who was the treasurer of the ACCA at that time, acted in a way to "cover" for her son,
1 against Defendants Collishaw, G. DeCoste and the ACCA for failing to protect the
finances of the ACCA based on these facts.
Plaintiff Richardson reported mold growing on her wall to the ACCA by email on
December 19, 2011. Supp. S.M.F. <[ 24. Plaintiff had first realized moisture or dampness
in her unit when she moved into the unit in 2003 or 2004. Supp. S.M.F. <[ 20. At some
point thereafter, Jla few years ago," Plaintiff Richardson noticed mold on the wall of her
unit. Supp. S.M.F. <[ 21. Plaintiff Richardson remediated the mold by removing some of
the wood on the outside of her unit and painting over the mold on the wall. Supp.
S.M.F. <[ 22. Plaintiff Richardson next noticed the mold in December 2011, at which
point she contacted the ACCA. Supp. S.M.F. <[<[ 23, 24. Defendants contend that the
ACCA has taken steps to remedy any water intrusion from the outside of the common
element foundation. Supp. S.M.F. <[ 25. Plaintiffs contend that the remediation did not
occur until April2013 and it has yet to be shown whether the remediation fixed the
problem. Furthermore, Plaintiffs argue that they were harmed by the delay in
remediation.
Plaintiff Richardson reported to Defendant C. Davidson that mice were entering her
unit on November 15, 2011. Supp. S.M.F. <[ 33. Defendant C. Davidson responded the
following day, telling Plaintiff Richardson to contact Defendant G. DeCoste. Supp.
S.M.F. <[ 34; Response. S.M.F. <[ 34. Plaintiff sent another email to Defendant C.
Davidson on November 16, 2011, which was met with a response from Defendant
Collishaw who informed Plaintiff that the ACCA would fix the outside wall and
suggest some exterminators for the inside of the unit. Supp. S.M.F. <[<[ 35, 36. At some
point between November 18 and November 21, Plaintiff contracted Abundant Wildlife
to investigate the mouse situation. Supp. S.M.F. <[ 37, Response S.M.F. <[ 37. Plaintiffs
contend that Plaintiff Richardson contracted with Abundent Wildlife pursuant to the
2 request of Defendant Collishaw. Response S.M.F. <[ 37. Defendants contend that
Plaintiff Richardson independently contracted with Abundant Wildlife. Supp. S.M.F. <[
37.
On November 23, 2011, Defendant Collishaw informed Plaintiff Richardson that the
Association had selected Orkin to remediate the mouse issue and an appointment had
been made for November 25,2011. Supp. S.M.F. <[ 38. Orkin made two visits. Supp.
S.M.F. <[<[ 39, 40. Orkin sprayed orange foam on the outside of the unit as part of the
mouse remediation. Supp. S.M.F. <[ 27. Plaintiffs asked the ACCA to remediate the
orange foam immediately after it was installed because it was unsightly. Supp. S.M.F. <[
27. The ACCA did sand down and paint over the orange foam. Response S.M.F. <[ 41.
Plaintiffs claim that the remediation was only partial and that they were damaged by
the loss of property value during the time prior to remediation, and the continued
failure of the ACCA to remediate fully. Plaintiffs bring counts of negligence and breach
of fiduciary duty for Defendants failure to remediate the drainage issues sooner.
Plaintiffs allege that Defendants DeCoste contacted the Kittery Fire Department and
reported that Plaintiffs were smoking marijuana and burning trash in a barrel. Pl. Opp.
S.M.F. <[ 8. Plaintiffs further allege that Defendants DeCoste spread rumors that Plaintiff
Clark was a drug dealer. Supp. S.M.F. <[ 74; Response S.M.F. <[ 74. Defendants dispute
these allegations. Reply S.M.F. <[ 47.
Plaintiffs allege that they were harassed by Defendants. Plaintiffs allege that in May
2009, Plaintiff Richardson wrote a letter to Defendant Gary DeCoste asking him to no
longer park in her spot next to her unit. Opp. S.M.F. <[ 4. Plaintiff further alleges that
thereafter Defendant Gary DeCoste parked directly in front of her unit. Opp. S.M.F. <[ 4.
