MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	136	
Docket:	   Cum-16-312	
Argued:	   April	12,	2017	
Decided:	  June	27,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
                                ARTHUR	MURDOCK	
                                        	
                                       v.	
                                        	
                               MARTIN	THORNE	et	al.	
	
	
JABAR,	J.	

	     [¶1]		Arthur	Murdock	appeals	from	a	summary	judgment	entered	by	the	

trial	court	(Cumberland	County,	Warren,	J.)	in	favor	of	Martin	Thorne	and	the	

Maine	 Department	 of	 Public	 Safety	 (DPS)	 on	 Murdock’s	 negligence	 claim	

against	Thorne	and	his	underinsured	motorist	claim	against	DPS.		We	affirm	

the	judgment.		

                                   I.		BACKGROUND	

	     [¶2]	 	 The	 following	 facts	 are	 derived	 from	 the	 parties’	 statements	 of	

material	fact	and	are	undisputed	unless	otherwise	noted.		See	Estate	of	Kay	v.	

Estate	of	Wiggins,	2016	ME	108,	¶	2,	143	A.3d	1290.			

	     [¶3]	 	 As	 of	 January	 26,	 2010,	 the	 date	 of	 the	 automobile	 accident	 in	

question,	 Arthur	 Murdock	 was	 serving	 as	 a	 lieutenant	 with	 the	 Maine	 State	

Police.	 	 That	 afternoon,	 Murdock	 traveled	 in	 a	 police	 cruiser	 toward	 his	
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assigned	 State	 Police	 barracks	 that	 were	 located	 near	 Skyway	 Drive	 in	

Portland.	 	 Traveling	 westbound	 on	 Skyway	 Drive,	 Murdock	 slowed	 as	 he	

neared	 the	 barracks’	 parking	 lot	 entrance	 and	 prepared	 to	 make	 a	 left	 turn	

into	 the	 compound	 across	 two	 lanes	 of	 eastbound	 traffic.	 	 The	 defendant	

Thorne	was	traveling	on	Skyway	Drive	in	the	opposite	direction.		

	     [¶4]	 	 When	 Murdock’s	 vehicle	 approached	 Thorne’s,	 Thorne’s	 car	 was	

one	 of	 many	 stopped	 at	 a	 red	 light	 located	 a	 short	 distance	 ahead	 of	 the	

barracks’	 parking	 lot.	 	 Murdock	 made	 eye	 contact	 with	 Thorne	 and	 began	 to	

angle	 his	 cruiser	 in	 front	 of	 Thorne’s	 vehicle,	 which	 was	 positioned	 in	 the	

inside	 lane	 of	 eastbound	 Skyway	 Drive	 traffic.	 	 Thorne	 understood	 that	

Murdock	wanted	to	cut	across	the	two	eastbound	lanes	of	traffic	and	into	the	

parking	 lot.	 	 Thorne	 then	 held	 up	 his	 index	 finger	 towards	 Murdock	 and	

proceeded	to	check	his	side	view	mirrors.		After	checking	the	mirrors,	Thorne	

“waved”	 Murdock	 across	 his	 lane	 of	 traffic.	 	 Murdock	 proceeded	 to	 cross	 in	

front	of	Thorne’s	vehicle	and	then	“inched	forward”	past	Thorne’s	car	to	look	

for	 oncoming	 traffic	 in	 the	 outside	 eastbound	 lane.	 	 Seeing	 none,	 Murdock	

attempted	 to	 cross	 the	 outside	 eastbound	 lane	 and	 enter	 the	 parking	 lot.		

Shortly	after	crossing	into	the	outside	eastbound	lane,	Murdock’s	cruiser	was	
                                                                                          3	

struck	by	another	vehicle	traveling	in	the	outside	eastbound	lane	from	behind	

where	Thorne’s	car	was	stopped	in	traffic.			

