MAINE	SUPREME	JUDICIAL	COURT	                                    Reporter	of	Decisions	
Decision:	 2018	ME	98	
Docket:	   Cum-17-448	
Argued:	   May	15,	2018	
Decided:	  July	12,	2018	
	
Panel:	    ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                          KATHLEEN	WEST	et	al.	
                                   	
                                  v.	
                                   	
                 JEWETT	AND	NOONAN	TRANSPORTATION,	INC.	
	
	
HUMPHREY,	J.	

	     [¶1]		The	crux	of	this	dispute	on	appeal	is	whether,	when	the	defendant	

has	 caused	 a	 physical	 invasion	 of	 the	 plaintiff’s	 property,	 the	 plaintiff	 must	

present	 evidence	 of	 a	 specific	 diminution	 in	 market	 value	 in	 order	 to	

successfully	prove	nuisance.	

      [¶2]	 	 Jewett	 and	 Noonan	 Transportation,	 Inc.	 (Jewett),	 appeals	 from	 a	

judgment	of	the	Superior	Court	(Cumberland	County,	Horton,	J.)	entered	upon	

a	 jury	 verdict	 awarding	 Kathleen	 and	 Erik	 West	 (the	 Wests)	 compensatory	

damages	 in	 the	 amount	 of	 $490,000	 on	 the	 Wests’	 claim	 of	 nuisance.	 	 Jewett	

contends	 that	 the	 trial	 court	 (1)	 erred	 when	 it	 denied	 Jewett’s	 motions	 for	

judgment	as	a	matter	of	law	on	the	nuisance	claim	because	the	Wests	did	not	

present	evidence	of	a	specific	diminution	in	market	value	to	their	land	and	(2)	
2	

erred	or	abused	its	discretion	when	it	allowed	the	Wests	to	introduce	evidence	

relating	 to	 the	 conduct	 of	 Jewett’s	 insurer	 in	 support	 of	 the	 Wests’	 claims	

against	Jewett.		We	disagree	and	affirm	the	judgment.	

                                   I.		BACKGROUND	

       [¶3]		Viewed	in	the	light	most	favorable	to	the	Wests	as	the	prevailing	

parties,	the	following	facts	were	established	 at	trial.	 	See	Batchelder	v.	Realty	

Res.	Hosp.,	LLC,	2007	ME	17,	¶	3,	914	A.2d	1116.		On	June	11,	2014,	an	oil	tanker	

owned	and	operated	by	Jewett	overturned	in	a	traffic	circle	in	Gorham.		As	a	

result	of	the	accident,	over	9,000	gallons	of	oil	and	kerosene	spilled	from	the	

tanker	into	a	culvert	and	onto	property	belonging	to	the	Wests.			

       [¶4]		The	Wests	acquired	their	property,	which	consisted	of	twelve	acres	

of	land	and	a	house,	in	2011	with	plans	to	subdivide	and	develop	the	property.		

Erik	 West,	 who	 previously	 owned	 a	 construction	 company,	 had	 begun	 to	

explore	 development	 possibilities	 prior	 to	 the	 spill:	 he	 spoke	 with	 Gorham’s	

code	enforcement	officer,	hired	an	engineering	company	to	create	preliminary	

designs	 for	 the	 development,	 met	 with	 Gorham’s	 town	 planner	 and	 with	 a	

representative	from	the	engineering	company,	and	discussed	the	property	with	

four	 interested	 real	 estate	 developers.	 	 After	 the	 spill,	 each	 of	 the	 potential	

developers	lost	interest.			
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       [¶5]	 	 The	 Maine	 Department	 of	 Environmental	 Protection	 (the	

Department)	 coordinated	 clean-up	 efforts	 between	 the	 Wests	 and	 Jewett.		

Jewett	 assembled	 a	 team	 to	 handle	 the	 remediation	 that	 included	 Jewett’s	

safety	 director,	 an	 engineer	 and	 an	 environmental	 scientist	 from	 an	

environmental	engineering	firm,	and	a	representative	from	Jewett’s	insurer.		By	

the	 end	 of	 the	 summer	 of	 2014,	 Jewett	 had	 captured	 approximately	 7,800	

gallons	 of	 the	 oil,	 but	 tests	 performed	 by	 Jewett’s	 remediation	 team	 showed	

levels	of	soil	contamination	in	excess	of	the	Department’s	standards.			

