II. Negligence
A prima facie case of negligence requires a plaintiff to establish that a duty
of care is owed, there was a breach of that duty, and that an injury to the plaintiff
occurred that was proximately caused by the breach of duty. Bonin v. Crepeau,
2005 ME 59, 1 9, 873 A.2d 346, 348.
A. Duty of Care
Although the fact that a duty existed in this case is not disputed, the
parties do disagree as to the duty applicable to childcare providers. The
defendant contends that the Childcare Facility had the duty of one who stands in
the shoes of a parent. In Merchant v. Mansir, 572 A.2d 493,493-94 (Me. 1990), the
Law Court adopted a standard of care for parental liability for the torts of their
children impressing a duty on parents to "exercise reasonable care so to control"
their minor children. 1 The plaintiffs counter that a duty founded on premises
liability duty exists between the Childcare Facility staff members and the
I A parent has a duty to "exercise reasonable care so to control his minor child as to prevent it ... from so conducting itself as to create an unreasonable risk of bodily harm to [others], if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such contro!." Merchant, 572 A.2d at 494.
4 children who attend. The plaintiffs also assert that a specific duty is imposed on
the defendants by Maine law as a licensed childcare facility based on the DHHS
rules and regulations.
At a minimum, premises liability is applicable because the defendant
provides a service to the public and the children who attend are invited onto the
premises. Under Maine law, the owner of the premises "owes a legal duty to his
business invitees to protect them from those dangers reasonably to be foreseen."
Schultz v. Gould Acad., 332 A.2d 368, 371 (Me. 1975). Although the Law Court has
not addressed whether premises liability applies to childcare facilities, the Court
has held that such a duty exists between a student and an educational institution.
Schultz, 332 A.2d at 370 (citing Isaacson v. Husson College, 297 A.2d 98, 103 (Me.
1972). In Stanton v. University of Maine System, the University owed a duty to a
student to protect a student against sexual assault when she was in her
dormitory room on the college campus. Stanton v. Univ. of Maine Sys., 2001 ME
96, 110, 773 A.2d 1045, 1050.
The court is also free to consider state regulations among the factors to be
weighed in deciding whether a legal duty existed. Binette v. Dyer Library Ass 'n,
688 A.2d 898, 904. (Me. 1996). The DHHS rules require that each child in a
licensed childcare facility be free from mental, verbal, physical and/ or sexual
abuse, neglect and exploitation. See 22 M.R.S.A. § 8301-A; 10-148 CMR § 10.1.
The defendant assumed the reasonable duty to keep the children in its care safe
and free from assault and injury while at the Childcare Facility.
B. Breach of Duty
The defendant argues that it did not breach its duty and therefore, was not
negligent. The defendant asserts that there is no evidence that they knew or
5 should have known that Barrington posed a risk of sexual misbehavior.
However, in determining what constitutes the breach of a duty, the proper
inquiry "is not to decide whether a particular plaintiff's injury was reasonably
foreseeable in light of a particular defendant's conduct." Cameron v. Pepin, 610
A.2d 279, 282 (Me. 1992) (quoting Ballard v. Uribe, 715 P.2d 624, 628 n.6 (1986)).
Instead the proper analysis involves a more general evaluation of "whether the
category of negligent conduct at issue is sufficiently likely to result in the kind of
harm experienced that liability may appropriately be imposed on the negligent
party." [d.
In Stanton, the Law Court held that the University had a general duty to
protect dormitory residents from sexual assault. 2001 ME 96, err 10, 773 A.2d
1045, 1050. The Court reasoned that the occurrence of sexual assault in a
dormitory room is foreseeable as evidenced in part by the security measures that
the University had implemented. [d. Foreseeability was not dependent upon
evidence of prior criminal acts. Id. Rather, the precautions taken by the
University to protect students against criminal activities indicated that criminal
activities were foreseeable. Id.
As was the case in Stanton, the Childcare Facility assumed the duty to
keep those under its care safe, and the risk of assault was reasonably foreseeable.
The court can safely assume that the staff at the Childcare Facility knew or
should have known that children may be at risk for sexual assault from adults
and other children, and that education, training, and publications for its staff and
managers was available through a variety of sources on this topic.
Furthermore, the DHHS rules require that "each child, during indoor and
outdoor times, shall be supervised by a childcare staff member who is aware of
6 and responsible for the ongoing activity of each child and who is near enough to
the child to intervene when needed." 10-148 CMR § 13.2.1. Based on the
statements of material facts, the director of the Childcare Facility in 2004
acknowledges that she was familiar with these rules and one of her main
responsibilities was to keep the children in the Childcare Facility safe.
