/"' STATE OF MAINE SUPERIOR COURT CUNIBERLAND, ss. CIVIL ACTION Docket No. CV-05-330 ~ p u j ('wr.aiwxr - SUSAN DENIS, as Personal Representative STATE OF MAINE Cumberland, ss,Clerk's Office of the ESTATE OF CHRISTOPHER DENIS, SUPERIOR COURT et al., FEB n9 id116 Plaintiff,
v.
MATTHEW PERRY, et al.,
Defendants.
Before the court is a motion to dismiss by defendant Susan McNerney.
On a motion to dismiss, the material allegations of the complaint must be taken
as admitted. In re Wage Pavment Litia. v. Wal-Mart Stores, Inc., 2000 ME 162 ¶ 3, 759
A.2d 217, 200. A dismissal should only occur when it appears beyond doubt that the
plaintiff is entitled to no relief under any set of facts that she might prove in support of
her claim. Id.'
T h s lawsuit concerns the death of Christopher Denis on June 2, 2003. The
complaint alleges that on that date, Denis was shot to death by Matthew Perry at
Perry's residence in Standish. Complaint qI 4. With respect to McNerney, the complaint
alleges that (1)she was formerly in a relationship with Denis; (2) at the time of the June
:2, 2003 incident, she was in a relationshp with Perry; (3) she was at Perry's residence
.vvhen Denis was shot; (4) she knew or should have known that Perry was dangerous
and capable of causing physical harm to others at Perry's residence; (5) she knew or
Plaintiff contends that McNerney converted her motion to dismiss into a motion for summary judgment lly attaching certain newspaper articles. The court has excluded those attachments from its consideration in ruling on the motion. See hI.R.Civ.P. 12(b). ilccordingly, McNerney's motion need not be treated as a motion for summary judgment. Id. should have known that Perry was engaged in unspecified dangerous or illegal activity
on the property and that such activity was likely to constitute a threat to the lives and
safety of persons on the property; (6) she negligently influenced Perry to believe that
Denis was a threat to her or to Perry; (7) she negligently encouraged Denis to come to
Perry's residence on June 2, 2003; (8) she knew or should have known that such
encouragement would lead to a confrontation between Perry and Denis; and (9) she
negligently failed to warn or assist Denis with respect to the danger resulting from her
conduct or her influence over Perry. Complaint ¶¶ 5, 6, 9, 11, 18-20.'
Accepting all the allegations in the complaint as true, the central issue raised by
McNerney's motion to dismiss is whether McNerney owed any duty to Christopher
Denis. For negligence to be actionable, there must be a duty owed by the defendant to
the plaintiff. E.n., Johnson v. Tedd-Lait Post No. 75, American Legion, 1999 ME 26 ¶ 7,
723 A.2d 1220, 1221. Whether a duty exists is a question of law to be decided by the
court. Fortin v. Roman Catholic Bishop of Portland, 2005 ME 57 ¶ 35, 871 A.2d 1208,
1220; Bryan R. v. Watchtower Bible and Tract Society, 1999 ME 144 ¶ 11, 738 A.2d 839,
844, cert. denied, 528 U.S. 1189 (2000).
The Law Court has firmly adhered to "the general rule . . . that an actor has no
duty to protect others from harm caused by h r d parties." Fortin, 2005 ME 57 ¶ 25, 817
A.2d at 1217. This is true even if the t h r d parties are known to be "dangerous." Id.The
only exception is when a fiduciary or other special relationship exists w h c h carries with
it a legal duty to take reasonable measures to prevent harm to the plaintiff. Id. Thus, in
a series of cases against religous institutions involving alleged sexual misbehavior by
Certain of these allegations are denied by McNerney, who asserts that if the case went to trial, the evidence would show that she did not encourage Christopher Denis to come to Perry's residence but was hiding from Denis out of fear for her own safety. For purposes of the motion to dismiss, however, McNerney's denials are irrelevant and the allegations of the complaint must be taken as true. clergy and church members, the overriding inquiry has concerned the issue of whether,
and under what circumstances, a religious institution has a sufficient fiduciary
relationshp to its parishoners to bring it w i h n the exception to the above rule.
