MAINE SUPREME JUDICIAL COURT                                                    Reporter of Decisions
Decision: 2014 ME 141
Docket:   Yor-13-544
Argued:   October 9, 2014
Decided:  December 16, 2014

Panel:       SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, JABAR, and HJELM,
             JJ.



                                    MONICA L. SEMIAN

                                                 v.

                       LEDGEMERE TRANSPORTATION, INC.

HJELM, J.

         [¶1] Ledgemere Transportation, Inc. appeals from a judgment entered in the

Superior Court (York County, Fritzsche, J.) in favor of Monica L. Semian. The

judgment was based on a jury verdict finding Ledgemere liable for injuries that

Semian sustained when she rode a bicycle and collided with a bus that it owned

and operated. Ledgemere first contends that pursuant to 29-A M.R.S. § 2070

(2010),1 it cannot be held liable to a cyclist who passes a motorist on the right and

that the court erred in failing to grant its motions for judgment as a matter of law

pursuant to M.R. Civ. P. 50(a), (b). Ledgemere also argues that the court erred in




   1
     Title 29-A M.R.S. § 2070 has since been amended. P.L. 2013, ch. 241, § 5 (effective Oct. 9, 2013)
(codified at 29-A M.R.S. § 2070 (2013)).
2

declining to instruct the jury on the provisions of 29-A M.R.S. § 2063(2) (2010),2

which prescribes the circumstances when a cyclist must ride on the right side of a

way. We affirm the judgment.

                                          I. BACKGROUND

        [¶2] We view the evidence in the light most favorable to Semian. See

Castine Energy Const., Inc. v. T.T. Dunphy, Inc., 2004 ME 129, ¶ 9, 861 A.2d 671.

Monica L. Semian, a twenty-year-old student from Romania, arrived in Ogunquit,

Maine, in June 2010 to work for the summer. On September 9, 2010, Semian was

riding a bicycle on Route 1 in Ogunquit when she was passed by a school bus

owned by Ledgemere and operated by its employee, Marcia Finley.                              Semian

caught up with the bus when it was stopped at the intersection of Route 1 and

Berwick Road. There, the bus straddled the straight and right-turn lanes, began to

move forward, and then paused. Believing the bus would drive straight, Semian

continued riding and began to pass the bus on the right, intending to go straight.

The bus, however, turned right onto Berwick Road. Unable to stop, Semian hit the

side of the bus and then fell under it, suffering extensive injuries when the wheels

of the bus ran over her torso.




    2
     Title 29-A M.R.S. § 2063 has since been amended twice. See, e.g., P.L. 2013 ch. 482 § 2 (effective
Aug. 1, 2014) (to be codified at 29-A M.R.S. § 2063 (2014)).
                                                                                                       3

        [¶3] Semian commenced an action for negligence against both Ledgemere

and Finley in August 2012.3 A five-day jury trial began on September 30, 2013.

After Semian rested her case-in-chief and again at the close of all the evidence,

Ledgemere moved for judgment as a matter of law, see M.R. Civ. P. 50(a), (b),

arguing that pursuant to 29-A M.R.S. § 2070, Semian assumed the risk when she

passed the bus on the right and that Ledgemere cannot be held liable for the

resulting damages. The court denied Ledgemere’s motions.

        [¶4] Additionally, at trial Ledgemere requested that the court instruct the

jury on the provisions of 29-A M.R.S. § 2063(2), specifically, that a cyclist

traveling “at a speed less than the normal speed of traffic moving in the same

direction at that time and place shall drive on the right portion of the way as far as

practicable except . . . [w]hen proceeding straight in a place where right turns are

permitted . . . .” The trial court concluded that the statute was inapplicable and

denied Ledgemere’s requested instruction.

        [¶5] The jury found that Ledgemere was seventy-five percent negligent and

that Semian was twenty-five percent negligent. Because of Semian’s comparative

negligence, see 14 M.R.S. § 156 (2013), the jury reduced her recoverable damages

from $1,000,000 to $750,000, and the court entered judgment for Semian in that


   3
      Prior to trial, Semian dismissed her claim against Finley, leaving only the claim against Ledgemere
to be tried.
4

amount. The court denied Ledgemere’s post-trial motion for a new trial and its

renewed motion for judgment as a matter of law.            M.R. Civ. P. 50(b), 59.

Ledgemere filed this timely appeal.

