STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CMLACTION DOCKET NO. CV-20-372
546 SHORE, LLC, HUGH O'SHEA, MARGARET O'SHEA, AND HUGH O'SHEA AND MARGARET O'SHEA ON HEHALF OF NORA O'SHEA ORDER Plaintiffs
v.
DEARBORN BROTHERS CONSTRUCTION, INC.,
Defendant
This matter comes before the court on Defendant, Dearborn Brothers
Construction's, Motion for Summary Judgment. After due consideration, Defendant's
Motion is denied.
I. Factual Background
The Plaintiffs own and live in a home in Cape Elizabeth, Maine. On May 16, 2019,
the Defendant construction company was conducting utility work on a water pipe in the
vicinity of Plaintiffs' home. During the utility project; the Defendant caused a large
amount of water to flood and damage the Plaintiffs' home. The Plaintiffs were present
for the incident and described it as traumatic. However, none of the Plaintiffs suffered
physical injury as a result of the incident. The Defendant has conceded that it was
negligent during the course of the utility project and that its negligence caused the
Plaintiffs' home to flood.
1 The Plaintiffs instituted the present lawsuit against the Defendant alleging that its
negligence indeed caused damage to Plaintiffs' property and that they have also suffered
various non-physical damages, including: annoyance and discomfort; interference with
and diminution of their enjoyment of their property; and emotional distress. The
Plaintiffs and Defendant appear to have reached a settlement regarding the physical
damage caused to Plaintiffs' property. The only issue left for trial is Plaintiffs attempt to
recover the non-physical damages alleged. The Defendant has filed this Motion for
Summary Judgment arguing that the Plaintiffs are not entitled to recover these non
physical damages as a matter of law.
II. Summary Judgment Standard
A party is entitled to summary judgment when review of the parties' statements
of material facts and the record to which the statements refer, demonstrates that there is
no genuine issue as to any material fact in dispute. Dyer v. Dep't of Transp., 2008 ME 106,
'l[ 14, 951 A.2d 821; M.R. Civ. P. 56(c). "Facts contained in a supporting or opposing
statement of material facts, if supported by record citations as required by this rule, shall
be deemed admitted unless properly controverted." M. R. Civ. P. 56(h)(4). A contested
fact is "material" if it could potentially affect the outcome of the case. Id. A "genuine
issue" of material fact exists if the claimed fact would require a factfinder to "choose
between competing versions of the truth." Dyer, 2008 ME 106, 'l[ 14, 951 A.2d 821
(quotations omitted). To survive a defendant's motion for summary judgment, the
plaintiff must establish a prima fade case for every element of the plaintiff's cause of
action. See Savell v. Duddy, 2016 ME 139, 'l[ 18, 147 A.3d 1179. The court reviews the
evidence in the light most favorable to the non-moving party. Id.
III. Discussion
In a straightforward negligence claim, the plaintiff must prove that the defendant
2 breached a duty of care owed to the plaintiff and that the defendant's breach of the
requisite duty of care caused the plaintiff to suffer damages. See Bell ex re. Bell v. Dawson,
2013 ME 108, 'l[ 17, 82 A.3d 827.
Here, the Defendant argues that the Plaintiffs' lawsuit is not a straightforward
negligence claim because Plaintiffs are attempting to recover damages that were the
result of non-physical injuries. The Defendant furthers that these non-physical injuries
are more accurately described as an attempt to recover emotional distress damages. The
Defendant argues that because the Plaintiffs are attempting to recover emotional distress
damages, the Plaintiffs lawsuit is actually a claim for negligent infliction of emotional
distress ("NIED"). Recovery on an NIED claim is more limited and requires that a
plaintiff overcome significant hurdles to establish that the defendant owed the plaintiff a
duty of care. See Curtis v. Porter, 2001 ME 158, 'l[ 9, 784 A.2d 18. The Defendant here
concludes that it is entitled to Summary Judgment because the Plaintiffs cannot establish
that the Defendant owned them a duty of care to avoid the emotional harm alleged.
