Mitchell v. Hospice of S. Maine

• Court: Superior Court of Maine
• Decided: December 12, 2011
• Docket: YORcv-10-184
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIV1L ACTION YORK, ss. DOCKET NO. CV-107184 Pft F - Y~- I ~/1~ /;;o1; 1 ROSE M. MITCHELL and HELEN L. SHEPERD,

Plaintiffs

v. ORDER AND DECISION

HOSPICE OF SOUTHERN MAINE, BEACON HOSPICE, INC. and PRIME CARE MEDICAL SUPPLIES, INC.,

Defendants

I. PLEADINGS AND MOTIONS

In an initial and in an amended complaint Rose Mitchell has sued both Hospice

of Southern Maine (Southern Maine) and Prime Care Medical Supplies, Inc. (Prime

Care) because of the claimed theft of two diamond rings from her home by Theodore

Pare, an employee of Prime Care, during a delivery of medical supplies for the benefit

of her then terminally ill husband. In a second amended complaint she has renewed

her claims while additional plaintiff Helen Shepherd has sued both Prime Care and

Beacon Hospice, Inc. (Beacon) based on a claimed separate theft by Mr. Pare at Ms.

Shepard's home.

In the second amended complaint Ms. Mitchell has brought three counts against

Southern Maine and Prime Care for negligent hiring, negligent supervision and

negligent retention of Mr. Pare. Southern Maine and Prime Care have filed a

combined motion for summary judgment which has been briefed and argued. Beacon, as a late addition to the case, timely filed its own motion for summary judgment which

is not yet fully briefed.

Southern Maine has filed a cross-claim against Prime Care.

II. FACTS

The central facts are not in dispute. Ms. Mitchell on behalf of her husband

sought and received services from Southern Maine. Southern Maine had a separate

contract with Prime Care where Prime Care would provide and deliver medical

supplies to the homes of terminally ill individuals. Prime Care apparently had a

policy of doing criminal records checks upon prospective employees, but failed to do so

for Mr. Pare who had an extensive record. There is no direct evidence that Mr. Pare

stole Ms. Mitchell's rings during a delivery, but circumstantial evidence exists which

could support the claim.

III. CLAIMS AGAINST SOUTHERN MAINE

There is no basis to hold Southern Maine responsible as it did not hire Mr. Pare

and there is no evidence that its decision to hire Prime Care was in any manner

negligent or improper. Summary judgment will be granted for Southern Maine on the

second amended complaint. The cross claim of Southern Maine against Prime Care

will be dismissed as moot.

IV. CLAIMS AGAINST PRIME CARE

The more challenging issues surround the claims against Prime Care. There is

no recognized claim for negligent retention independent of any claims for negligent

hiring or supervision. Judgment will be entered for Prime Care on Count ill of the

second amended complaint.

"Maine applies the Restatement (Second) of Agency to determine the limits of

imposing vicarious liability on an employer." Mahar v. StoneWood Transport, 2003 ME

2 63, '1[13, 823 A.2d 540, 44 and see Dragomir v. Spring Harbor Hospital, 2009 ME 51, '1[12,

970 A.2d 310, 314. Here any theft of diamond rings would be an intentional tort

outside the scope of employment of Mr. Pare. He was hired to deliver supplies not to

steal from customers.

In 2003 the Law Court indicated in the Mahar decision that it had not "yet

recognized the independent tort of negligent supervision of an employee." Mahar,

'1[10. The tort was recognized in Fortin v. Roman Catholic Bishop of Portland, 2005 ME 57,

'1[39, 871 A.2d 1208, 22 in those limited circumstances where the 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 .... " In

this case a "special relationship" does not exist. Also see Dragomir, '1['1[17-24. As there

is neither a "special relationship" nor a "fiduciary relationship" a claim for negligent

supervision fails under existing Maine law.

The final claim is a claim for negligent hiring. An initial review of the

RESTATEMENT (SECOND) OF TORTS §§317 and 411 suggests that Prime Care should

prevail. However a case cited by the plaintiff, Schecter v. Merchants Home Delivery, Inc.,

892 A.2d 415 (D.C. 2006) and the RESTATEMENT (SECOND) OF AGENCY §213, cmt. g

indicate otherwise. Prime Care had a duty to screen its employees since it knew that

its employees would be in the homes of the terminally ill. Prime Care must have

recognized the need to carefully choose its employees. Despite that recognition and

the establishment of a policy of requiring background checks it failed to conduct a

proper review of Mr. Pare. It is, therefore, potentially liable for the actions of Mr. Pare

by negligently hiring an "improper person ... in work involving risk of harm to others."

Section 213(b ).

3 The plaintiff has sought punitive damages and damages for emotional distress

from the claimed theft of the rings. Any damages, if negligent hiring and a theft are

established, will be limited to the value of the rings.

The entry is:

Motion of Prime Care Medical Supplies, Inc. and Hospice of Southern Maine for summary judgment is granted in part. Judgment for Hospice of Southern Maine on the second amended complaint. Cross-claim of Hospice of Southern Maine against Prime Medical Supplies, Inc. is dismissed. Judgment for Prime Care Medical Supplies, Inc. on Counts II and III of the claims of Rose Mitchell in the second amended complaint. Damages in Count I are limited to the value of the rings.

Dated: December 12, 2011

Paul«~:. ?+i- Justice, Superior Court ATTORNEY FOR PLAINTIFF: GEORGE HEFFERAN GEORGE B HEFFERAN JR PO BOX 593 SOUTH CASCO ME 04077

ATTORNEYS FOR DEFENDANTS PRIME CARE MEDICAL SUPPLIES INC & HOSPICE OF SOUTHERN MAINE: MARK FRANCO VICTORIA MORALES THOMPSON & BOWIE PO BOX 4630 PORTLAND ME 04112-4630

ATTORNEY FOR DEFENDANT BEACON HOSPICE INC: WENDELL LARGE RICHARDSON WHITMAN LARGE & BADGER PO BOX 9545 PORTLAND ME 04112-9545

ATTORNEY FOR DEFENDANT HOSPICE OF SOUTHERN MAINE: DAVID SANDERS LAW OFFICE OF DAVID SANDERS PA PO BOX 271 LIVERMORE FALLS ME 04254