3 Defendant DeCoste denies allegations that he intentionally obstructed Plaintiff's view
of the river. Response S.M.F. Cj[ 4. 1
Plaintiff Richardson sought a protection from harassment order against Defendant
Gary DeCoste and obtained a temporary protection from harassment order. Supp.
S.M.F. Cj[ 65. In addition to allegations that Defendant G. DeCoste was parking in a way
to intentionally block their view of the river, Plaintiffs allege that they were harassed by
Defendant G. DeCoste and Defendant Davidson in the following ways. Plaintiff
Richardson understood a text message sent by G. DeCoste about parking to be
threatening. Supp. S.M.F. Cj[ 68; Response S.M.F. Cj[ 68. Plaintiffs claim Defendants G.
DeCoste and P. DeCoste maliciously made a report to the police concerning the
Plaintiffs. Supp. S.M.F. Cj[ 73; Response S.M.F. Cj[ 73. Plaintiffs claim that after listing their
unit for sale they put out a real estate display with flyers and that Defendants
continually removed the flyers. Supp. S.M.F. Cj[ 75; Response S.M.F. Cj[ 75. Plaintiffs claim
that Defendants vandalized their car, moved stones and cut flowers outside of
Plaintiffs' unit, removed Plaintiffs' mail from Plaintiffs' mailbox, and purposefully
shoveled snow into Plaintiffs' walkway. Supp. S.M.F. Cj[Cj[ 76, 85, 86, 87; Response S.M.F.
Cj[Cj[ 76, 85, 86, 87. Plaintiffs' also claim that the Davidsons, who live in the unit directly
above the unit owned by Plaintiffs, purposefully stomp around their apartment. Supp.
S.M.F. Cj[ 91; Response S.M.F. Cj[ 91. Plaintiffs allege that Defendants conspired to remove
Plaintiff Richardson from her role as president of the ACCA. Supp. S.M.F. Cj[ 83;
Response S.M.F. Cj[ 83. Defendants deny all of Plaintiffs' claims.
1 The Court is not required to consider statements of material fact that fail to cite to specific record material properly considered on summary judgment. M.R. Civ. P. 56(h)(4). Plaintiff has cited to the unauthenticated exhibits to the unverified complaint from Plaintiff's action seeking Protection from Harassment throughout the Opposing Statements of Material Fact. An unverified complaint is not record evidence properly considered on summary judgment. Levine v. R.B.K. Caly Corp., 2001 ME 77, 1 8, 770 A.2d 653; Deutsche Bank Nat. Trust Co. v. Raggiani, 2009 ME 120, 16, 985 A.2d 1.
4 Plaintiffs bring two counts of negligence and two counts of breach of fiduciary duty
against Defendants G. DeCoste, C. Davidson, Collishaw and the ACCA for failing to
proted Plaintiffs from harassment. Plaintiffs also bring a claim of negligent infliction of
emotional distress against Defendants Collishaw, C. Davidson, G.DeCoste, and the
ACCA and a claim of intentional infliction of emotional distress against G. DeCoste, P.
DeCoste, J. Davidson, C. Davidson, Collishaw and the ACCA for conspiring to harass
and for willfully breaching their fiduciary duty.
Plaintiffs bring a count of breach of fiduciary duty against Defendants Collishaw, G.
DeCoste, and the ACCA for failing to carry out their duties in good faith by failing to
protect the finances of the ACCA, failing to maintain common spaces, and failing to
protect Plaintiffs from harassment. Finally Plaintiffs bring their demand for punitive
damages as a separate claim.
Defendants now move the court for Summary Judgment.
II. Standard of Review
Summary judgment is appropriate where no genuine issue of material fact exists
and the moving party is entitled to judgment as a matter of law. Beal v. Allstate Ins. Co.,
2010 ME 20,
ME 106,
judgment, the court reviews the parties' statements of material facts and the cited
record evidence in the light most favorable to the non-moving party. Id.
A genuine issue of material fact exists where the fact finder must make a
determination between differing versions of the truth. Reliance National Indemnity v.
Knowles Industrial Services Corp., 2005 ME 29, <][7, 868 A.2d 220; citing Univ. of Me. ,
Found. v. Fleet Bank of Me., 2003 ME 20, <][20, 817 A.2d 871. Furthermore, "a fact is
material if it could potentially affect the outcome of the case." Id.