Based on the forgoing, the court must determine whether Plaintiffs' negligence
claim is actually a claim for NIED.
A. Negligence versus NIED Claims
"Liability in negligence ... ordinarily requires proof of personal injury or property
damage." In re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 2010 ME 93, 'l[ 9, 4
A.3d 492. However, "the victim of negligent conduct [also] has a legally protected
interest in [their] psychic health" and may bring an action to recover damages that result
from a tortfeasors negligent infliction of emotional harm. Champagne v. Mid-Maine Med.
Ctr., 1998 ME 87, 'l[ 6, 711 A.2d 842. Unlike pure negligence claims however, "[p]laintiffs
claiming negligent infliction ... face a significant hurdle in establishing the requisite
duty[.]" Id. See Bryan R. Watchtower Bible & Tract Soc'y, Inc., 1999 ME 144, 'l[ 30, 738 A.2d
3 839. "However, ... [if a] separate tort ... allows a plaintiff to recover for emotional
suffering, the claim for [NIED] is usually subsumed in any award entered on the separate
tort." Curtis v. Porter, 2001 ME 158, 'l[ 19, 784 A.2d 18.
Here, the Plaintiffs argue that they are entitled to recover emotional damages
because the emotional damages suffered were the result of the Defendant's negligent act
that damaged the Plaintiffs' real property. Under this theory, the Plaintiffs would be
entitled to recover emotional distress damages because such would be subsumed into the
award that the Plaintiffs could recover on their independent negligence claim. The
Superior Court has previously considered this issue, stating that:
"because the plaintiffs have formulated their damage claim [as a tort separate from NIED], it must be determined whether the record provides factual support for an argument that the defendant committed a tort separate from the tort of NIED. If so, and if that separate tort constitutes the basis for recovering damages due to emotional distress, then the plaintiffs may proceed with their .claims here."
White v. Bishop, 2003 Me. Super. LEXIS 118, *4 (Me. Super. July 7, 2003).
In White, the plaintiffs claimed that the defendant caused physical damage to their
property when he negligently crashed his vehicle onto plaintiffs' property. Id. at *2. The
plaintiffs did not witness the incident and were not physically injured. Id. Moreover, the
plaintiffs did not seek recovery for the damage defendant caused to plaintiffs' real
property. Id at *5. Nonetheless, the Superior Court held that the plaintiffs could claim
emotional distress damages under the circumstances without regard to the heightened
NIED standards. Id. The Court specifically held that the independent claim of general
negligence, which was established by the defendant's negligent operation of the vehicle,
was sufficient to allow the plaintiffs to recover emotional distress damages. Id. The Court
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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CMLACTION DOCKET NO. CV-20-372
546 SHORE, LLC, HUGH O'SHEA, MARGARET O'SHEA, AND HUGH O'SHEA AND MARGARET O'SHEA ON HEHALF OF NORA O'SHEA ORDER Plaintiffs
v.
DEARBORN BROTHERS CONSTRUCTION, INC.,
Defendant
This matter comes before the court on Defendant, Dearborn Brothers
Construction's, Motion for Summary Judgment. After due consideration, Defendant's
Motion is denied.
I. Factual Background
The Plaintiffs own and live in a home in Cape Elizabeth, Maine. On May 16, 2019,
the Defendant construction company was conducting utility work on a water pipe in the
vicinity of Plaintiffs' home. During the utility project; the Defendant caused a large
amount of water to flood and damage the Plaintiffs' home. The Plaintiffs were present
for the incident and described it as traumatic. However, none of the Plaintiffs suffered
physical injury as a result of the incident. The Defendant has conceded that it was
negligent during the course of the utility project and that its negligence caused the
Plaintiffs' home to flood.