       [¶6]		In	late	August	2014,	the	Wests	communicated	to	Jewett	that	they	

wanted	Jewett	to	remediate	the	remaining	oil	through	excavation.		Although	the	

Jewett	team	decided	that	natural	attenuation	was	the	most	cost-effective	means	

to	address	the	remaining	oil	and	did	not	think	excavation	would	be	necessary,	

it	did	not	communicate	its	preferred	plan	to	the	Wests	at	that	time.		Meanwhile,	

Jewett	 sought	 extensions	 of	 deadlines	 set	 by	 the	 Department,	 stalled	 the	

performance	of	the	Department’s	order	to	excavate,1	and	continued	to	request	

additional	soil	sampling	of	the	spill	site,	despite	the	Department’s	opposition	to	

further	 sampling.	 	 Eventually,	 Jewett	 performed	 additional	 sampling	 in	


  1	 	 For	 example,	 the	 Jewett	 team	 members	 discussed	 over	 email	 the	 idea	 of	 parking	 excavation	

equipment	on	the	property	to	create	the	appearance	that	excavation	would	be	imminent,	despite	the	
fact	that	the	team	still	hoped	to	avoid	excavation	altogether.			
4	

July	2015.		The	results	of	this	sampling	showed	lower	contamination	levels	than	

the	sampling	performed	in	2014.		This	supported	Jewett’s	argument	for	natural	

attenuation	and	 prompted	the	 Department	to	determine	that	excavation	was	

no	longer	necessary.		When	Jewett	concluded	its	remediation	efforts,	roughly	

800	gallons	of	oil	remained	unaccounted	for.			

       [¶7]	 	 On	 December	 7,	 2015,	 the	 Wests	 filed	 a	 complaint	 against	 Jewett	

alleging	 claims	 of	 (1)	 common	 law	 trespass;	 (2)	 statutory	 trespass;	

(3)	negligence;	 (4)	 nuisance;	 and	 (5)	 strict	 liability;	 and	 requesting	

compensatory,	double,	and	punitive	damages.		During	the	pendency	of	the	case,	

the	court	granted	Jewett’s	motion	for	summary	judgment	on	the	Wests’	claims	

of	 statutory	 trespass	 and	 strict	 liability,	 but	 denied	 Jewett’s	 motions	 for	

summary	judgment	on	the	remaining	claims	and	also	denied	the	Wests’	motion	

for	summary	judgment.			

       [¶8]	 	 After	 a	 jury	 was	 selected,	 the	 parties	 filed	 seven	 motions	 and	

cross-motions	 in	 limine	 to	 exclude	 certain	 evidence	 at	 trial.	 	 Relevant	 to	 this	

appeal,	the	court	granted	Jewett’s	motion	to	exclude	evidence	of	lost	profits	or	

other	 dollar	 loss	 as	 a	 result	 of	 the	 spill	 but	 allowed	 the	 Wests	 to	 present	

evidence	 that	 the	 remaining	 oil	 inhibited	 marketing	 or	 development	 of	 the	

property.		It	also	denied	Jewett’s	motion	to	exclude	evidence	that	it	was	insured	
                                                                                                   5	

because	the	Wests	merely	sought	to	offer	evidence	relating	to	the	conduct	of	

the	Jewett’s	insurer	on	behalf	of	Jewett	during	the	remediation	process,	not	as	

evidence	that	Jewett	was	insured	against	liability.		See	M.R.	Evid.	411.			

       [¶9]		A	jury	trial	took	place	over	four	days	in	August	2017.		At	the	outset,	

the	Wests	told	the	jury	that	they	sought	compensatory	damages	for	restoration	

purposes	only.		The	Wests’	expert,	a	civil	engineer,	testified	that	the	restoration	

would	cost	$490,000.			

       [¶10]	 	 When	 the	 Wests	 rested	 their	 case,	 Jewett	 filed	 motions	 for	

judgment	 as	 a	 matter	 of	 law	 on	 the	 Wests’	 claims	 for	 punitive	 damages	 and	

nuisance.		In	support	of	its	argument	on	nuisance,	Jewett	asserted	that	it	was	

entitled	 to	 judgment	 because	 the	 Wests	 carried	 the	 burden	 of	 showing	 a	

reduction	in	the	value	of	the	land	as	an	element	of	nuisance	and	had	failed	to	

present	any	evidence	of	a	reduction	in	value.		The	court	denied	both	motions.2			

       [¶11]		After	both	parties	rested,	the	court	instructed	the	jury—without	

objection—that	“[t]he	measure	for	damage	to	property	is	ordinarily	the	cost	of	

restoring	the	land	to	its	original	condition	unless	the	cost	is	disproportionate	

to	the	diminution	or	reduction	in	value	 of	the	land	caused	by	the	trespass	or	



   2		Jewett	renewed	these	motions	for	judgment	as	a	matter	of	law	after	it	rested	its	case,	and	the	

court	denied	both	motions	again.			
6	

nuisance,	 in	 which	 case	 damages	 are	 measured	 by	 the	 difference	 in	 value	

between	.	.	.	the	land	before	and	after	the	harm.”			

