Clark v. Henderson

• Court: Superior Court of Maine
• Decided: August 24, 2009
• Docket: SAGcv-08-061
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT

Sagadahoc, ss. Civil Action Docket ,1!1\] ' I f II , , \ "--', / _,' I

( . ' '.),

VALERIE CLARK

Plaintiff

v. Docket No. SAGSC-CV-08-061

CLIFTON HENDERSON

Defendant

ORDER ON DEFENDANT'S MOTION TO DISMISS AND DEFENDANT'S MOTION FOR PARTIAL SUMMARY IUDGMENT

This matter comes before the court on the motion of Defendant Clifton

Henderson (Henderson) to dismiss Counts II and III of the complaint, as well as

the Plaintiff's claims for attorney fees under Counts II, III, and IV of the

complaint pursuant to Rules 7(b) and 12(b)(6). Also before the court is a partial

motion for summary judgment filed by Henderson in accordance with Rule 56,

and a motion for a protective order filed by Clark pursuant to Rule 26(c).

Background And Procedural History

Clark alleges the following facts in her complaint.

On or about July 29, 2007, Clark was a passenger in a vehicle owned by

her and driven by her son, which made a left turn into the Irving gas station in

Newport, Maine. Henderson, while exiting the gas station, drove his truck

directly into the front of the Clark's vehicle, the impact of which caused Clark's

vehicle to spin 180 degrees. Henderson then exited the Irving gas station at a

high rate of speed, but returned to the scene of the accident during the

subsequent police investigation. Upon returning to the scene Henderson was

given a sobriety test, and was arrested for operating under the influence. Clark alleges bodily injury, pain and suffering, compensatory damages, and property

damages as a result of the accident.

Clark filed a complaint on November 10, 2008 asserting four causes of

action: Count I: negligence; Count II: recklessness; Count III: negligent infliction

of emotional distress; and Count IV: intentional or reckless infliction of emotional

distress. Henderson filed an answer on December 10, 2008. On May 27, 2009,

Clark filed a motion for a protective order in response to Henderson's request for

her psychotherapist records. On June 16, 2009, Henderson filed a motion in

opposition to Clark's protective order request.

On June 25,2009, Henderson filed a motion to dismiss, seeking dismissal

of Counts II and III, Clark's recklessness and negligent infliction of emotional

distress claims, as well as Clark's request for attorney's fees under Counts II, III,

and IV pursuant to Rule 12(b)(6). Contemporaneously, Henderson filed a motion

for partial summary judgment on Count IV, the intentional or reckless infliction

of emotional distress claim, as well as on the request for punitive damages under

Counts II, III, and IV. Clark opposed both motions on July 15, 2009.

Clark has also filed a motion for protective order that was resolved at oral

argument on the motion to dismiss, to the extent of both counsel advising the

court that they could resolve their discovery differences. Because the motion

for protective order was filed prematurely in any event, before a conference

under M.R. Civ. P. 26(g) was requested or held, the motion for protective order is

not discussed further and is hereby dismissed.

Discussion

1. Defendant's Motion to Dismiss and Judgment on the Pleadings:

Standard of Review A "motion for judgment on the pleadings is the functional equivalent of a

motion to dismiss for failure to state a claim." Stevens v. Bouchard, 532 A.2d 1028,

1029 (Me. 1987). The Court must "examine the complaint in the light most

favorable to the plaintiffs to determine whether it alleges the elements of a cause

of action or facts entitling the plaintiffs to relief on some legal theory" and

"assume that all factual allegations in the complaint are true." Id. at 1030; see also

Saunders v. Tisher, 2006 NIE 94, lJI 8, 902 A.2d 830, 832 (stating that in determining

whether a motion to dismiss should be granted, the court considers "the

allegations in the complaint in relation to any cause of action that may

reasonably be inferred from the complaint," and a claim will be dismissed only

"when it appears beyond a doubt that the plaintiff is not entitled to relief under

any set of facts that he [or she] might prove in support of his [or her] claim.")

(quoting Johanson v. Dunnington, 2001 ME 169, 15, 785 A.2d 1244, 1246)).