1 The Plaintiffs instituted the present lawsuit against the Defendant alleging that its
negligence indeed caused damage to Plaintiffs' property and that they have also suffered
various non-physical damages, including: annoyance and discomfort; interference with
and diminution of their enjoyment of their property; and emotional distress. The
Plaintiffs and Defendant appear to have reached a settlement regarding the physical
damage caused to Plaintiffs' property. The only issue left for trial is Plaintiffs attempt to
recover the non-physical damages alleged. The Defendant has filed this Motion for
Summary Judgment arguing that the Plaintiffs are not entitled to recover these non
physical damages as a matter of law.
II. Summary Judgment Standard
A party is entitled to summary judgment when review of the parties' statements
of material facts and the record to which the statements refer, demonstrates that there is
no genuine issue as to any material fact in dispute. Dyer v. Dep't of Transp., 2008 ME 106,
'l[ 14, 951 A.2d 821; M.R. Civ. P. 56(c). "Facts contained in a supporting or opposing
statement of material facts, if supported by record citations as required by this rule, shall
be deemed admitted unless properly controverted." M. R. Civ. P. 56(h)(4). A contested
fact is "material" if it could potentially affect the outcome of the case. Id. A "genuine
issue" of material fact exists if the claimed fact would require a factfinder to "choose
between competing versions of the truth." Dyer, 2008 ME 106, 'l[ 14, 951 A.2d 821
(quotations omitted). To survive a defendant's motion for summary judgment, the
plaintiff must establish a prima fade case for every element of the plaintiff's cause of
action. See Savell v. Duddy, 2016 ME 139, 'l[ 18, 147 A.3d 1179. The court reviews the
evidence in the light most favorable to the non-moving party. Id.
III. Discussion
In a straightforward negligence claim, the plaintiff must prove that the defendant
2 breached a duty of care owed to the plaintiff and that the defendant's breach of the
requisite duty of care caused the plaintiff to suffer damages. See Bell ex re. Bell v. Dawson,
2013 ME 108, 'l[ 17, 82 A.3d 827.
Here, the Defendant argues that the Plaintiffs' lawsuit is not a straightforward
negligence claim because Plaintiffs are attempting to recover damages that were the
result of non-physical injuries. The Defendant furthers that these non-physical injuries
are more accurately described as an attempt to recover emotional distress damages. The
Defendant argues that because the Plaintiffs are attempting to recover emotional distress
damages, the Plaintiffs lawsuit is actually a claim for negligent infliction of emotional
distress ("NIED"). Recovery on an NIED claim is more limited and requires that a
plaintiff overcome significant hurdles to establish that the defendant owed the plaintiff a
duty of care. See Curtis v. Porter, 2001 ME 158, 'l[ 9, 784 A.2d 18. The Defendant here
concludes that it is entitled to Summary Judgment because the Plaintiffs cannot establish
that the Defendant owned them a duty of care to avoid the emotional harm alleged.
Based on the forgoing, the court must determine whether Plaintiffs' negligence
claim is actually a claim for NIED.
A. Negligence versus NIED Claims
"Liability in negligence ... ordinarily requires proof of personal injury or property
damage." In re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 2010 ME 93, 'l[ 9, 4
A.3d 492. However, "the victim of negligent conduct [also] has a legally protected
interest in [their] psychic health" and may bring an action to recover damages that result
from a tortfeasors negligent infliction of emotional harm. Champagne v. Mid-Maine Med.
Ctr., 1998 ME 87, 'l[ 6, 711 A.2d 842. Unlike pure negligence claims however, "[p]laintiffs
claiming negligent infliction ... face a significant hurdle in establishing the requisite
duty[.]" Id. See Bryan R. Watchtower Bible & Tract Soc'y, Inc., 1999 ME 144, 'l[ 30, 738 A.2d
3 839. "However, ... [if a] separate tort ... allows a plaintiff to recover for emotional
suffering, the claim for [NIED] is usually subsumed in any award entered on the separate
tort." Curtis v. Porter, 2001 ME 158, 'l[ 19, 784 A.2d 18.