5 ill. Discussion
A. Negligence
Plaintiffs have brought multiple counts of negligence against Defendants G.
DeCoste, C. Davidson, Collishaw, and the ACCA. In order to prove a cause of action for
negligence, Plaintiff must be able to show that Defendants had a duty to Plaintiffs,
which they breached, causing Plaintiff damages. Reid v. Town of Mount Vernon, 2007
NIE 125,
Defendants owed Plaintiff a duty. Whether or not a defendant has a duty to a plaintiff is
a question of law to be determined by the court. Alexander v. Mitchell, 2007 ME 108,
14,930 A.2d 1016. The court will review each claim individually for a duty owed by
Defendant to Plaintiff.
The first count of Plaintiffs' complaint is a cause of action of negligence for failure to
maintain, repair and replace common elements. Plaintiffs cite to Article II, Section 2.3.6
of the Bylaws to demonstrate the duty of the association to "regulate the use,
maintenance, repair, replacement and modification of the Common Elements."
Defendant concedes a duty to maintain "common elements". Supp. S.M.F.
Plaintiffs specifically cite to the ACCA's delay in repairing the drainage around the
exterior wall of their unit, causing mold in their unit; the ACCA's refusal to reimburse
Plaintiffs for services rendered by Abundant vVildlife; and the ACCA's failure to fully
remediate the orange foam installed by Orkin. Defendants argue that there was no
breach of this duty. Defendants contend that the duty was not breached because
Plaintiffs did not timely inform the ACCA of damages that would have been in the
ACCA purview to fix. Therefore, Defendants argue there was no duty. Furthermore,
2 As discussed later in this order in the section concerning breach of fiduciary duty, there remains a question of material fact as to whether the water damage and the entry of mice into the unit fall into the ACCA's duty to maintain common elements.
6 because some of the maintenance issues were within the Plaintiff's unit, they were not
the duty of the ACCA to maintain.
Plaintiffs allege that Defendants negligent failure to repair drainage on the exterior
wall of Plaintiffs' unit caused mold on the interior of the unit. "There can be no neglect
to perform a duty unless the person sought to be charged with negligence has
knowledge of the condition of things which requires performance at his hands."
McPherson v. McPherson, 1998 ME 141, <][10, 712 A.2d 1043 (citing Am. Lumber Sales
Co. v. Fid. Trust Co., 127 Me. 65, 141 A. 102, 105 (1928)). Defendants argue that because
Plaintiff Richardson did not inform the ACCA when she first noticed the mold in 2003
or 2004 and she instead attempted to remediate the problem herself by removing some
wood on the outside of the unit and painting over the mold on the wall, Defendants are
not liable for any mold that developed prior to the time at which Plaintiffs did inform
the ACCA of the problem. Defendants argue that the ACCA had no duty to remediate
until it had knowledge of the problem. The court finds that Defendants did not have a
duty to fix the drainage problem until they were informed of the problem in 2011.
Plaintiffs contend that a casualty occurred. According to the Bylaws, Article VII,
Section 7.1, "In the event of damage to or destruction of all or any part of the Property
as a result of fire, or other casualty ... the Executive Board on behalf of the Association
shall promptly arrange for and supervise the prompt repair, replacement and
restoration thereof." Plaintiffs do not allege any specific casualty, only that there is
evidence that a casualty occurred because water damage is present. Because Plaintiffs
do not provide any facts to support the theory of casualty, the court finds that
Defendants had no duty pursuant to Article VII, Section 7.1 of the Bylaws to repair
damage from casualty. Summary Judgment is granted to Defendants on Plaintiffs'
theory of casualty.
7 Defendants' Motion for Summary Judgment is granted with regards to Plaintiffs'
claim of negligence for failure to fix the exterior wall of their unit and any drainage
issues that occurred to Plaintiffs' unit as a result of failure to remediate prior to the date
on which Plaintiffs informed the ACCA that there was a drainage issue. There remains
a genuine issue of material fact with regards to whether damage occurred between the
time Plaintiffs notified the ACCA of the drainage issues and when the ACCA did
remediate the drainage issues in the summer of 2013.