Nonetheless, the Childcare Facility was found in violation of the DHHS rules,
relating in part to inadequate supervision. Violation of a safety statute
constitutes evidence of a breach of a duty of reasonable care owed to those the
statute is designed to protect. Binette, 688 A.2d at 904. The statutes and rules
regulating childcare facilities are meant to protect the children at those facilities.
Regardless, it is not for the court to decide whether the defendant
breached its duty at the summary judgment stage. The existence of a duty of
care is a question of law, while issues of the breach of a duty of care or
negligence are usually questions of fact. Cf Radley v. Fish, 2004 ME 87, <]I 6, 856
A.2d 1196, 1198-99; Mastriano v. Blyer, 2001 ME 134, <]I<]I 11-12, 779 A.2d 951, 954.
The plaintiffs have presented evidence of a breach of duty pertaining to
inadequate supervision at the Childcare Facility. Because the Laurences have
generated a genuine issue of material fact as to breach of duty, the defendant
Howard Sports-Topsham's motion for summary judgment on the negligence
claim should fail.
III. Intentional Infliction of Emotional Distress
To succeed in an action for intentional infliction of emotional distress
(nED), a plaintiff must demonstrate 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
7 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. Or., 1998 ME 87, P15, 711 A.2d 842, 847;
Henriksen v. Cameron, 622 A.2d 1135, 1139 (Me. 1993).
Here, the Laurences do not allege that the defendant intentionall y inflicted
emotional distress, but instead, that it did so recklessly. A person acts recklessly
if she knows or should know that her conduct creates an unreasonable risk of
harm to another person and the unreasonableness of her actions exceeds
negligence. Curtis v. Porter, 2001 ME 158, ~ 13, 784 A.2d 18, 23.
The defendant argues that it did not know, nor should have known, the
risk Barrington posed to other children. Whether or not the defendant acted
recklessly is a factual question. The defendant's better argument for purposes of
summary judgment is its claim that the allegations do not rise to the level of
being "extreme and outrageous" as required for an nED claim. It is /lfor the
court to determine, in the first instance whether the defendant's conduct may
reasonably be regarded as so extreme and outrageous to permit recovery, or
whether it is necessarily so./I RESTATEMENT (SECOND) OF TORTS, § 46 cmt. h, at 77
(1965). Where reasonable minds may differ, it is for the fact-finder to determine
whether the conduct has been sufficiently extreme and outrageous to result in
liability. Id.
The conduct alleged here-essentially a child care provider's allegedly
reckless decision not to hire staff-even if proven as alleged, is not conduct "so
extreme and outrageous as to exceed all possible bounds of decency and must be
regarded as atrocious, utterly intolerable in a civilized community." Champagne v.
8 Mid-Maine Med. Ctr., 1998 ME 87. en IS, 711 A.2d 842, 847; (quotation marks
omitted).
Businesses make decisions every day in which cost is weighed against
safety, and sometimes those decisions prove wrong. If the business decides
against a safety measure, knowing full well that its decision will likely result in
more of its customers being injured or dying, as in the famous Ford Pinto cases,
then imposition of liability for IIED and punitive damages might be justified.
Here, however, there is no evidence that the Defendant had knowledge that its
staffing decisions would result in children being sexually assaulted. There is a
better argument that it should have anticipated that possibility, and that is why
the negligence claim survives.
Based on the statements of material facts, the facts presented do not rise to
the level of "extreme and outrageous" behavior as a matter of law and are
insufficient to support the claim for IIED.
IV. Negligent Infliction of Emotional Distress
For the defendant's actions to give rise to liability for negligent infliction
of emotional distress, the Childcare Facility must (1) have owed a duty to the
child; (2) breached that duty; (3) the child was harmed; and (4) the breach caused
the child's harm. Curtis, 2001 ME 158, en 18, 784 A.2d at 25.