Here, the Plaintiffs argue that they are entitled to recover emotional damages
because the emotional damages suffered were the result of the Defendant's negligent act
that damaged the Plaintiffs' real property. Under this theory, the Plaintiffs would be
entitled to recover emotional distress damages because such would be subsumed into the
award that the Plaintiffs could recover on their independent negligence claim. The
Superior Court has previously considered this issue, stating that:
"because the plaintiffs have formulated their damage claim [as a tort separate from NIED], it must be determined whether the record provides factual support for an argument that the defendant committed a tort separate from the tort of NIED. If so, and if that separate tort constitutes the basis for recovering damages due to emotional distress, then the plaintiffs may proceed with their .claims here."
White v. Bishop, 2003 Me. Super. LEXIS 118, *4 (Me. Super. July 7, 2003).
In White, the plaintiffs claimed that the defendant caused physical damage to their
property when he negligently crashed his vehicle onto plaintiffs' property. Id. at *2. The
plaintiffs did not witness the incident and were not physically injured. Id. Moreover, the
plaintiffs did not seek recovery for the damage defendant caused to plaintiffs' real
property. Id at *5. Nonetheless, the Superior Court held that the plaintiffs could claim
emotional distress damages under the circumstances without regard to the heightened
NIED standards. Id. The Court specifically held that the independent claim of general
negligence, which was established by the defendant's negligent operation of the vehicle,
was sufficient to allow the plaintiffs to recover emotional distress damages. Id. The Court
ruled that the Plaintiffs could seek such damages even though the plaintiffs did not also
seek recovery for the physical damage to their real property. Id.
4 Here, the Plaintiffs allege that the Defendant was negligent in its work related to
the utility project in front of Plaintiffs' home and that, as a result of that negligent conduct,
damaged Plaintiffs' real property. This independent claim of general negligence is
sufficient to allow the Plaintiffs to recover emotional distress damages without regard to
the heightened NIED standards. Unlike the plaintiffs in White, who did not seek to
recover for damages caused to their real property, the Plaintiffs here claim that the
Defendant's negligence caused extensive real property damage. Although the parties
appear to have settled Plaintiffs' claims for damages related to that property damage, the
emotional distress damages at issue here flow directly from the negligent act which
entitle Plaintiffs to recover such damages. Accordingly, because there is sufficient
evidence to suggest that the Defendant negligently caused damage to Plaintiffs' home,
the Plaintiffs' claims for emotional damages that resulted from that incident are
subsumed into the Plaintiffs' general negligence claim.
The Defendant's argument that the Plaintiffs cannot recover emotional damages
in a negligence claim that does not include physical injury is also unavailing. The
Defendant cites Wyman v. Leavitt to support its claim that emotional damages cannot be
recovered in instances where a plaintiff suffers property damage only. 71 Me. 227 (1880).
However, the Superior Court in White again addressed this very issue. In White! the Court
observed that "although the Law Court [has] delicately declined to overrule Wyman, it
has eliminated Wyman's [sic] requirement of physical harm and other conditions that
had been superimposed onto claims for emotional distress." White, 2003 Me. Super.
LEXIS at *6; citing Gammon v. Osteopathic Hospital ofMaine, Inc., 534 A.2d 1282, 1286 (Me.
1987); Devine v. Roche Biomedical Laboratories, Inc., 637 A.2d 441, 447 (Me. 1994). The court
here declines to depart from the Superior Court's unambiguous ruling in White that
emotional distress damages are recoverable in instances where a plaintiff does not suffer
5 physical injury.
IV. Conclusion
Defendant's Motion for Summary Judgment is premised solely on the argument
that the Plaintiffs are not entitled to recover damages for emotional suffering under the
circumstances. The Defendant has conceded that it negligently caused damage to
Plaintiffs' real property. This independent negligence claim is sufficient to allow the
Plaintiffs to recover damages for emotional suffering without regard to the heightened
standards applicable to claims for NIED. Accordingly, it would be inappropriate to enter
summary judgment on such grounds.
The entry is:
Defendant's Motion for Summary Judgment is DENIED.
Maine Rule of Civil Procedure 79(a).
Date: AugustJL} 2021
ayKennedy Justice, Superior Court