	     [¶5]	 	 Murdock	 suffered	 various	 injuries	 as	 a	 result	 of	 the	 accident.	 	 At	

the	 time	 of	 the	 collision,	 as	 a	 DPS	 employee,	 Murdock	 was	 covered	 under	 a	

self-insurance	 fund	 administered	 by	 the	 director	 of	 the	 Risk	 Management	

Division,	 which	 is	 part	 of	 the	 Department	 of	 Administrative	 and	 Financial	

Services.	 	 The	 Risk	 Management	 Division	 issues	 statements	 of	 self-insurance	

that	 establish	 the	 limits	 and	 scope	 of	 liability	 assumed	 by	 the	 State	 and	 its	

agencies.	 	 No	 statement	 of	 self-insurance	 issued	 at	 the	 time	 of	 the	 collision	

provided	underinsured	motorist	coverage	to	DPS	employees.			

	     [¶6]		Murdock	retired	from	the	Maine	State	Police	in	June	2010.		As	of	

September	 1,	 2014,	 Murdock	 had	 received	 and	 was	 continuing	 to	 receive	

workers’	compensation	benefits	from	the	State.			

	     [¶7]	 	 On	 December	 13,	 2013,	 Murdock	 filed	 in	 the	 Superior	 Court	 a	

four-count	 complaint	 in	 which	 he	 set	 forth	 negligence	 claims	 against	 Thorne	

and	 the	 driver	 of	 the	 vehicle	 that	 struck	 his	 cruiser,	 and	 underinsured	

motorist	 (UM)	 claims	 against	 DPS	 and	 his	 own	 carrier,	 Patrons	 Oxford	
4	

Insurance	 Company.	 	 DPS	 and	 Thorne	 successfully	 moved	 for	 the	 entry	 of	 a	

summary	judgment.1				

	        [¶8]	 	 In	 granting	 the	 motions	 for	 summary	 judgment,	 the	 court	

concluded	 that	 Murdock’s	 negligence	 claim	 against	 Thorne	 failed	 because	

Murdock	did	not	make	a	prima	facie	showing	that	Thorne’s	allegedly	negligent	

conduct	 was	 the	 proximate	 cause	 of	 Murdock’s	 injuries.	 	 In	 arriving	 at	 this	

conclusion,	 the	 court	 noted	 that	 Murdock	 acknowledged	 in	 his	 deposition	

testimony	 that,	 before	 crossing	 into	 the	 outside	 eastbound	 lane,	 it	 was	 his	

responsibility	to	make	a	determination	as	to	whether	the	lane	was	clear,	and	

that	 he	 did	 not	 rely	 on	 Thorne’s	 “wave-on”	 gesture	 before	 deciding	 to	 make	

the	 left-hand	 turn	 across	 the	 outside	 eastbound	 lane	 of	 traffic.	 	 As	 for	

Murdock’s	 UM	 claim	 against	 DPS,	 the	 court	 concluded	 that,	 because	 the	

self-insurance	 fund	 covering	 Murdock	 at	 the	 time	 of	 the	 collision	 was	

explicitly	 exempt	 from	 provisions	 of	 the	 insurance	 code	 mandating	 that	

insurance	carriers	provide	UM	coverage	in	automobile	insurance	policies,	DPS	


     1	 	 After	 the	 court	 entered	 a	 summary	 judgment	 on	 Murdock’s	 claims	 against	 Thorne	 and	 DPS,	

Murdock	successfully	moved	for	the	entry	of	a	final	judgment	for	the	purposes	of	allowing	him	to	
seek	appellate	review.		See	M.R.	Civ.	P.	54(b)(2).		We	dismissed	Murdock’s	appeal	after	concluding	
that	the	trial	court	improvidently	granted	his	Rule	54(b)(2)	motion	given	“[t]he	possibility	that	the	
need	 for	 review	 may	 be	 mooted	 by	 future	 developments	 in	 the	 trial	 court.”	 	 Murdock	 v.	 Thorne,	
2016	ME	 41,	 ¶¶	 1,	 6,	 135	 A.3d	 96	 (alteration	 in	 original)	 (quotation	 marks	 omitted).	 	 Thorne	
subsequently	secured	dismissals	of	his	remaining	claims	against	the	driver	of	the	car	that	collided	
with	his	and	Patrons	Oxford	and	filed	the	appeal	now	before	us.				
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was	not	obligated	to	provide	Murdock	with	that	coverage.		Because	the	court	