Compare Fortin, 2005 ME 57 ql 31-38, 871 A.2d at 1219-22 with Brvan R., 1999 ME 144
ql¶ 15-24, 738 A.2d at 845-47.
In h s case no special relationshp has been alleged that would have imposed on
McNerney a duty to protect Christopher Denis. The court is not aware of any basis in
law or policy for an argument that a person owes a fiduciary duty to someone with
whom that person formerly had a romantic or sexual relationship. As a result,
accepting the allegations of the complaint that McNerney knew that Perry presented a
danger to Christopher Denis and that she had influenced Perry to fear Denis, the
allegations in the complaint still fall short of a cognizable claim that McNerney had a
duty to protect Christopher Denis from Perry.
Susan Denis argues that this case is different because that she has alleged that
McNerney created the dangerous situation by allegedly encouraging her son to come to
Perry's residence. In t h ~ sconnection, Denis cites Restatement, Second, Torts 5 321(1),
whch provides: "If the actor does an act, and subsequently realizes or should realize
that it has created an unreasonable risk of physical harm to another, he is under a duty
to exercise reasonable care to prevent the risk from talung effect." Although the Law
Court has never expressly adopted Restatement 5 321f3these are statements in its cases
to the effect that there is no duty to protect someone from danger "unless the dangerous
The Law Court discussed Restatement 321 in Trusiani v. Cumberland & York Distributors, Inc., 538 A.2d 258,263 (ble. 1988), but only in rejecting the contention that § 321 could provide a basis for liability in that case. Courts in several other jurisdictions have expressed reservations about the sweep of § 321. See Hull v. Andracchio, 1994 U.S. Dist. LEXIS 19401 at * 12-14 (W.D. Pa. 1994) (discussion of Pennsylvania cases); Brewster v. Rush-Presbyteridn St. Luke's Medical Center, 836 N.E. 2d 635,639 (Ill. App. 2005). situation was created by the defendant." Ea, Tackson v. Tedd-Lait Post No. 75, American Leaion, 1999 W E 26 9 8, 723 A.2d at 1221.
While Maine law thus appears to recognize a defendant's duty to protect in some
circumstances where a dangerous situation has been created by the defendant, that
duty cannot be defined strictly by a foreseeability analysis. In Maine the scope of a duty
"is not entirely a question of the foreseeable risk from harm but is in turn dependent on
recognizing and weighng relevant policy implications." Cameron v. Pepin, 610 A.2d
279,282 (Me. 1992).
In tlus case the court concludes that no duty can be found on the facts as alleged.
A contrary rulii~gcannot be reconciled with such cases as Brvan R. v. Watchtower Bible
and Tract Societv, 1999 ME 144, 738 A.2d 839. If McNerney could potentially be found
liable here for creating a dangerous situation by allegedly encouraging Christopher
Denis to come to Perry's residence at a time when she knew Perry presented a danger to
Denis, then the Watchtower Society could potentially have been liable for creating a
dangerous situation by allowing one of its parishoners to resume h s membershp in
Free access — add to your briefcase to read the full text and ask questions with AI
/"' STATE OF MAINE SUPERIOR COURT CUNIBERLAND, ss. CIVIL ACTION Docket No. CV-05-330 ~ p u j ('wr.aiwxr - SUSAN DENIS, as Personal Representative STATE OF MAINE Cumberland, ss,Clerk's Office of the ESTATE OF CHRISTOPHER DENIS, SUPERIOR COURT et al., FEB n9 id116 Plaintiff,
v.
MATTHEW PERRY, et al.,
Defendants.
Before the court is a motion to dismiss by defendant Susan McNerney.
On a motion to dismiss, the material allegations of the complaint must be taken
as admitted. In re Wage Pavment Litia. v. Wal-Mart Stores, Inc., 2000 ME 162 ¶ 3, 759
A.2d 217, 200. A dismissal should only occur when it appears beyond doubt that the
plaintiff is entitled to no relief under any set of facts that she might prove in support of
her claim. Id.'