As Henderson's Motion to Dismiss is essentially a Motion for Judgment

on the Pleadings the court will review the motion in accordance with 12(c).1

A. Count II: Recklessness

Count II appears to assert a stand-alone claim of recklessness. Oark's

memorandum in opposition did not address Henderson's motion, and at oral

argument Oark's counsel confirmed that there is no objection to Count II being

1 Clark's statement that Henderson's mislabeled 12(b)(6) motion is time-barred ignores that the purpose of the Rules of Civil Procedure is not to dismiss claims merely because of mislabeling a motion, rather the focus of the court's consideration is on the substance of the claim, not the format. For clarity's sake-Henderson incorrectly states in his Reply in Support of the Motion to Dismiss that 12(h)(2) allows a 12(b)(6) motion to be made at any time. Rule 12(h)(2) states that "a defense of failure to state a claim upon which relief can be granted ... may be made in any pleading permitted ... or by a motion for judgment on the pleadings;" and is thus also a reference to a Rule 12(c) motion once the pleadings are closed. Further, Clark's statement that the court must treat Henderson's motion as a motion for summary judgment is incorrect. Rule 12(c) states that "[ilf, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." (emphasis added). In this case, the court has elected to exclude matters outside the pleadings. dismissed. Therefore, Henderson's motion to dismiss-construed as a motion for

judgment on the pleadings-is GRANTED as to Count II recklessness and as to

Clark's request for attorneys' fees contained in Count II.

B. Count III: Negligent Infliction of Emotional Distress

In Count III Clark alleges a claim of negligent infliction of emotional

distress (NIED). In order to prevail on a claim for negligent infliction of

emotional distress, a plaintiff must show J/(1) the defendant owed a duty to the

plaintiff; (2) the defendant breached that duty; (3) the plaintiff was harmed; and

(4) the breach caused the plaintiff's harm.J/ Curtis v. Porter, 2001 ME 158,

784 A.2d 18, 25.

Count III is likely surplusage to the extent that Clark is claiming to have

experienced emotional distress in connection with her own injuries. See Curtis

v. Porter, supra at

plaintiff to recover for emotional suffering, the claim for negligent infliction of

emotional distress is usually subsumed in any award entered on the separate

tort"). In other words, Count III adds nothing to the complaint to the extent it

pertains to emotional distress resulting from Henderson's alleged negligence

directed against her, because damages for emotional distress are already

available if she proves negligence as alleged in Count I of the complaint.

However, if Clark is asserting an independent NIED claim for emotional

distress caused by witnessing harm or danger to someone else, that claim is not

sufficiently stated in Count III, and will not be considered absent an amendment

of the complaint, which has not been sought?

2 The independent tort of NIED applies only in "limited circumstances" in which an individual has such a duty are either in "bystander liability actions" or when "a special relationship exists At oral argument, the court indicated that, because the Curtis case does

not seem to compel dismissal of a redundant NIED claim, Count III could stay in

the case. On reflection, the court concludes based on the cases cited in footnote 2,

that a claim for NIED is independently viable only in limited circumstances not

adequately pleaded in Count III.

For these reasons, Defendant's motion to dismiss, considered as a motion

for judgment on the pleadings, is granted as to Count III.

C. Plaintiff's Request for Attorney Fees

Defendant has also sought dismissal or judgment in his favor on the

Plaintiff's prayer for attorney fees. Maine law permits attorney fees to be

awarded only in limited circumstances-by statute, by contract, in certain

insurance coverage cases, or as a sanction-and none of those circumstances

applies here. See Baker v. Manter, 2001 ME 26,

Accordingly, the Plaintiff's prayer for attorney fees on any of the counts of the

complaint will be denied.

II. Defendant's Motion for Partial Summary Judgment: Standard of

Review.

between the actor and the person emotionally harmed." Curtis v. Porter, supra 'JI 19,784 A.2d at 25. Bystander liability occurs when "the plaintiff bystander was present at the scene of the accident, suffered mental distress as a result of observing the accident and ensuing danger to the victim, and was closely related to the victim." Culbert v. Sampson's Supermarkets Inc., 444 A.2d 433,438 (Me. 1982). Additionally, the harm suffered must amount to "serious mental distress," such that "a reasonable person normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the event." Id. at 437.

In the present case, Clark has not alleged that any special relationship existed between her and Henderson. The complaint alleges they were three other people in the vehicle with her, one of whom was her son, but it does not allege that any of them was injured or in danger, or that her emotional distress resulted from seeing any of them injured or placed in danger. Therefore, the court can only speculate on whether Count III is intended to state an independent NIED claim. See Champagne v. Mid-Maine Or., 1998 ME 87, 'JI 13, 711 A.2d 842, 846. Summary judgment is proper where there exists no genuine issue of

material fact such that the moving party is entitled to judgment as a matter of

law. M.R. Civ. P. 56(c); see also Levine v. R.B,K. Caly Corp., 2001 ME 77, 1 4, 770

A.2d 653, 655. A genuine issue is raised "when sufficient evidence requires a

fact-finder to choose between competing versions of the truth at trial." Parrish v.