      [¶12]		The	jury	returned	a	verdict	in	favor	of	the	Wests	on	their	nuisance	

claim	only,	awarding	them	compensatory	damages	in	the	amount	of	$490,000	

and	 declining	 to	 award	 punitive	 damages.	 	 Jewett	 renewed	 its	 motion	 for	

judgment	as	a	matter	of	law	on	the	nuisance	claim	and	also	moved	for	a	new	

trial,	for	remittitur,	or	to	amend	or	alter	the	judgment.		See	M.R.	Civ.	P.	50(b),	

59(a),	(e).		The	court	denied	these	motions	and	Jewett	appealed.			

                                   II.		DISCUSSION	

A.	   Nuisance	

	     [¶13]	 	 Jewett	 argues	 that	 the	 trial	 court	 erred	 when	 it	 denied	 Jewett’s	

motions	for	judgment	as	a	matter	of	law	on	the	Wests’	nuisance	claim	because	

the	Wests	did	not	present	any	evidence	of	a	specific	diminution	in	market	value	

of	their	land	due	to	the	spill.		“We	review	the	denial	of	a	motion	for	judgment	as	

a	matter	of	law	de	novo	to	determine	if	any	reasonable	view	of	the	evidence	and	

those	inferences	that	are	justifiably	drawn	from	that	evidence	supports	the	jury	

verdict.”		Darling’s	Auto	Mall	v.	General	Motors	LLC,	2016	ME	48,	¶	11,	135	A.3d	

819	(quotation	marks	omitted).		We	view	“all	of	the	evidence	in	the	light	most	

favorable	to	the	party	opposing	the	motion”—in	this	case,	the	Wests.		See	Profit	
                                                                                            7	

Recovery	Grp.,	USA,	Inc.	v.	Comm’r,	Dep’t	of	Admin.	&	Fin.	Servs.,	2005	ME	58,	¶	10,	

871	A.2d	1237.			

	      [¶14]		We	have	adopted	the	elements	for	a	common	law	cause	of	action	

for	private	nuisance	from	the	seminal	treatise	on	the	law	of	torts	from	Prosser	

and	Keeton.		See	Charlton	v.	Town	of	Oxford,	2001	ME	104,	¶	36,	774	A.2d	366;	

see	 also	 Keeton	 et	 al.,	 Prosser	 and	 Keeton	 on	 the	 Law	 of	 Torts	 §	 87	 at	 622-23	

(5th	ed.	1984).		Those	elements	are	as	follows:	

      (1)		The	defendant	acted	with	the	intent	of	interfering	with	the	use	
      and	enjoyment	of	the	land	by	those	entitled	to	that	use;	
      	
      (2)		 There	was	some	interference	with	the	use	and	 enjoyment	of	
      the	land	of	the	kind	intended,	although	 the	amount	and	extent	of	
      that	interference	may	not	have	been	anticipated	or	intended;	
      	
      (3)	 	 The	 interference	 that	 resulted	 and	 the	 physical	 harm,	 if	 any,	
      from	 that	 interference	 proved	 to	 be	 substantial[.	 .	 .	 .]	 	 The	
      substantial	 interference	 requirement	 is	 to	 satisfy	 the	 need	 for	 a	
      showing	 that	 the	 land	 is	 reduced	 in	 value	 because	 of	 the	
      defendant’s	conduct;	
      	
      (4)	 	 The	 interference	 that	 came	 about	 under	 such	 circumstances	
      was	 of	 such	 a	 nature,	 duration	 or	 amount	 as	 to	 constitute	
      unreasonable	 interference	 with	 the	 use	 and	 enjoyment	 of	 the	
      land	.	.	.	.	
      	
Charlton,	2001	ME	104,	¶	36,	774	A.2d	366	(quoting	Keeton	et	al.,	Prosser	and	

Keeton	 on	 the	 Law	 of	 Torts	 §	 87	 at	 622-23);	 see	 also	 Johnston	 v.	 Me.	 Energy	
8	

Recovery	 Co.,	 2010	 ME	 52,	 ¶	 15,	 997	A.2d	 741	 (providing	 a	 summary	 of	 the	

elements	of	nuisance).		It	is	only	the	third	element	that	is	in	dispute	in	this	case.			