The Law Court has expressly declined to apply a pure foreseeability
analysis to determine whether a duty to avoid negligently causing emotional
harm exists. Bryan R., 1999 ME 144, en 31, 738 A.2d at 848; Cameron v. Pepin, 610
A.2d 279,282 (Me. 1992). Although each person has a duty to act reasonably to
avoid causing physical harm to others, there is no analogous general duty to
avoid negligently causing emotional harm to others. Curtis, 2001 ME 158, en 18,
9 784 A.2d at 25. However, a duty does exist to act reasonably to avoid emotional
harm to others in very limited circumstances: first, in claims commonly referred
to as bystander liability actions; and second, in circumstances in which a special
relationship exists between the actor and the person emotionally harmed. Curtis,
2001 ME 158,
The allegations in the plaintiffs' claim do not involve bystander liability
but instead are based on a special relationship between J.L. and the Childcare
Facility staff members. When a "special relationship" exists, an "actor [may] be
found to have a common law duty to prevent harm to another caused by a third
party." Fortin v. Roman Catholic Bishop ofPortland, 2005 ME 57,
(quoting Bryan R. v. Watchtower Bible & Tract Society of New York, Inc., 1999 ~
144,
12 nA, 827 A.2d 833, 837 (discussing RESTATEMENT (SECOND) OF TORTS § 324(a)
cmt. b (1965)), which recognizes the duty of "one who takes charge of another
who by reason of his youth is incapable of caring for himself").
Because the Plaintiffs have presented sufficient evidence that a special
relationship did exist between the children at the Childcare Facility and the staff
members entrusted with their care, the claim for NIED survives the defendants'
motion for summary judgment.
V. Negligent Supervision
If a plaintiff asserts the existence of facts that, if proven, establish a special
relationship with a defendant in accordance with section 315(b) of the
RESTATEMENT (SECOND) OF TORTS/ an action may be maintained against the
2 Section 315 provides:
10 defendant for negligent supervision liability in accordance with section 317 of the
Restatement. 3 Fortin v. Roman Catholic Bishop of Portland, 2005 ME 57, 1 39, 871
A.2d 1208, 1222. Section 317 provides for a duty in a master-servant relationship,
RESTATEMENT (SECOND) OF TORTS § 317, and so does not apply here. Negligent
supervision is generally considered in the context of the duty an employer might
owe for the conduct of an employee, and is a duty that the Law Court has not
previously recognized. Fortin, 2005 ME 57, 119, 871 A.2d at 1215-16.
In recognition that the law does not support their claim, the Plaintiffs
acknowledged at oral argument that their negligent supervision claim should be
dismissed.
Vicarious Liability
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.
3 Section 317 defines the duty of the master to control the conduct of his servant:
A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control.
11 Maine applies the RESTATEMENT (SECOND) OF AGENCY to determine the
limits of imposing vicarious liability on an employer. Mahar v. StoneWood
Transp., 2003 ME 63, <]I 14, 823 A.2d 540, 544. Specifically, section 228 of the
Restatement provides that a master may be vicariously liable for the actions of its
agent when the agent's conduct was within the "scope of employment."
RESTATEMENT (SECOND) OF AGENCY § 228. The plaintiffs do not oppose the
defendants' motion to dismiss the vicarious liability claim because they
acknowledge that the defendants did not employ Barrington.
VI. Punitive Damages
To award punitive damages, a court must find, by clear and convincing
evidence, that malice existed. Morgan v. Kooistra, 2008 ME 26, <]I 29,941 A.2d 447,
455; Tuttle v. Raymond, 494 A.2d 1353, 1363 (Me. 1985). Malice is proven by
evidence that a party acted with ill will toward the plaintiff or that the conduct
was so outrageous that malice can be implied; it is not established by a "mere
reckless disregard of the circumstances." Tuttle, 494 A.2d at 136l.
Viewing the facts in the light most favorable to the plaintiffs, they have
not demonstrated that the Childcare Facility acted with malice, actual or implied.
There is no evidence of actual malice or ill will. As to implied malice, the
reasoning is similar to that with regard to Count III for lIED: the defendant's
alleged conduct must be so outrageous that ill will can be implied. Even if the
defendant was negligent or reckless in its lack of supervision of the children, its
conduct was not so outrageous as to enable the reasonable factfinder to imply
malice for purposes of punitive damages.
CONCLUSION
12 1. The defendant Howard Sports, Inc.'s motion for summary judgment is GRANTED without objection. Howard Sports, Inc. is hereby dismissed as a defendant.
2. The defendant Howard Sports-Topsham, Inc.'s motion for summary judgment on the claims for intentional infliction of emotional distress (Count III), negligent supervision (Count IV), vicarious liability (Count V), and punitive damages is GRANTED. As to Counts IV and V only, the order is without objection.
3. The defendant Howard Sports-Topsham, Inc.'s motion for summary judgment on the claims for negligence (Count 1) and negligent infliction of emotional distress (Count II) is DENIED.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate
this Decision and Order by reference in the docket.
Dated May 5, 2009 Justice, Superior Court