Plaintiffs' claim of negligent failure to maintain common areas includes Plaintiffs'
claims that the ACCA failed to remediate the mouse problem, failed to reimburse
Plaintiffs for contracting Abundant Wildlife, permitted Orkin to install orange foam
around the exterior of their unit, and failed to sand down and paint over the orange
foam for an extended period of time. Defendants argue that they only had a duty to
address any mice with regards to common spaces, and they did not have a duty to
address Plaintiffs' complaint of mice in the manner dictated by Plaintiffs. Defendants
cite to America v. Sunspray Condominium Association, for the contention that the
business decisions made by a corporation or condominium association are not
reviewable by the court without a showing that they were the result of fraud or bad
faith. Am. v. Sunspray Condo. Ass'n, 2013 ME 19, 114, 61 A.3d 1249. There is no
dispute that after being notified of the mouse problem by email on November 15, 2011,
the ACCA hired Orkin to remediate the problem. The Orkin appointment was on
November 25, 2011. Plaintiffs contend that to this day there remains some orange foam
on the exterior of their unit that has not been remediated. Furthermore, Plaintiffs
contend that Defendants acted in bad faith by delaying and then hiring Orkin against
Plaintiffs' wishes. ACCA did address the mouse issue, and did remediate. The court
grants Defendants' Motion for Summary Judgment with regards to Plaintiffs' claims of
8 negligent failure to maintain common elements by failing to address the mouse
problem and for permitting Orkin to install orange foam around the exterior of their
unit, finding no evidence of bad faith on Defendants' part. There remain genuine issues
of material fact concerning whether Defendants told Plaintiffs to seek out a specialist to
determine whether and where mice were getting into the unit, whether Defendants
stated that the ACCA would reimburse for this service, and whether Plaintiffs have
been damaged by ACCA's continued failure to remediate the orange foam.
Plaintiffs bring a count of negligence against the ACCA, Defendant Collishaw, and
Defendant G. DeCoste for failure to protect the ACCA finances from Defendant G.
DeCoste. Plaintiffs assert that G. DeCoste fell behind on his dues payments to the
association. Plaintiffs allege negligence on the part of Defendants the ACCA, G.
DeCoste and Collishaw in failing to enforce dues payments against all members.
Plaintiffs claim damages of lost income to the ACCA in the form of G. DeCoste's dues.
Defendant G. Decoste admits to having fallen behind on payment of dues to the
association. However, Defendant G. DeCoste has since repaid the ACCA the dues and
the late penalty. There is no remaining damage. The court grants Defendant's Motion
for Summary Judgment with respect to this count.
Plaintiffs bring two counts of negligence against Defendants G. DeCoste, C.
Davidson, Collishaw, and the ACCA for failure to protect Plaintiffs from harassing
behavior. Plaintiffs bring the first count for failing to protect Plaintiffs from the
harassing behavior of G. DeCoste. Plaintiffs bring the second count for failure to protect
Plaintiffs from the harassing behavior of Defendants J. and C. Collishaw. The behavior
Plaintiff alleges is detailed at the beginning of this order. Defendants argue that, if the
harassing behavior occured, which they deny, Defendants do not have a duty to protect
Plaintiffs from harassing behavior. "Ordinarily, individuals have no duty to protect
9 others from the criminal conduct of a third party. There are, however, exceptions to this
general proposition. An actor has a duty to protect those with whom he stands in a
special relationship." Gniadek v. Camp Sunshine at Sebago Lake, Inc., 2011 ME 11,
11 A.3d 308. A fiduciary relationship may be a type of special relationship, however
"not all fiduciary relationships are special relationships; only those where there is a
'great disparity of position and influence between the parties' will suffice." Id. at
Plaintiffs argue that Defendant's duty arises from a fiduciary relationship that
qualifies as a special relationship. Defendants disagree, arguing that the fiduciary
relationship that exists for the purposes of maintaining the condominium is not
emblematic of a "great disparity of position and influence between the parties."
Plaintiffs have not provided facts to support a great disparity of position and influence
sufficient to show a special relationship, therefore, the ACCA did not have a duty to
protect Plaintiffs from harassment. The same is true of Defendants G. DeCoste, C.
Davidson, and Collishaw. The court grants Summary Judgment in favor of Defendants
on the two counts of negligence for failure to protect Plaintiffs from harassment.