                                      II. DISCUSSION

A.    Motion for Judgment as a Matter of Law: 29-A M.R.S. § 2070

      [¶6] Ledgemere contends that the court erred in denying its motions for

judgment as a matter of law based on the terms of 29-A M.R.S. § 2070. “We

review de novo the denial of a motion for judgment as a matter of law pursuant to

M.R. Civ. P. 50.” McDonald v. Scitec, Inc., 2013 ME 59, ¶ 9, 79 A.3d 374.

      [¶7] The evidence that bears on Ledgemere’s motion is undisputed: Semian

passed the bus on the right, collided with the bus, and sustained damages.

Ledgemere’s argument is based on 29-A M.R.S. § 2070(6), which provides in part:

“A person operating a bicycle or roller skis may pass a vehicle on the right at the

bicyclist’s or roller skier’s own risk.” Ledgemere argues here, as it did in the trial

court, that pursuant to section 2070, it cannot be held liable because when Semian

sustained her injuries, she was operating a bicycle and passed the bus on the right,

thereby assuming the risk of injury and absolving it of any liability. We conclude

that section 2070 by itself does not insulate a motorist from liability under these

circumstances.
                                                                                     5

      [¶8] Ledgemere’s argument calls for us to construe the meaning of section

2070 and, more particularly, to determine whether it bars a cyclist from recovering

damages for injuries sustained while passing a vehicle on the right. We construe

statutes de novo. Strout v. Cent. Me. Med. Ctr., 2014 ME 77, ¶ 10, 94 A.3d 786.

To determine the meaning of a statute, we consider the plain meaning of its

language and will “look to extrinsic indicia of legislative intent” only if the statute

is ambiguous.     Id. (quotation marks omitted).        If a statute is “reasonably

susceptible to different interpretations,” then it is ambiguous. Id. (quotation marks

omitted).

      [¶9] The plain language of section 2070 is ambiguous because it may be

read to absolve a motorist of liability when a cyclist passes on the right, and

alternatively, it may be read merely to identify the cyclist’s own conduct as a factor

for the fact-finder to consider if that conduct is placed in issue. Because of this

ambiguity, we look to extrinsic information to determine the Legislature’s intent.

      [¶10]    In effect, Ledgemere argues that section 2070 creates primary

assumption of the risk, which is the “situation in which the defendant is held to

owe the plaintiff no duty because the plaintiff has assumed the risk of his voluntary
6

activities.”4 Merrill v. Sugarloaf Mountain Corp., 2000 ME 16, ¶ 9, 745 A.2d 378.

If this doctrine applied here, Ledgemere would not owe a duty of care to Semian,

because Semian would assume the risk arising from her voluntary conduct.

        [¶11] Generally, the Legislature’s enactment of comparative negligence

statutes has supplanted the defense of assumption of the risk. Horton & McGehee,

Maine Civil Remedies, § 16-4(b) at 332, (4th ed. 2004); Merrill, 2000 ME 16, ¶ 9,

n. 3, 745 A.2d 378.             However, the Legislature has retained the defense of

assumption of the risk in several specific circumstances, including equine

activities, agritourism, and skiing. See 7 M.R.S. § 4103-A(1) (2013); 7 M.R.S.

§ 252(1) (2013); 32 M.R.S. § 15217(2) (2013).5 For example, Maine’s equine

activities statute states:

        1. Liability. Except as provided in subsection 2, an equine activity
        sponsor, an equine professional or any other person engaged in an
        equine activity is not liable for any property damage or damages
        arising from the personal injury or death of a participant or spectator
        resulting from the inherent risks of equine activities. Except as
        provided in subsection 2, a person may not make any claim or recover

    4
       Under the doctrine of secondary assumption of the risk, “the defendant’s negligence is already
established, but the plaintiff has proceeded voluntarily to encounter it.” Merrill v. Sugarloaf Mountain
Corp., 2000 ME 16, ¶ 9, 745 A.2d 378. Ledgemere’s argument is not predicated on a concession that it
was negligent. Rather, it contends that, as a matter of law, it cannot be held liable because Semian
assumed the risk of harm when she passed the bus on the right. This argument is therefore based on the
doctrine of primary assumption of the risk, although our conclusion would be the same even if Ledgemere
argued that section 2070 created a defense of secondary assumption of the risk.
    5
      The agritourism statute, 7 M.R.S. § 252(1) (2013), was not enacted until 2011; however, it mirrors
the language of the skiing and equine activities statutes, further showing that even after the Legislature
enacted section 2070, it still continued to follow the same statutory model when imposing assumption of
the risk on activity participants.
                                                                                   7

      from any person for any property damage or damages for personal
      injury or death resulting from the inherent risks of equine activities.
      Each participant and spectator in an equine activity expressly assumes
      the risk and legal responsibility for any property damage or damages
      arising from personal injury or death that results from the inherent risk
      of equine activities.