       [¶15]	 	 When	 discussing	 the	 “substantial	 interference”	 requirement,	

Prosser	and	Keeton	distinguishes	between	an	invasion	that	“affects	the	physical	

condition	 of	 the	 plaintiff’s	 land”	 and	 conduct	 that	 involves	 “mere	 physical	

discomfort	or	mental	annoyance.”		See	Keeton	et	al.,	Prosser	and	Keeton	on	the	

Law	 of	 Torts	 §	 88	 at	 627.	 	 For	 the	 former,	 “the	 substantial	 or	 significant	

character	 of	 the	 interference	 is	 not	 in	 doubt.”	 	 Id.	 	 For	 the	 latter,	 “there	 is	

somewhat	more	difficulty	in	deciding	when	the	interference	is	substantial	and	

unreasonable	justifying	a	recovery	for	damages.		Probably	a	good	working	rule	

would	be	that	the	annoyance	cannot	amount	to	unreasonable	interference	until	

it	 results	 in	 a	 depreciation	 in	 the	 market	 or	 rental	 value	 of	 the	 land.”	 	 Id.;	

Charlton,	2001	ME	104,	¶	36	n.10,	774	A.2d	366.			

       [¶16]		In	this	case,	the	oil	spill	“affect[ed]	the	physical	condition”	of	the	

Wests’	 land	 and	 therefore	 “the	 substantial	 or	 significant	 character	 of	 the	

interference	is	not	in	doubt.”		See	Keeton	et	al.,	Prosser	and	Keeton	on	the	Law	

of	Torts	§	88	at	627.		Because	the	interference	was	more	than	“mere	physical	

discomfort	 or	 mental	 annoyance,”	 the	 Wests	 did	 not	 need	 to	 show	 a	 specific	

“depreciation	in	the	market	or	rental	value	of	the	land.”		See	Charlton,	2001	ME	
                                                                                          9	

104,	¶	36	n.10,	774	A.2d	366	(quoting	Keeton	et	al.,	Prosser	and	Keeton	on	the	

Law	of	Torts	§	88	at	627).		The	Wests	satisfied	the	third	element	by	presenting	

evidence	that	(1)	the	oil	physically	 invaded	their	land	 and	 (2)	interest	in	the	

development	of	their	property	disappeared	after	the	spill—in	other	words,	that	

the	 interference	 caused	 by	 the	 physical	 invasion	 was	 substantial.	 	 The	 trial	

court	therefore	did	not	err	when	it	denied	Jewett’s	motions	for	judgment	as	a	

matter	of	law	on	the	nuisance	claim.			

B.	    Evidence	of	the	Insurer’s	Conduct		

	      [¶17]	 	 Jewett	 also	 argues	 that	 the	 court	 erred	 or	 abused	 its	 discretion	

when	 it	 allowed	 the	 Wests	 to	 introduce	 evidence	 of	 the	 conduct	 of	 Jewett’s	

insurer	 at	 trial.	 	 In	 particular,	 Jewett	 contends	 that,	 by	 denying	 (1)	 Jewett’s	

motion	in	limine	to	exclude	evidence	of	the	insurer’s	conduct	and	(2)	Jewett’s	

motions	 for	 judgment	 as	 a	 matter	 of	 law	 on	 the	 punitive	 damages	 issue,	 the	

court	improperly	allowed	the	insurer’s	conduct	to	form	the	basis	for	the	Wests’	

punitive	damages	claim.		Jewett	asserts	that	even	though	the	jury	did	not	award	

punitive	damages,	the	evidence	was	prejudicial	and	influenced	the	jury’s	award	

of	compensatory	damages	on	the	nuisance	claim.			

       [¶18]	 	 “We	 afford	 trial	 courts	 ‘wide	 discretion’	 in	 making	 evidentiary	

rulings,	and	review	for	abuse	of	discretion	their	rulings	on	the	admissibility	of	
10	

evidence	 with	 respect	 to	 its	 prejudicial	 effect.”	 	 Estate	 of	 Nickerson	 v.	 Carter,	