concluded	that	Murdock’s	UM	claim	against	DPS	failed	on	these	grounds,	it	did	

not	address	DPS’s	remaining	contentions	that	Murdock’s	UM	claims	were	also	

barred	by	sovereign	immunity	and	Maine’s	workers’	compensation	statute.				

	        [¶9]		Murdock	now	appeals	the	court’s	entry	of	summary	judgment	on	

his	 negligence	 claim	 against	 Thorne	 and	 his	 UM	 claim	 against	 DPS.	 	 DPS	

cross-appeals.2				

                                            II.		DISCUSSION	

A.	      Standard	of	Review	

	        [¶10]	 	 We	 review	 a	 grant	 of	 summary	 judgment	 de	 novo,	 viewing	 the	

facts	 and	 all	 favorable	 inferences	 derived	 therefrom	 in	 favor	 of	 the	

nonprevailing	 party.	 	 See	 Burdzel	 v.	 Sobus,	 2000	 ME	 84,	 ¶	 6,	 750	 A.2d	 573;	

Lidstone	v.	Green,	469	A.2d	843,	845	(Me.	1983).		

B.	      Murdock’s	Negligence	Claim	

	        [¶11]	 	 When	 a	 plaintiff	 alleges	 negligence,	 to	 survive	 a	 defendant’s	

motion	for	summary	judgment,	he	“must	establish	a	prima	facie	case	for	each	

element	 of	 the	 cause	 of	 action.”	 	 Mastriano	 v.	 Blyer,	 2001	 ME	 134,	 ¶	 11,	

    2	 	 DPS	 cross-appeals	 purely	 for	 the	 purpose	 of	 preserving	 its	 arguments	 not	 reached	 by	 the	

Superior	Court	that	Murdock’s	UM	claims	against	DPS	were	also	barred	pursuant	to	the	doctrine	of	
sovereign	immunity	and	the	exclusivity	and	immunity	provisions	of	Maine’s	workers’	compensation	
statute.				
6	

779	A.2d	 951.	 	 “A	 prima	 facie	 case	 of	 negligence	 requires	 a	 plaintiff	 to	

establish	 four	 elements:	 duty,	 breach,	 causation,	 and	 damages.”	 	 Id.	 	 Because	

Murdock	has	failed	to	make	a	prima	facie	case	for	the	causation	element	of	his	

negligence	claim,	we	affirm	the	trial	court’s	grant	of	a	summary	judgment	on	

that	claim.			

	      [¶12]		Murdock	argues	that,	notwithstanding	his	admission	that	he	had	

to	make	his	“own	determination”	as	to	whether	it	was	safe	to	cross	the	outside	

eastbound	lane	into	the	parking	lot	before	turning,	the	court	erred	in	granting	

summary	judgment	because,	when	viewing	the	record	as	a	whole,	a	jury	could	

infer	that	Murdock	relied	on	Thorne’s	“wave-on”	when	making	the	left	turn.		

	      [¶13]	 	 Causation	 is	 a	 question	 of	 fact,	 and	 “[t]o	 support	 a	 finding	 of	

proximate	 cause,	 there	 must	 be	 some	 evidence	 indicating	 that	 a	 foreseeable	

injury	 did	 in	 fact	 result	 from	 the	 negligence.”	 	 Merriam	 v.	 Wanger,	 2000	 ME	

159,	¶	9,	757	A.2d	778;	see	Searles	v.	Trs.	of	St.	Joseph’s	Coll.,	1997	ME	128,	¶	8,	