7 M.R.S. § 4103-A(1) (emphasis added). The agritourism and skiing statutes

mirror this language. See 7 M.R.S. § 252(1); 32 M.R.S. § 15217(2).

      [¶12] These statutes explicitly assign legal responsibility to participants for

their damages when those participants knowingly assume the inherent risks of

these activities, and correspondingly, the statutes expressly and fully shield the

owner or operator from liability to the injured person arising from those risks.

However, the protection from liability can be invoked as a defense in these

contexts only if the participant had been notified both of the inherent risks of the

activity and of the limitations of owner/operator liability. 7 M.R.S. § 252(3);

7 M.R.S. § 4103-A(3); 32 M.R.S. § 15217(3).

      [¶13]    Section 2070 differs structurally from these statutes in several

material ways. First, unlike the recreational statutes noted above, section 2070

does not expressly protect a motorist against liability to the passing cyclist.

Instead, section 2070 addresses only the conduct of the cyclist without any direct

statement about the effect of her conduct on the motorist’s liability.
8

      [¶14] Further, section 2070 does not distinguish between inherent risk and

other risks that, in the statutes governing the activities noted above, would fall

outside of the bar to liability. In an attempt to reconcile this structural difference

between section 2070 and the recreational liability statutes, Ledgemere argues that

if a motorist acts with a high level of culpability to cause an accident with a cyclist

passing on the right, the motorist would not benefit from a defense of assumption

of the risk pursuant to section 2070.

      [¶15] Ledgemere’s recognition that section 2070 should not impose an

absolute defense based on assumption of the risk, however, demonstrates why the

statute does not immunize the motorist in the first instance. Unlike the other

statutes noted above, section 2070 does not contain any language that would limit

the scope of protection from liability otherwise afforded to the motorist.          To

impose some limitation on any immunity based on assumption of the risk,

Ledgemere would have us graft additional language onto the statute.               The

Legislature has enacted laws that include the very type of language that Ledgemere

argues should be read into section 2070.        However, despite the Legislature’s

demonstrated ability to enact such a provision in other contexts, that limiting

language is absent from section 2070, and we decline to construe section 2070 as if

the Legislature itself had included that language. See DaimlerChrysler Corp. v.

Exec. Dir., Me. Revenue Servs., 2007 ME 62, ¶ 17, 922 A.2d 465. This means that
                                                                                     9

if, as Ledgemere argues, section 2070 places all risk of injury on the cyclist and

forecloses redress, the statute would create an even broader scope of liability

protection than the statutes that more clearly establish the defense in other

situations. This is a persuasive indication that the Legislature did not intend the

“risk” language in section 2070 to rise to the level of the legal doctrine of

assumption of the risk.

      [¶16] Additionally, the statutes creating the defense of assumption of the

risk in recreational contexts predicate that protection on express notification to the

participant about the existence of the risks inherent in that activity and about the

resulting immunity of the facility from liability.      That notification assists the

participant in making an informed decision about whether to assume the inherent

risks of that activity. If the facility owner or operator provides the requisite notice

to the consumer, and if the then-informed consumer chooses to proceed with the

activity, she does so with an understanding that she will forfeit a remedy for

injuries caused by the activity’s inherent risks.

      [¶17]    If Ledgemere’s construction were correct, then the scope of a

motorist’s immunity pursuant to section 2070 would be greater than the scope of

the immunity of an owner or operator under the recreation statutes because, for the

reasons discussed above, section 2070 would not restrict the defense of assumption

of the risk to situations where the motorist engages in ordinary negligent conduct.
10

Further, the motorist would receive that greater scope of protection from liability

even without a corresponding obligation to notify the party who then sustains

injury about the risks. Therefore, in the end, Ledgemere’s construction of section

2070 would give a motorist greater protection than in situations where assumption

of the risk is more clear, with none of the corresponding obligations that the

Legislature has imposed in those other contexts as a condition for the tortfeasor to

receive the benefit of that defense.

         [¶18] The Legislature has thereby demonstrated that when it intends to

create the defense of assumption of the risk, it uses a common framework that

clearly creates an exception to the more generally applicable defense of

comparative negligence. Although Ledgemere argues that section 2070 allocates

the entire risk of loss to a cyclist, the statutory framework found in other settings is

not part of section 2070, demonstrating that the Legislature did not intend the

statute to create the defense of assumption of the risk in these circumstances.

