did not enjoy the advantage of its employee’s
continuous availability. After Landre completed his shift, the Hotel made no further
demands upon his time. If Landre had been required to reside in the dormitory and
remain “on-call” his death likely would have been a compensable event.
It is true that off-premises injuries are sometimes compensable.Brown v.
Palmer Construction Co, 295 A.2d 263 (Me. 1972) is a case in point. In Brown the
employees were required to obtain an apartment near the out-of-state worksite for
the convenience of their employer. When an exploding stove in the apartment
injured the employees, the Law Court held that the employees were entitled to
workmen’s compensation.
Explaining its decision, the Brown Court stated that the purpose of the
Workmen’s Compensation Act is “to protect the employee against risks which are
not purely self-created but are created by and incidental to the employment.” Id . at
266.The plaintiffs in Brown were entitled to protection where “the injury had its
origin in a risk created by the necessity of sleeping and eating away from home.” Id.
at 267.
The instant case is distinguishable from Brown because the Hotel’s
employees were not required to “accommodate the necessities of their employment”
Id .at 266. Unlike the situation in Brown, the lethal assault that took place at the
Hotel was not an unavoidable accident, such as a fire or explosion. See Comeau at
366.
Even if the incident didn’t occur during “the course of employment”, the
question remains as to whether the shooting was caused or was aggravated by the
employment. In pursuing its causation theory, the Hotel obviously does not try to
argue that Glasco was furthering its interests by shooting and killing a fellow
employee. Such an action at the very least would be reckless, a gross deviation from
normal employee conduct. There is no doubt that the Hotel policy at least implicitly
prohibited such illegal conduct.
Instead, the Hotel argues that the shooting was a consequence of a dispute
that had developed between the two employees who had quarreled both during and
outside their work. If the Hotel can demonstrate that the job was at least an
contributing factor, their position becomes more tenable.
Viewing the facts in the light most favorable to the plaintiff as the non-
moving party, this Court cannot find as a matter of law that the shooting incident
arose out of Landre’s work at the Hotel. The plaintiff has presented sufficient
evidence that at the very least raises the question of whether the assault was purely
‘personal. Likewise it is up to the factfinder to determine whether the job was an
aggravating factor.
The case of Johnson v. Drummond, Woodsum, Plimpton & MacMahon. P.A,
490 A.2d 676 (Me. 1985) is illustrative. In Johnson, the plaintiff claimed she was
entitled to workmen’s compensation after she was shot by her husband at the law
firm where she worked. The plaintiff's office manager was aware that the estranged
husband had frequently attempted to contact Johnson in person or on the phone at
work. Johnson had initially asked the receptionists to inform her husband that she
was unavailable. After being counselled by the office manager, the plaintiff felt
compelled to take these calls and/ or meet with her husband.
Despite the law firm’s involvement, the Court affirmed the denial of
compensation. The Court found that the “assault was imported into her
employment from her private life and was not exacerbated by her employment.” Id.
at 679. The Court. cited the leading Workmen’s Compensation treatise: “When the
animosity or dispute that culminates in an assault is imported into the employment
from the claimant’s domestic or private life, and is not exacerbated by the
employment, the assault does not arise under any test.” I A. Larson, The Law of
Workmen’s Compensation § 11.21 at 3-245 to 3-251 (1985) cited in Johnson 490 A.2d
at 678.
After carefully reviewing the facts and considering the relevant factors, this
Court does not find that the Plaintiff is entitled to workmen’s compensation as a
matter of law. Accordingly, the defendants’ motion for summary judgment is
denied.
Wherefore the entry shall be: Defendants’ Motion for Summary Judgment is
hereby Denied.
Date: March 15, 2000 (KE Dare
G. Arthur Brenrian
Justice, Superior Court
PLAINTIFF: John Meardle, III, Esq.
CAMPBEL AND MCARDLE
PO Box 369
PORTLAND ME 04101
DEFENDANT: THE COLONY INN
Martica Douglas, Esq.
DOUGLAS DENHAM ROGERS AND HOOD
PO Box 7108
Portland Me 04112-7108
DEFENDANT: JOSEPH GLASCO
M. Michaela Murphy, Esq.
DAVIAU JABAR AND BATTEN
One Center St
Waterville Me 04901-5495