T h s lawsuit concerns the death of Christopher Denis on June 2, 2003. The
complaint alleges that on that date, Denis was shot to death by Matthew Perry at
Perry's residence in Standish. Complaint qI 4. With respect to McNerney, the complaint
alleges that (1)she was formerly in a relationship with Denis; (2) at the time of the June
:2, 2003 incident, she was in a relationshp with Perry; (3) she was at Perry's residence
.vvhen Denis was shot; (4) she knew or should have known that Perry was dangerous
and capable of causing physical harm to others at Perry's residence; (5) she knew or
Plaintiff contends that McNerney converted her motion to dismiss into a motion for summary judgment lly attaching certain newspaper articles. The court has excluded those attachments from its consideration in ruling on the motion. See hI.R.Civ.P. 12(b). ilccordingly, McNerney's motion need not be treated as a motion for summary judgment. Id. should have known that Perry was engaged in unspecified dangerous or illegal activity
on the property and that such activity was likely to constitute a threat to the lives and
safety of persons on the property; (6) she negligently influenced Perry to believe that
Denis was a threat to her or to Perry; (7) she negligently encouraged Denis to come to
Perry's residence on June 2, 2003; (8) she knew or should have known that such
encouragement would lead to a confrontation between Perry and Denis; and (9) she
negligently failed to warn or assist Denis with respect to the danger resulting from her
conduct or her influence over Perry. Complaint ¶¶ 5, 6, 9, 11, 18-20.'
Accepting all the allegations in the complaint as true, the central issue raised by
McNerney's motion to dismiss is whether McNerney owed any duty to Christopher
Denis. For negligence to be actionable, there must be a duty owed by the defendant to
the plaintiff. E.n., Johnson v. Tedd-Lait Post No. 75, American Legion, 1999 ME 26 ¶ 7,
723 A.2d 1220, 1221. Whether a duty exists is a question of law to be decided by the
court. Fortin v. Roman Catholic Bishop of Portland, 2005 ME 57 ¶ 35, 871 A.2d 1208,
1220; Bryan R. v. Watchtower Bible and Tract Society, 1999 ME 144 ¶ 11, 738 A.2d 839,
844, cert. denied, 528 U.S. 1189 (2000).
The Law Court has firmly adhered to "the general rule . . . that an actor has no
duty to protect others from harm caused by h r d parties." Fortin, 2005 ME 57 ¶ 25, 817
A.2d at 1217. This is true even if the t h r d parties are known to be "dangerous." Id.The
only exception is when a fiduciary or other special relationship exists w h c h carries with
it a legal duty to take reasonable measures to prevent harm to the plaintiff. Id. Thus, in
a series of cases against religous institutions involving alleged sexual misbehavior by
Certain of these allegations are denied by McNerney, who asserts that if the case went to trial, the evidence would show that she did not encourage Christopher Denis to come to Perry's residence but was hiding from Denis out of fear for her own safety. For purposes of the motion to dismiss, however, McNerney's denials are irrelevant and the allegations of the complaint must be taken as true. clergy and church members, the overriding inquiry has concerned the issue of whether,
and under what circumstances, a religious institution has a sufficient fiduciary
relationshp to its parishoners to bring it w i h n the exception to the above rule.
Compare Fortin, 2005 ME 57 ql 31-38, 871 A.2d at 1219-22 with Brvan R., 1999 ME 144
ql¶ 15-24, 738 A.2d at 845-47.
In h s case no special relationshp has been alleged that would have imposed on
McNerney a duty to protect Christopher Denis. The court is not aware of any basis in
law or policy for an argument that a person owes a fiduciary duty to someone with
whom that person formerly had a romantic or sexual relationship. As a result,
accepting the allegations of the complaint that McNerney knew that Perry presented a
danger to Christopher Denis and that she had influenced Perry to fear Denis, the
allegations in the complaint still fall short of a cognizable claim that McNerney had a
duty to protect Christopher Denis from Perry.