B. Breach of Fiduciary Duty
Plaintiff has also brought corresponding claims of breach of fiduciary duty for each
set of facts that led to a claim of negligence. For a claim of breach of fiduciary duty
Plaintiff must show a fiduciary duty owed to Plaintiff (a fiduciary relationship), a
knowing breach of that duty, and damages.
Simple recitations of a trusting relationship will not suffice for identifying a fiduciary duty. In order to survive a motion to dismiss a claim for breach of fiduciary duty, the plaintiff must set forth specific facts constituting the alleged relationship with sufficient particularity to enable the court to determine whether, if true, such facts could give rise to a fiduciary relationship.
10 Bryan R. v. Watchtower Bible & Tract Soc. of New York, Inc., 1999 ME 144,
A.2d 839. "[T]he elements of a fiduciary relationship are (1) the actual placing of trust
and confidence in fact by one party in another, and (2) a great disparity of position and
influence between the parties at issue." Ramsey v. Baxter Title Co., 2012 ME 113, <][ 7, 54
A.3d 710 (citation omitted). ·whether a defendant owes a plaintiff a duty of care is a
matter of law. Id. at <][ 11.
Plaintiffs allege the ACCA and the members of the executive board of the ACCA
owed Plaintiffs a fiduciary duty. Plaintiffs cite to the ACCA's ability to create and
enforce rules as evidence of a fiduciary relationship. Defendants have questioned
Plaintiffs' ability to show that Defendants owed Plaintiff a duty with respect to the
claims made. The court discusses each claim in turn.
Plaintiffs claim Defendants the ACCA, G. DeCoste, and Collishaw owed Plaintiffs a
fiduciary duty to maintain, repair and replace common elements. The court does grant
summary judgment on this matter with respect to Defendants G. DeCoste and
Collishaw. Defendants G. DeCoste and Collishaw may be members of the ACCA, and
the ACCA may owe Plaintiffs a fiduciary duty, however Plaintiffs have offered no
evidence to support a finding of fiduciary duty for Defendants G. DeCoste and
Collishaw as individuals.
Similar to Plaintiffs' claim of negligence, Plaintiffs contend that Defendants have
demonstrated the element of fiduciary duty through Article II, Section 2.3.6 of the
Bylaws. Because it is the purview of ACCA to maintain common elements, Plaintiffs
attest that they trust the ACCA to maintain the common elements and that the ACCA
has significantly greater influence on issues concerning maintenance. Defenda~ts argue
that the Declaration does not require the ACCA to maintain the units themselves and
that all of the claims made by Plaintiff are for maintenance and repairs within the unit.
11 The Declaration defines the boundaries of the units in .Section 3.5. Plaintiff does not
contest that many of the claims made require maintenance within the unit, however,
Plaintiff claims that because the mice and water damage are the result of forces outside
of the unit the ACCA's duty according to Article ll, Section 2.3.6 of the Bylaws has been
triggered. The court finds that Plaintiff has demonstrated that Defendant has a fiduciary
duty to maintain and repair common elements. There is a question of material fact as to
whether maintenance and repair of water damage or the entry of mice from the exterior
of the unit constitute maintenance and repair of common elements.
The court finds, following the same reasoning as in its analysis of Plaintiff's
negligence claim, that there remain issues of fact concerning whether Defendants told
Plaintiffs to seek out a specialist to determine whether and where mice were getting
into the unit, whether Defendants stated that the ACCA would reimburse for this
service, whether Plaintiffs have been damaged by ACCA's continued failure to
remediate the orange foam and whether damage occurred between the time Plaintiffs
notified the ACCA of drainage issues and when the ACCA remediated the drainage
issues in the summer of 2013.
Plaintiffs claim Defendants the ACCA, G. DeCoste, C. Davidson, and Collishaw
owed Plaintiffs a fiduciary duty to protect the finances of the association from G.
DeCoste. As discussed in the negligence section, Plaintiffs have not sufficiently
demonstrated damages. Therefore, Plaintiffs have not shown a prima facie case for
breach of fiduciary duty. The court grants summary judgment on this claim.
With respect to Plaintiffs claims for breach of fiduciary duty against the ACCA, G.