Wright, 2003 ME 90, «j[ 8,828 A.2d 778, 781. A material fact is a fact that has "the

potential to affect the outcome of the suit." Burdzel v. Sobus, 2000 ME 84, 1 6,750

A.2d 573, 575. "If material facts are disputed, the dispute must be resolved

through fact-finding." Curtis v. Porter, 2001 ME 158,

party wishing to avoid summary judgment must present a prima facie case for

the claim or defense that is asserted. Reliance National Indemnity v. Knowles

Industrial Services, 2005 ME 29, «j[ 9, 868 A.2d 220, 224-25. At this stage, the facts

are reviewed "in the light most favorable to the nonmoving party." Lightfoot v.

Sch. Admin. Dist. No. 35, 2003 ME 24, 1 6, 816 A.2d 63, 65.

A. Count IV: Intentional/Reckless Infliction of Emotional Distress

In order to prevail on a claim for intentional or reckless infliction of

emotional distress (IIED), a plaintiff must show that: (1) the defendant engaged

in intentional or reckless conduct that inflicted serious emotional distress or

would be substantially certain to result in serious emotional distress; (2) the

defendant's conduct was so extreme and outrageous as to exceed all possible

bounds of decency and must be regarded as atrocious and utterly intolerable;

and (3) the plaintiff suffered serious emotional distress as a result of the

defendant's conduct. Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, 115, 711

A.2d 842, 847. In moving for summary judgment on Count W, Defendant Henderson

focuses on the first and second elements of the tort: he claims that, as a matter of

law, the evidence as presented in the parties' statements of material facts could

not support a finding that the defendant acted intentionally or recklessly, or that

the defendant's conduct was sufficiently extreme and outrageous.

Whether an act is "intentional" under the law depends on whether a

person subjectively wants or subjectively foresees "that harm to another will

almost certainly result from his actions." Curtis v. Porter, 2001 ME 158 en 12, 784

A.2d 18,23.

Despite Clark's allegations that there is a question of material fact as to

whether Henderson deliberately tried to hit her vehicle or that he had "road

rage" the Court finds no evidence from which a jury could substantiate either ot'

these claims. The record reflects that Henderson, after a brief argument with his

wife, pulled out of the gas station and hit Clark's vehicle, but nowhere indicates

that his actions were deliberate in nature. Clark's allegations that Henderson's

actions were deliberate or a result of road rage are speculative at best, and thus

do not substantiate a claim that Henderson intentionally caused Clark's

emotional distress. Myshrall v. Key Bank Nat'l Ass'n, 2002 ME 118, en 22, 802 A.2d

419,424-25; see also Arroyo-Audifred v. Verizon Wireless, Inc., 527 F.3d 215, 217 (lst

Cir. 2008) (stating that a court is not "required to accept as true or to deem as a

disputed material fact, each and every unsupported, subjective, conclusory or

imaginative statement made by a party").

However, a genuine issue of material fact exists as to whether Henderson

recklessly inflicted emotional distress on Clark. "A person acts recklessly if she

knows or should know that her conduct creates and unreasonable risk of hann to another person and the unreasonableness of her actions exceeds negligence."

Curtis v. Porter, 2001 ME 158

defines "reckless" as conduct that would lead a reasonable person to realize the

unreasonable risk of harm to another).

The record reflects that Henderson had a disagreement with his wife, then

started driving very fast out of the parking lot, despite having consumed alcohol

beyond the legal limit. These facts are sufficient to allow a jury to infer that

Henderson was reckless in choosing to drive, and this court cannot say as a

matter of law Henderson's actions definitively were not extreme and outrageous

such that they would be regarded as atrocious and utterly intolerable. Rubin v.

Matthews International Corp., 503 A.2d 694, 699 (Me. 1986) (noting that when

"reasonable men could differ as to the outrageousness of the defendant's

conduct, it was for the jury to determine whether the conduct was sufficiently

extreme and outrageous to result in liability").

Lastly, although it was less a focus of the Defendant's motion, a genuine

issue of material fact exists as to whether Clark suffered severe emotional

distress. Severe emotional distress exists where the mental stress engendered by

the circumstances of the event is "so severe that no reasonable person could be

expected to endure it." Botka v. S.c. Noyes & Co., 2003 ME 128,

947, 952. "Although 'severe' emotional distress is usually manifested by 'shock,

illness or other bodily harm,' such objective symptomatology is not an absolute

prerequisite for recovery of damages for intentional ... infliction of emotional

distress.''' Vicnire v. Ford Motor Credit Co., 401 A.2d 148, 154 (Me. 1979) (citing

Restatement (Second) of Torts § 46, Comment k. (1965)). Simply claiming that one

is distressed as a result of another's actions is not enough to prove emotional distress. See Giguere v. Ellis, 1988 Me. Super. LEXIS 284 (Nov. 16, 1988). Based on

the party's briefs and their accompanying statements of material facts, the court

concludes that a genuine issue of material fact exists as to whether Clark suffered

"severe" emotional distress/ and thus summary judgment is not appropriate at

this time. Accordingly, Defendant's motion for partial summary judgment for

intentional or reckless infliction of emotional distress is DENIED.