695	A.2d	1206.			

	      [¶14]		Courts	analyzing	negligence	claims	based	on	a	defendant	driver’s	

“wave-on”	 gesture	 have	 generally	 required	 plaintiffs	 to	 produce	 evidence	 of	

reliance	to	satisfy	the	element	of	causation.		See	Dionne	v.	Progressive	Ins.	Co.,	

No.	CV-99-38,	2000	Me.	Super.	LEXIS	61,	at	*	4-5	(April	11,	2000)	(concluding	
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that,	 because	 it	 was	 undisputed	 that	 the	 plaintiff	 did	 not	 rely	 on	 the	

defendant’s	 gesture,	 the	 plaintiff	 could	 not	 establish	 causation);	 Kemp	 v.	

Armstrong,	392	A.2d	1161,	1164-65	(Md.	Ct.	Spec.	App.	1978);	Gamet	v.	Jenks,	

197	N.W.2d.	160,	164	(Mich.	Ct.	App.	1972).		

	     [¶15]		Although	Murdock	asserts	that	his	“actions	indicate	that	he	relied	

on	.	.	.	Thorne’s	communications	and	representations”	when	deciding	to	cross	

the	 eastbound	 lanes,	 the	 evidence,	 even	 when	 viewed	 in	 the	 light	 most	

favorable	 to	 Murdock,	 does	 not	 support	 this	 inference.	 	 In	 Murdock’s	

deposition,	 he	 explained	 that	 after	 seeing	 Thorne’s	 gesture	 to	 him	 “I	 turned;	

but	 I	 slowed	 to	 see	 if	 anything	 was	 coming	 up	 alongside	 him	 and,	 [there]	

wasn’t.		And	I	turned	to	look	in	the	driveway.		No	traffic	was	coming	there,	and	

I	accelerated.”		Murdock	elaborated	that	when	he	turned,	

      [t]he	 lane	 was	 clear.	 	 There	 was	 no	 car	 there.	 	 Because	 when	 I	
      started	out,	I	stopped	to—the	car	was—that	was	blocking	my	way,	
      [Thorne’s]	SUV,	I	stopped	slightly	to	see	for	sure	that	no	traffic	was	
      coming.	
	
(Emphasis	added).			

      [¶16] Similarly,	 Murdock’s	 assertion	 in	 his	 statement	 of	 material	 fact	

that	he	relied	on	Thorne’s	gesture	and	“immediately	began	to	execute	the	left	

turn”	 after	 receiving	 the	 “wave-on”	 from	 Thorne	 is	 refuted	 by	 his	 own	

deposition	testimony.		See	Zip	Lube,	Inc.	v.	Coastal	Sav.	Bank,	1998	ME	81,	¶	10,	
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709	A.2d	 733	 (“When	 an	 interested	 witness	 has	 given	 clear	 answers	 to	

unambiguous	 questions,	 he	 cannot	 create	 a	 conflict	 and	 resist	 summary	

judgment	 with	 an	 affidavit	 that	 is	 clearly	 contradictory,	 but	 does	 not	 give	 a	

satisfactory	explanation	of	why	the	testimony	is	changed.”)	(quotation	marks	

omitted)).	 	 Murdock	 testified	 that	 after	 initiating	 the	 turn	 he	 “stopped	 and	

slowed	 down,	 inched	 forward	 to	 where	 I	 could	 see	 [the	 outside	 eastbound]	

lane;	and	then	I	pulled	out.”		Murdock	further	testified	as	follows:	

      [Thorne’s	attorney]:	And	the	reason	that	you	stopped	and	inched	
      forward	 is	 because	 you	 know	 you	 can’t	 rely	 on	 someone	 who’s	
      letting	you	turn	left	in	front	of	them,	correct?	
      	
      [Murdock]:		That’s	correct.	
      	
      Q.		You	have	to	make	your	own	determination	of	whether	or	not	a	
      lane	is	clear	before	you	can	cross	that	lane.	True?		
      	