         [¶19] Further, if section 2070 provided a full defense, as Ledgemere argues,

the provisions of 29-A M.R.S. § 2060(1-A) (2010)6 would be superfluous. Section

2060(1-A) prohibits a motorist who is passing a cyclist from turning right unless

the turn can be made with complete safety. That statute applies here, and in fact,


     6
     Title 29-A M.R.S. § 2060 has since been amended. P.L. 2013, ch. 241, §§ 2-3 (effective Oct. 9,
2013) (codified at 29-A M.R.S. § 2060 (2013)).
                                                                                                      11

without objection from either party, the court instructed the jury about its terms,

because the bus passed Semian shortly before Semian proceeded to pass the bus at

the intersection of Route 1 and Berwick Road. If, as a matter of law, section 2070

prevents cyclists from recovering for injuries sustained while passing on the right,

section 2060(1-A) would be surplusage because the nature of the motorist’s own

conduct would no longer be at issue. We decline to construe section 2070 in a way

that renders section 2060(1-A) meaningless.                    See Hickson v. Vescom Corp.,

2014 ME 27, ¶ 15, 87 A.3d 704 (“All words in a statute are to be given meaning,

and no words are to be treated as surplusage if they can be reasonably construed.”

(quotation marks omitted)). Instead, sections 2060(1-A) and 2070 can be read

harmoniously if, as we hold here, the latter by itself does not bar a cyclist from

recovering damages incurred while passing a motorist who makes a right-hand turn

in the absence of complete safety. Rather, the conduct of the motorist can be

considered pursuant to section 2060(1-A), and the conduct of the cyclist can be

considered pursuant to section 2070.7

        [¶20] Section 2070 therefore does not protect a motorist from liability

merely because a cyclist passes on the right. Instead, section 2070 is best seen as a

recognition of the risk that a cyclist creates to her safety when she passes a


   7
     In fact, the court instructed the jury of Ledgemere’s duty of care pursuant to section 2060(1-A) and
of Semian’s assumption of the risk pursuant to section 2070.
12

motorist on the right, and it confirms for a fact-finder the relevance of a cyclist’s

own responsibility in the event of an accident.       Section 2070 did not entitle

Ledgemere to judgment as a matter of law, and the court correctly denied its

motions.

B.    Jury Instructions: 29-A M.R.S. § 2063

      [¶21] Semian next argues that the court erred by declining to instruct the

jury on the provisions of 29-A M.R.S. § 2063(2) and by denying its motion for a

new trial based on that ruling.

      [¶22] At the time pertinent to this action, section 2063 provided:

      Riding to the right. A person operating a bicycle or roller skis upon
      a roadway at a speed less than the normal speed of traffic moving in
      the same direction at that time and place shall drive on the right
      portion of the way as far as practicable except when it is unsafe to do
      so or:

      A. When overtaking and passing another roller skier, bicycle or other
      vehicle proceeding in the same direction;

      B. When preparing for or making a left turn at an intersection or into
      a private road or driveway;

      C. When proceeding straight in a place where right turns are
      permitted; and

      D. When necessary to avoid hazardous conditions, including, but not
      limited to, fixed or moving objects, vehicles, bicycles, roller skiers,
      pedestrians, animals, broken pavement, glass, sand, puddles, ice,
      surface hazards or opening doors from parallel-parked vehicles, or a
      lane of substandard width that makes it unsafe to continue along the
      right portion of the way. For purposes of this paragraph, “lane of
                                                                                                          13

        substandard width” means a lane that is too narrow for a bicycle or
        roller skier and a vehicle to travel safely side by side in the lane.

        [¶23] The court declined to instruct the jury on the law set out in this

statute, reasoning that section 2063 “didn’t quite fit the facts of this case in the last

few seconds which really mattered” but that the statute applied “up until a few

seconds before the impact.”8

        [¶24] We review a trial court’s denial of a requested jury instruction for

prejudicial error. “[O]n appellate review, a party can demonstrate entitlement to a

requested instruction only where the instruction was requested and not given by the

court and it: (1) states the law correctly; (2) is generated by the evidence in the

case; (3) is not misleading or confusing; and (4) is not otherwise sufficiently

covered in the court’s instructions.” Frustaci v. City of S. Portland, 2005 ME 101,

¶ 15, 879 A.2d 1001 (quotation marks omitted).

