Court refuses to create requirement for duty of care

By Judy Harrison, BDN Staff
Posted Dec. 29, 2009, at 9:12 p.m.

PORTLAND, Maine — The Maine Supreme Judicial Court unanimously rejected a Washington County man’s effort to create a duty of care requirement, which would obligate individuals to call 911 when they know someone is seriously injured.

Steven Cilley, 54, of Princeton, sued Jennifer Lane, of Princeton, over the death of Cilley’s son. Joshua Cilley died on Jan. 31, 2005, at age 27 in the Calais Regional Hospital emergency room of a gunshot wound to the abdomen from a .22-caliber bullet. He was shot while in Lane’s trailer, according to court documents.

Lane, described as the younger man’s on-again, off-again lover, allegedly sat with him for at least 15 minutes after he was shot before attempting to seek medical assistance. Steven Cilley said earlier this year that the doctor who treated his injured son told him Joshua Cilley could have been saved if he had arrived at the hospital five minutes earlier.

Local police found the death to be a suicide, but no autopsy was performed, Steven Cilley’s attorney, Brett Baber, of Bangor, said earlier this year.

The elder Cilley filed a wrongful death lawsuit against Lane in Washington County Superior Court 13 months after his son’s death. In January 2009, Superior Court Justice E. Allen Hunter granted Lane’s motion for summary judgment because Maine law does not state that a person has a duty of care.

Steven Cilley appealed that ruling. The Supreme Judicial Court heard arguments in the case on Oct. 27 at the University of Maine at Fort Kent before an auditorium of high school students.

Lane’s attorney, Eugene Coughlin, of Bangor, argued before the justices that the lower court correctly found that Joshua Cilley was a trespasser on Lane’s property so she was under no legal obligation to seek assistance for him.

The justices agreed with Hunter.

“Because Cilley was a trespasser at the time of the incident, Lane’s only duty to him was to refrain from wanton, willful, or reckless behavior,” Justice Ellen Gorman wrote for the court. “Lane’s failure to contact emergency assistance for Cilley immediately after she heard the pop [of the gunshot] does not rise to the level of wanton, willful, or reckless behavior because Lane did not create the danger to Cilley, nor commit any act that led to his initial injury.”

“Our cases,” she continued, “are devoid of any precedent that would require a landowner to affirmatively act to help a trespasser injured through no fault or act of the landowner.”

Baber said that his client was disappointed by the court’s decision but planned to return to the Legislature to ask lawmakers to create a duty of care law.

A bill that would have done that was rejected by the Legislature in the session that ended in June. The bill could be addressed in the session that begins next month, Baber said Tuesday.

Efforts to reach Coughlin on Tuesday were unsuccessful.

http://bangordailynews.com/2009/12/29/news/court-refuses-to-create-requirement-for-duty-of-care/ printed on July 12, 2014