      A.		That’s	true.		
      	
      Q.		And	that’s	the	law,	isn’t	it?	
      	
      A.		That’s	true.		
      	
      Q.		And	you’ve	taught	that	to	many	people	over	the	years,	correct?	
      	
      A.		That’s	true,	and	the	lane	was	clear	at	that	time.			
      	
	     [¶17]	 	 Murdock’s	 testimony	 regarding	 his	 actions	 after	 being	 “waved	

on”	by	Thorne	establishes	that	while	he	may	have	relied	on	Thorne’s	gesture	

to	pull	his	vehicle	in	front	of	Thorne’s	in	the	inside	eastbound	lane,	he	made	
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an	 independent,	 albeit	 flawed,	 assessment	 of	 the	 traffic	 conditions	 in	 the	

outside	lane	before	turning	and	did	not	rely	on	the	gesture	when	making	the	

turn	 across	 the	 outside	 lane	 toward	 the	 parking	 lot.	 	 See	 Kemp,	 392	 A.2d	 at	

1165	(concluding	that	the	plaintiff	failed	to	establish	proximate	cause	where	

the	 plaintiff	 “‘satisfied’	 himself,	 albeit	 negligently,	 that	 the	 way	 was	 clear”	

without	 relying	 on	 the	 defendant).	 	 Therefore,	 because	 Murdock	 failed	 to	

make	a	prima	facie	showing	that	Thorne’s	gesture	was	the	proximate	cause	of	

his	 injuries,	 Thorne	 was	 entitled	 to	 summary	 judgment	 on	 Murdock’s	

negligence	claim.		

C.	        Murdock’s	Underinsured	Motorist	Claim		

	          [¶18]	 	 Because	 Murdock’s	 UM	 claim	 against	 DPS	 is	 predicated	 on	 his	

entitlement	 to	 recover	 on	 his	 negligence	 claim	 against	 Thorne,	 and	 because	

we	conclude	that	Murdock	is	not	legally	entitled	to	recover	on	that	claim,	we	

need	 not	 address	 DPS’s	 argument	 that	 the	 self-insurance	 provided	 to	 its	

employees	 by	 the	 State’s	 Risk	 Management	 Division	 is	 not	 subject	 to	 the	

mandates	 of	 Maine’s	 UM	 statute.3	 	 See	 24-A	 M.R.S.	 §	 2902(1)	 (2016);	

Wells	Fargo	Bank,	N.A.	v.	Girouard,	2015	ME	116,	¶	10,	123	A.3d	216	(declining	



      3	 	 For	 the	 same	 reasons,	 we	 do	 not	 address	 the	 issues	 raised	 in	 DPS’s	 cross-appeal,	 nor	 do	 we	

address	the	question	of	duty	regarding	Thorne’s	actions.			
10	

to	reach	an	issue	that	was,	at	the	time,	“entirely	hypothetical”).		Therefore,	we	

also	affirm	the	court’s	grant	of	summary	judgment	in	favor	DPS.			

         The	entry	is:	

                            Judgment	affirmed.		
	
	      	      	       	      	     	
	
Philip	P.	Mancini,	Esq.,	Michael	T.	Devine,	Esq.,	Danelle	R.	Milone,	Esq.,	Andrew	
W.	 Sparks,	 Esq.,	 and	 David	 J.	 Marchese,	 Esq.	 (orally),	 Drummond	 &	
Drummond,	LLP,	Portland,	for	Arthur	Murdock	
	
Elizabeth	 A.	 Germani,	 Esq.	 (orally),	 Germani	 Martemucci	 &	 Hill,	 Portland,	 for	
appellee	Martin	Thorne	
	
Janet	 T.	 Mills,	 Attorney	 General,	 and	 Thomas	 A.	 Knowlton,	 Asst.	 Atty.	 Gen.	
(orally),	 Office	 of	 the	 Attorney	 General,	 Augusta,	 for	 appellee	 Department	 of	
Public	Safety	
	
	
Cumberland	County	Superior	Court	docket	number	CV-2013-534	
FOR	CLERK	REFERENCE	ONLY	
	