DeCoste, C. Davidson, and Collishaw for failing to protect Plaintiffs from the harassing
behavior of G. DeCoste and J. and C. Davidson, as the court discusses in the similar
counts of negligence, Plaintiffs have not provided evidence of a special relationship that
12 would give rise to a duty on Defendants' part by showing an actual placing of trust or
confidence by Plaintiffs :in the ACCA and a great disparity of position and :influence
between the parties. Because there is no fiduciary relationship, the court grants
summary judgment to Defendant on this count of breach of fiduciary duty. See Gniadek
v. Camp Sunsh:ine at Sebago Lake, Inc., 2011 ME 11, 117-19, 11 A.3d 308.
C. Defamation
Plaintiffs br:ing a claim of defamation aga:inst Defendants G. DeCoste and P. DeCoste
for calling the Police and reporting that Pla:intiff Clark was smoking marijuana.
Defendants move the court to grant summary judgment on this count. Common law
defamation consists of:
(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amount:ing at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.
Lester v. Powers, 596 A.2d 65, 69 (Me. 1991) (citing Restatement (Second) of Torts§ 558
(1977)). Plaintiffs assert that the statements made to the police, and conveyed by email
to Defendant M. Richardson by Defendant P. DeCoste, were both false and defamatory. 3
Plaintiffs assert that Defendants DeCoste made the statements maliciously. Further,
Plaintiffs plead that the statements are actionable irrespective of special harm daim:ing
that the report was a slanderous implication of criminal behavior. Plaintiffs allege that
although the possession of a small amount of marijuana is a civil :infraction :in Kittery,
not a crime, it is still viewed by the general public as a criminal act and therefore has the
reputational effect of criminal accusal. 4
3 Defendants deny that any such statements were made. 4 Possession of marijuana remains a federal crime pursuant to the Controlled Substances Act, 21 U.S.C. § 811.
13 The law of defamation was written to protect an individual's reputation. See
Saunders v. VanPelt, 497 A.2d 1121, 1124-25 (Me. 1985). ("[W]ords falsely spoken are
slanderous per se if they relate to a profession, occupation or official station in which
the plaintiff was employed.") Allegations of marijuana possession rise to the level of
reputational harm envisioned by slander per se. The court finds that Plaintiffs have set
out a prima facie case for defamation and that questions of material fact remain as to
what was said and the intent of publication. The court denies Defendants' Motion for
Summary Judgment with respect to Plaintiff's claim of defamation. 5
D. Emotional Distress
Defendants move the court for summary judgment on Plaintiffs' claims of negligent
infliction of emotional distress and intentional infliction of emotional distress. Plaintiffs
have brought a claim of negligent infliction of emotional distress against Collishaw, C.
Davidson, G. DeCoste, and the ACCA. Plaintiffs have brought a claim of intentional
infliction of emotional distress against Collishaw, C. Davidson, J. Davidson, G. DeCoste,
P. DeCoste and the ACCA.
The concept of recovery for purely mental and emotional suffering separate from
physical damage is a relatively new legal concept. See Wyman v. Leavitt, 71 Me. 227
(1880); Herrick v. Evening Express Pub. Co., 120 Me. 138, 113 A. 16 (1921); Gammon v.
Osteopathic Hosp. of Maine, Inc., 534 A.2d 1282, 1284 (Me. 1987). In 1970, the Law
Court adopted a rule allowing for recovery where there is "substantial and objectively
manifested mental and emotional suffering proximately caused by an act of negligence
even though there [was] no discernable trauma from external causes." Gammon, 534
A.2d at 1284 (citing Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117 (Me.1970)).
5 Plaintiff has also pled that Defendant DeCoste told Defendant E. Skidmore that Plaintiff Clark was a drug dealer. Complaint 9[147; Response S.M.F 9[47. There is no record citation to support this contention.
14 Nine years later, the Law Court recognized and distinguished the tort of intentional
infliction of emotional distress in Vicnire v. Ford Motor Credit Co. Vicnire v. Ford
Motor Credit Co., 401 A.2d 148, 153-55 (1979).
[A] plaintiff may recover damages for emotional distress resulting from the tortious conduct of a defendant in three distinct situations. First, as traditionally provided, mental distress or 1/pain and suffering" accompanying physical injury caused by tortious conduct is compensable. Second, as established in Wallace, a plaintiff may recover damages for emotional distress resulting from negligent conduct (even though that conduct caused no direct physical injury) if the distress is ~~substantial and manifested by objective symptomatology," that is, results in illness or bodily harm. And, third, as recognized in this opinion, a defendant is subject to liability if he engages in extreme or outrageous conduct that intentionally or recklessly inflicts severe emotional distress upon another.