2014	ME	19,	¶	12,	86	A.3d	658.		

       [¶19]		The	court	did	not	err	or	abuse	its	discretion	when	it	denied	Jewett’s	

motion	 in	 limine,	 which	 sought	 to	 exclude	 evidence	 of	 Jewett’s	 insurer’s	

conduct	in	support	of	the	Wests’	claim	for	punitive	damages.		Jewett	argued	that	

the	 evidence	 should	 have	 been	 excluded	 pursuant	 to	 M.R.	 Evid.	 411,	 which	

provides	that	“[e]vidence	that	a	person	was	or	was	not	insured	against	liability	

is	not	admissible	to	prove	whether	the	person	acted	negligently	or	otherwise	

wrongfully.”		The	court	correctly	determined,	however,	that	the	Wests	were	not	

offering	 the	 evidence	 as	 proof	 that	 Jewett	 was	 insured	 against	 liability.	 	 The	

evidence	 presented	 by	 the	 Wests	 that	 referenced	 the	 conduct	 of	 the	 insurer	

related	to	their	punitive	damages	claim,	and	was	intended	to	convince	the	jury	

to	find,	by	clear	and	convincing	evidence,	that	the	remediation	team	assembled	

by	 Jewett,	 which	 included	 the	 insurer,	 acted	 with	 malice	 when	 it	 sought	 to	

deceive	the	Wests	during	the	clean-up	process.			

       [¶20]		Jewett	also	seems	to	challenge	the	notion	that	the	conduct	of	its	

insurer	could	form	the	basis	of	Jewett’s	liability.		The	court	instructed	the	jury,	

without	objection,	that	“[a]	corporation	 may	be	.	.	.	responsible	for	the	acts	of	

people	 who	 are	 not	 its	 employees	 if	 the	 evidence	 shows	 that	 it’s	 more	 likely	
                                                                                                                11	

than	not	that	the	defendant	has	ratified	those	actions	by	approving	the	actions	

or	 accepting	 the	 benefit	 of	 those	 actions,	 or	 if	 the	 evidence	 shows	 that	 the	

defendant	led	the	plaintiffs	to	believe	that	those	other	people	had	the	authority	

to	act	on	behalf	of	the	defendant.”		Because	the	Wests	presented	evidence	that	

Jewett	“led	[them]	to	believe”	that	the	insurer	“had	the	authority	to	act	on	behalf	

of”	Jewett3	by	placing	the	insurer	on	its	remediation	team,	the	jury	could	have	

reasonably	found	that	Jewett	was	responsible	for	the	acts	of	the	insurer.	

	       [¶21]	 	 Finally,	 Jewett	 has	 failed	 to	 show	 how	 it	 was	 prejudiced	 by	 the	

evidence	 relating	 to	 its	 insurer.	 	 See	 Estate	 of	 Nickerson,	 2014	 ME	 19,	 ¶	 12,	

86	A.3d	658.		Jewett’s	motions	made	prior	to,	during,	and	after	trial	relating	to	

this	issue	concerned	the	Wests’	claim	for	punitive	damages	and	the	jury	did	not	

award	punitive	damages	in	this	case.4			

        The	entry	is:	

                          Judgment	affirmed.		
	
	       	        	        	        	        	
	                                  	

    3		Jewett’s	safety	director	testified	that	Jewett’s	insurer	“was	the	one	that	was	controlling	this”—

referring	to	the	role	the	insurer	had	in	the	negotiations	between	Jewett	and	the	Wests’	attorney.			
    4		The	jury	instead	awarded	damages	on	the	Wests’	claim	for	nuisance	in	the	precise	amount	the	

Wests’	 expert	 estimated	 for	 the	 cost	 of	 recovery.	 	 If	 Jewett	 had	 been	 concerned	with	 whether	the	
conduct	 of	 its	 insurer	 could	 form	 the	 basis	 for	 its	 own	 liability,	 Jewett	 could	 have	 challenged	 the	
sufficiency	 of	 the	 evidence	 to	 support	 the	 first	 element	 of	 nuisance,	 which	 requires	 proof	 of	 the	
defendant’s	intent	to	cause	or	continue	the	interference.		See	Johnston	v.	Me.	Energy	Recovery	Co.,	2010	
ME	52,	¶	15,	997	A.2d	741.		Jewett	did	not	do	so.	
12	

Stephen	 A.	 Bell,	 Esq.	 (orally),	 Mundhenk	 &	 Bell,	 LLC,	 Portland,	 for	 appellant	
Jewett	and	Noonan	Transportation,	Inc.		
	
Gavin	 G.	McCarthy,	Esq.	(orally),	Catherine	R.	Connors,	Esq.,	 and	Katherine	S.	
Kayatta,	 Esq.,	 Pierce	 Atwood	 LLP,	 Portland,	 for	 appellees	 Erik	 and	 Kathleen	
West	
	
	
Cumberland	County	Superior	Court	docket	number	RE-2015-247	
FOR	CLERK	REFERENCE	ONLY	