        [¶25] Section 2063 requires a cyclist to “drive on the right portion of the

way as far as practicable” if the cyclist is traveling “at a speed less than the normal

speed of traffic moving in the same direction at that time and place . . . .” The

legislative requirement that a cyclist must ride on the right, when that duty arises in

the first instance, is then subject to the exceptions enumerated in subsections

2063(2)(A)-(D). Ledgemere argues that those exceptions describe circumstances
   8
      It appears from the trial transcript that the court and counsel may have engaged in discussions off the
record about Ledgemere’s requested jury instruction based on section 2063. However, we must consider
the issue based on the limited record of the court’s ruling.
14

where a cyclist is prohibited from riding and passing other vehicles on the right,

and instead must ride on some other part of the way. It is undisputed that the

circumstances described in at least one of those exceptions are present: Semian

was driving a bicycle straight in a place where right-hand turns are permitted.

29-A M.R.S. § 2063(2)(C). From this, Ledgemere argues that the court should

have instructed the jury on the terms of section 2063, which would have allowed

the jury to determine that Semian violated that statute because she was riding her

bicycle on the right portion of the road and not elsewhere. Any such violation of

the statute would then constitute evidence of comparative negligence. See Castine

Energy Constr., Inc. v. T.T. Dunphy, Inc., 2004 ME 129, ¶ 10, 861 A.2d 671

(violation of a safety statute is evidence of negligence).

      [¶26] Ledgemere’s contention implicates the same familiar principles of

statutory construction we have noted previously. See supra ¶ 8; Strout, 2014 ME

77, ¶ 10, 94 A.3d 786. Here, we need look no further than the plain language of

section 2063(2), because the statute is unambiguous.

      [¶27] Ledgemere’s argument is based on a misapprehension of the plain

meaning of section 2063. That statute defines the circumstances when a cyclist

must ride as far as practicable to the right of the way. Beyond that, when those

circumstances are not present, the statute is silent on where the cyclist must ride.

For example, contrary to Ledgemere’s contention, section 2063 does not require a
                                                                                     15

cyclist to ride in or closer to a through lane in a location where right turns are

permitted. Rather, the only affirmative command arising from the provisions of

section 2063 is triggered when (1) the initial conditions of applicability arise (that

is, when the cyclist’s speed is “less than the normal speed of traffic moving in the

same direction at that time and place . . .”); and, (2) when none of the exceptions

described in subsections (A) through (D) applies. In the instances where the

statute controls, then the cyclist must travel to the right. Otherwise, the plain

language of the statute does not direct the cyclist to ride in any particular portion of

the way.

      [¶28] The record does not reveal the specific basis for the trial court’s

conclusion that section 2063 was inapposite to the jury’s consideration of Semian’s

comparative negligence. Nonetheless, Ledgemere itself argues that the evidence

establishes at least one of the exceptions to the requirements of section 2063, and a

review of the evidence confirms that view. This is precisely the reason why

section 2063 does not apply at all. Because the evidence necessarily invoked at

least one of the exceptions to the requirements of section 2063(2), the statute is

inapplicable.

      [¶29] Although the provisions of section 2063 do not apply to this case,

Ledgemere remained entitled to argue—as it did at trial—that because of the

manner in which she was operating a bicycle, Semian was comparatively
16

negligent, and the jury remained free to consider that affirmative defense. Further,

as is discussed supra, the court properly instructed the jury that a person operating

a bicycle passes other vehicles on the right at her own risk. 29-A M.R.S. § 2070.

However, the court did not err when it declined to instruct the jury on the specific

law as set out in section 2063, and it did not err when it denied Ledgemere’s

motion for a new trial based on its contention that the court erroneously omitted

the section 2063 instruction.9

         The entry is:

                         Judgment affirmed.



On the briefs:

         Rebecca S. Webber, Esq., and Stephen B. Wade, Esq., Skelton,
         Taintor & Abbott, Auburn, for appellant Ledgemere
         Transportation, Inc.

         Terrence D. Garmey, Esq., Gary Goldberg, Esq., and David
         Kreisler, Esq., Terry Garmey & Associates, Portland, for
         appellee Monica L. Semian

         H. Ilse Teeters-Trumpy, Esq., Taylor, McCormack & Frame,
         LLC, Portland, for amicus curiae Bicycle Coalition of Maine


     9
       In their arguments on appeal, Ledgemere and Semian contest whether the evidence generated the
initial predicate to section 2063, which focuses on the speed of the bicyclist in relation to “the normal
speed of traffic moving in the same direction at that time and place . . . .” We need not and therefore do
not reach that issue, because the exception created in section 2063(2)(D) is indisputably present and
precludes consideration of the affirmative requirements of section 2063 in any event.
                                                                               17

At oral argument:

        Rebecca S. Webber,            Esq.,    for     appellant   Ledgemere
        Transportation, Inc.

        David Kreisler, Esq., for appellee Monica L. Semian


York County Superior Court docket number CV-2012-179
FOR CLERK REFERENCE ONLY