Vicnire v. Ford Motor Credit Co., 401 A.2d 148, 154-55 (Me. 1979). In Vicnire, the
Court distinguishes negligent and intentional infliction of emotional distress by the
initial showing required by a plaintiff. For a claim of negligent infliction of emotional
distress, a plaintiff must demonstrate that the negligent conduct of the defendant
caused emotional harm so significant that it manifested itself in physical symptoms. Id.
For a claim of intentional infliction of emotional distress, a plaintiff must show that the
defendant's conduct was so extreme or outrageous that defendant intentionally or
recklessly inflicted emotional distress on plaintiff.
Defendants challenge Plaintiffs' claim of negligent infliction of emotional distress on
the basis of Plaintiffs' have not made a showing of a special relationship, therefore
Plaintiffs have not made out a prima facie case for negligent infliction of emotional
distress. A showing of a special relationship is one possible way of showing that
emotional distress would be foreseeable from the negligent acts of a defendant, which is
an element of the claim.. " Culbert v. Sampson's Supermarkets Inc., 444 A.2d 433,434-38
(Me. 1982). However, a showing of a special relationship is not the only way to show
foreseeability. In this case, Plaintiffs were not bystanders, but were in fact the victims of
15 the events. The court finds that, if Plaintiff's allegations are found to be true, emotional
distress would have been foreseeable by the actors themselves: Collishaw, C. Davidson
and G. DeCoste. Neither foreseeability of harm nor duty can be imputed on the ACCA.
The court finds that Plaintiffs have made a sufficient showing of substantial distress
manifested by objective symptomatology for a prima facie showing of for negligent
infliction of emotional distress. Plaintiffs assert that Plaintiff Richardson "has been on
anti-anxiety medication and under the regular care of professionals due to the
harassment and stress at Adams Cove." Opp. S.M.F.
fact concerning the alleged negligent acts and the damages suffered by Plaintiffs. The
court denies Defendants' Motion for Summary Judgment on Plaintiffs' claim of
negligent infliction of emotional distress with respect to Collishaw, C. Davidson and G.
DeCoste. The court grants Defendants' Motion for Summary Judgment on Plaintiffs'
claim of negligent infliction of emotional distress with respect to the ACCA. 7
Defendants challenge Plaintiffs' claim of intentional infliction of emotional distress
on the grounds that Plaintiffs have failed to show that Defendants' conduct was so
extreme or outrageous that Defendants intentionally or recklessly inflicted emotional
distress on Plaintiffs. The issue of whether alleged conduct is sufficiently extreme or
outrageous to meet the above standard is an issue for the court to determine.
Champagne v. Mid-Maine Medical Center, 1998 !viE 87, <][16, 711 A.2d 842, 847; Gray v.
State of Maine, 624 A.2d 479, 484 (Me. 1993).
6 Plaintiffs cite to their own Answers to Interrogatories to support this conclusion. As a non-expert, Plaintiff's "testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue." M.R. Evid. 701. 7 The claim remains with respect to the individual defendants because Plaintiffs allege the distress was caused by the individual defendants' actions. Plaintiffs have not established any duty on behalf of the ACCA to protect Plaintiffs from harassing behavior. Judgment is granted on claims of emotional distress with respect to the ACCA.
16 Plaintiffs bring the claim of intentional infliction of emotional distress alleging that
Plaintiffs' parking space and view have been intentionally and repeatedly blocked; that
Defendants have parked in Plaintiffs' parking spot; that Defendant P. DeCoste filed a
frivolous police report; that Defendants G. and P. DeCoste defamed Plaintiffs; that
Defendant DeCoste sent threatening text messages; that Defendants conspired to
remove Plaintiff Richardson from the role of president of the ACCA; that Defendants
vandalized Plaintiffs' cars; that Defendants generally permitted other association
members to harass Plaintiffs; that Defendants removed the real estate flyers from the
box on Plaintiffs' property; that Defendants permitted Orkin to spray orange foam
around Plaintiffs property; and that Defendants refused to maintain common areas. All
of these allegations, taken individually, do not rise to the level"so extreme and
outrageous as to exceed all possible bounds of decency". However, when viewed
together, the court finds that the behavior of the individuals does meet the prima facie
standard and presents genuine issues of material fact concerning which activities
occurred as presented by Plaintiff. 8 vVhile the court finds questions of fact regarding
Plaintiffs' claim of intentional infliction of emotional distress directed against
Defendants Collishaw, C. Davidson, J. Davidson, G. DeCoste, P. DeCoste, the court
does not find that Plaintiffs have made a prima facie showing with respect to the ACCA.