Susan Denis argues that this case is different because that she has alleged that
McNerney created the dangerous situation by allegedly encouraging her son to come to
Perry's residence. In t h ~ sconnection, Denis cites Restatement, Second, Torts 5 321(1),
whch provides: "If the actor does an act, and subsequently realizes or should realize
that it has created an unreasonable risk of physical harm to another, he is under a duty
to exercise reasonable care to prevent the risk from talung effect." Although the Law
Court has never expressly adopted Restatement 5 321f3these are statements in its cases
to the effect that there is no duty to protect someone from danger "unless the dangerous
The Law Court discussed Restatement 321 in Trusiani v. Cumberland & York Distributors, Inc., 538 A.2d 258,263 (ble. 1988), but only in rejecting the contention that § 321 could provide a basis for liability in that case. Courts in several other jurisdictions have expressed reservations about the sweep of § 321. See Hull v. Andracchio, 1994 U.S. Dist. LEXIS 19401 at * 12-14 (W.D. Pa. 1994) (discussion of Pennsylvania cases); Brewster v. Rush-Presbyteridn St. Luke's Medical Center, 836 N.E. 2d 635,639 (Ill. App. 2005). situation was created by the defendant." Ea, Tackson v. Tedd-Lait Post No. 75, American Leaion, 1999 W E 26 9 8, 723 A.2d at 1221.
While Maine law thus appears to recognize a defendant's duty to protect in some
circumstances where a dangerous situation has been created by the defendant, that
duty cannot be defined strictly by a foreseeability analysis. In Maine the scope of a duty
"is not entirely a question of the foreseeable risk from harm but is in turn dependent on
recognizing and weighng relevant policy implications." Cameron v. Pepin, 610 A.2d
279,282 (Me. 1992).
In tlus case the court concludes that no duty can be found on the facts as alleged.
A contrary rulii~gcannot be reconciled with such cases as Brvan R. v. Watchtower Bible
and Tract Societv, 1999 ME 144, 738 A.2d 839. If McNerney could potentially be found
liable here for creating a dangerous situation by allegedly encouraging Christopher
Denis to come to Perry's residence at a time when she knew Perry presented a danger to
Denis, then the Watchtower Society could potentially have been liable for creating a
dangerous situation by allowing one of its parishoners to resume h s membershp in
the church and to lead church excursions including chldren at a time when church
elders knew he had a hstory of chld molestation. See 1999 ME 144 9 9 n.3, 738 A.2d at
843. Indeed, Bryan R. presents a stronger case for potential liability because there was
some basis in that case to argue that the church had a fiduciary responsibility.
Similarly, in the Fortin case, there would have been no need to explore the
special relationshp created by Fortin's status as an alter boy and parochal school
student if it had been sufficient to allege that the church had kept in office a parish
priest who it knew had a propensity to sexually exploit and abuse young boys. 2005
ME 57 9 3,871 A.2d at 1212. The court does not have to reach the question of whether Maine would recognize
a duty to protect in cases where a dangerous mechanical condition has been created by
the defendant or where the defendant personally sets in motion a physical process that
poses a risk to the plaintiff. See, e.G Restatement, Second, Torts 5 321, illustration 1. At
least where intervening actions of h r d persons are involved, given the unpredictability
of human behavior, the court does not conclude that the complaint in h s case alleges
facts that would give rise to a duty on McNerney's part to protect Christopher Denis
from harm at the hands of a h r d person.
The entry shall be:
Defendant McNerney's motion to dismiss the complaint as against her is
granted. The case shall continue as against the other defendants. The clerk is directed to
incorporate this order in the docket by reference pursuant to Rule 79(a).
Dated: February 2006
-9-7- Thomas D. Warren Justice, Superior Court = COURTS nd County 3x 287 le 041 12-0287
JAMES MACADAM, ESQ. 208 FORE STREET PORTLAND, ME 04101
COURTS l County : 287 041 12-0287
CORNELIA FISHER, ESQ. PO BOX 7046