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QUINN v. DIPIETRO5/31/1994
Eleanor DiPietro appeals from a judgment entered in the Superior Court (Cumberland County, Brodrick, J.) holding that her status as de facto co-owner of a market did not entitle her to immunity from suit pursuant to 39 M.R.S.A. § 4 (1989) for injuries sustained by a market employee. She contends
In June 1990 Brian Quinn sustained a
There was no clear error in the trial court's factual finding that DiPietro was in fact a co-owner of the market. Morin Bldg. Prod. Co. v. Atlantic Design and Constr. Co., 615 A.2d 239, 241 (Me. 1992). If the court erred in admitting her husband's testimony as to joint ownership, which conflicted with the market's certificate of sole proprietorship and may have violated 31 M.R.S.A. § 3 (1978), that error was harmless. The husband's testimony was cumulative and did not affect the judgment. M.R.Civ.P. 61; cf. State v. True, 438 A.2d 460, 467 (Me. 1981).
The court erred, however, in determining that DiPietro could be sued under the dual capacity or dual persona doctrine. The doctrine, which arises out of products liability law, provides:
"An employer may become a third person, vulnerable to tort suit
by an employee, if — and only if — he possesses a second
persona so completely unrelated to his status as employer that
by established standards the law recognizes it as a separate
legal person". . . . The dual capacity doctrine does not
destroy the theoretical superstructure of workmen's
compensation . . . . The dual capacity doctrine merely allows
the employee to sue his employer where the employer-employee
relationship does not exist because the employer is acting in a
second persona unrelated to his status as employer.
Vilanova v. United States, 851 F.2d 1, 6-7 (1st Cir. 1988), cert. denied, 488 U.S. 1016, 109 S.Ct. 811, 102 L.Ed.2d 801 (1989) (quoting Wright v. United States, 717 F.2d 254, 259 (6th Cir. 1983)).
We have previously applied the doctrine in a case in which the employer was a discrete legal entity from the landlord. See LaBelle v. Crepeau, 593 A.2d 653 (Me. 1991) (employer was corporation in which defendant landlord was majority shareholder and officer). The decision in LaBelle was predicated on "the basic proposition that a corporation is a separate legal entity . . . [with] the power to sue and be sued, lease or own property, and employ people to carry out its business." Id. at 655. The critical distinction in LaBelle, the existence of two entirely separate legal entities, is missing in DiPietro's case and we decline to extend the doctrine on the basis of the employer's mere ownership of property. See 2A Arthur Larson, Workmen's Compensation Law § 72.82
(1992); Sharp v. Gallagher, 95 Ill.2d 322, 69 Ill.Dec. 351, 353, 447 N.E.2d 786, 788 (1983). The proper test for determining whether the doctrine applies is not whether a separate legal theory of liability can be brought against the same legal person as the employer, but rather whether the controversy involved separate legal personae. See, e.g., Sharp, 69 Ill.Dec. at 353, 447 N.E.2d at 788; Incandela v. Giannini, 250 Ill. App.3d 23, 189 Ill.Dec. 143, 619 N.E.2d 844, 849 (1993) (mere ownership of premises does not trigger employer's liability in tort); see generally 23 A.L.R.4th 1151 § 5 (1983 & Supp. 1993).
The evidence does not support the court's finding that DiPietro maintained a separate legal persona. Morin, 615 A.2d at 241. The court erred in concluding that DiPietro's status as co-owner of the building was so completely unrelated to her status as employer that by established legal standards it constitutes a separate legal person with completely unrelated obligations. Estate of Hardy, 609 A.2d 1162,
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