B. Claims for Punitive Damages

The Law Court's seminal case of Tuttle v. Raymond governs the application

of common law punitive damages. 494 A.2d 1353 (Me. 1985); see also Morgan v.

Kooistra, 2008 ME 26, 129, 941 A.2d 447,455. Punitive damages are available only

upon a finding of express or implied malice by clear and convincing evidence.

Tuttle, 494 A.2d at 1361-63. Malice may be proven through evidence showing

either that the party acted with ill will toward the claimant or that the party's

conduct was so outrageous that malice can be implied. Id. at 1361.

Thus, any lesser state of mind, such as gross negligence or recklessness, is

insufficient to allow a punitive damages award. Id. at 1361-62 (noting that a

gross negligence or reckless requirement "covers too broad and too vague an

area of behavior, resulting in an unfair and inefficient use of the doctrine of

punitive damages" that would "allow virtually limitless imposition of punitive

damages/' and would dull lithe potentially keen edge of the doctrine as an

effective deterrent of truly reprehensible conduct"). Accordingly, punitive

damages are only available if a defendant acts with actual or implied malice. Id.

Implied malice is defined as more than a "mere reckless disregard of the

3The court notes that the disputed psychological records (discussed below) will be dispositive on the issue, and thus refrains from granting the motion at this time. circumstances." Id. at 1361. The clear and convincing standard of proof aids in

ensuring that punitive damages are not inappropriately awarded. Batchelder v.

Realty Res. Hospitality, LLC, 2007 ME 22, tjI 13,914 A.2d 1116, 1124.

Thus, the issue is whether the evidence presently of record, viewed in a

light most favorable to Clark, could support a factual finding by clear and

convincing evidence that Henderson acted with malice in causing the accident.

Clark, in a purported reliance on Tuttle, alleges that Henderson's conduct

was maliciously motivated, and was so outrageous that malice may be implied.

Clark further states that punitive damages are appropriate here as a deterrence

for driving while intoxicated and driving while in a rage. However, Clark does

not provide clear and convincing evidence that Henderson deliberately and

maliciously caused the accident. 4 Despite the fact that evidence has been

presented that Henderson was intoxicated at the time of the accident, Tuttle

makes it clear that recklessness and even gross negligence are not enough to

satisfy the malice prong necessary for a punitive damages award. Tuttle, 494

A.2d at 1361-63.

In Tuttle, the court vacated the jury's award of punitive damages, despite

the evidence that established that the defendant was speeding, ran a stoplight,

struck the vehicle, and caused the plaintiff's car to be sheared in half by the force

of the impact. Tuttle, 494 A.2d at 1354; see also Curran v. Richardson, 448 F. Supp.

2d 228, 232-33 (D. Me. 2006) (finding that the defendant's operation of a motor

vehicle at excessive speeds on the wrong side of the road after drinking two

beers did not rise to Tuttle's malice standard); cf Filanowski v. Leonard, 2003 Me.

Super. LEXIS 165 Guly 8, 2003) (finding malice where the defendant driver was

4 Nor does Clark provide Maine case law as a legal basis for her claims. intoxicated at the time of the accident, but who also ignored the warnings of the

passengers in his car that he was driving too fast and should slow down, and

who also had a record of driving to endanger and several speeding violations).

The Court must consider the facts in a light most favorable to Clark on

this motion for summary judgment on punitive damages. As noted above with

respect to Count IV, the evidence, as it appears in the summary judgment record,

could support a finding that Henderson acted in reckless disregard of the danger

he imposed to others. These facts, however, do not rise to the level of malice

required by Tuttle, nor do they demonstrate clear and convincing evidence that

Henderson maliciously intended to place himself or others in harm's way that

would support a punitive damages award. Accordingly, under the facts alleged,

Henderson's motion for summary judgment as to punitive damages is

GRANTED with respect to all counts of the complaint.

Conclusion

For the reasons given, it is hereby ORDERED AS FOLLOWS:

1. Defendant's motion to dismiss, construed as a motion for judgment, is

granted as to Count II and III, and as to Plaintiff's prayer for attorney fees, and is

otherwise denied. Defendant's motion for partial summary judgment is granted

as to Plaintiff's prayer for punitive damages and is otherwise denied.

2. Judgment is hereby granted to Defendant on Counts II and III and as

to the prayers for attorney fees and punitive damages.

Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate

this order by reference in the docket. ~~ ­ Dated August 2!L 2009 Itflt Justice,Superi~ Han. Andrew M. Horton