The court denies Defendant's motion for Summary Judgment on Plaintiffs' claim of 8 In order to prove a claim of intentional infliction of emotional distress, a plaintiff:
must present evidence that (1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from the defendant's conduct; (2) the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, utterly intolerable in a civilized community; (3) the actions of the defendant caused the plaintiffs emotional distress; and (4) the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.
Lougee Conservancy v. CitiMortgage, Inc., 2012 ME 103, '[25, 48 A.3d 774 (citing Lyman v. Huber, 2010 ME 139, '['[ 16, 21-23, 10 A.3d 707).
17 intentional infliction of emotional distress with respect to Defendants Collishaw, C.
Davidson, J. Davidson, G. DeCoste, P. DeCoste. The court grants Defendant's motion
for Summary Judgment on Plaintiffs' claim of intentional infliction of emotional distress
with respect to the ACCA.
E. Punitive Damages
Defendants move the court for summary judgment on Plaintiffs' requested relief in
the form of punitive damages. "In Maine, a plaintiff may recover punitive or exemplary
damages when the defendant commits a tortious act with actual or implied malice
toward the plaintiff." Maine Civil Remedies § 4-4(a). Furthermore, "[m]alice can be
implied where the defendant's deliberate conduct is sufficiently 'outrageous,' but it
cannot be implied 'by the defendant's mere reckless disregard of the circumstances."'
Lougee Conservancy v. CitiMortgage, Inc., 2012 ME 103, <][ 27, 48 A.3d 774. Plaintiffs
have made a prima facie showing of "outrageous" conduct, as is discussed with
reference to Plaintiffs' claims of emotional distress. With respect to Plaintiffs' remaining
claims of emotional distress, dismissal of Plaintiffs' request for punitive damages would
be inappropriate at this time.
N. Conclusion
The court DENIES Defendants' Motion for Summary Judgment on Plaintiffs' counts of negligence and fiduciary duty for failure to maintain and repair common elements with respect to the following issues: the hiring and reimbursement for Abundant Wildlife, remediation of the orange foam installed by Orkin and the remediation of water damage and drainage problems after the ACCA was notified of their existence.
The court DENIES Defendants' Motion for Summary Judgment on Plaintiffs' count of negligent infliction of emotional distress with respect to Defendants Collishaw, C. Davidson and G. DeCoste. The court GRANTS Defendants' Motion for Summary Judgment on Plaintiffs' count of negligent infliction of emotional distress with respect to Defendant ACCA.
The court DENIES Defendants' Motion for Summary Judgment on Plaintiffs' count of intentional infliction of emotional distress with respect to Defendants Collishaw, C. Davidson, J. Davidson, G. DeCoste, P. DeCoste. The court GRANTS Defendants'
18 Motion for Summary Judgment on Plaintiffs' count of :intentional infliction of emotional distress with respect to Defendant ACCA.
The court DENIES Defendants' Motion for Summary Judgment on Plaintiffs' count of defamation.
The court DENIES Defendants' Motion for Summary Judgment on Plaintiffs' plea for punitive damages with respect to Defendants Collishaw, C. Davidson, J. Davidson, G. DeCoste, P. DeCoste. The court GRANTS Defendants' Motion for Summary Judgment on Plaintiffs' plea for punitive damages with respect to the ACCA.
DATE: John ~il, Jr. Justice, Superior Court
19 ATTORNEY FOR PLAINTIFF: AMYB MCGARRY MCGARRY LAW OFFICES POBOX 1208 KENNEBUNK ME 04043
ATTORNEYS FOR DEFENDANTS: THOMAS MCKEON JOSEPH L CAHOON RICHARDSON WHITMAN LARGE & BADGER POBOX9545 PORTLAND ME 04112-9545 STATE OF MAINE SUPERIOR COURT YORK, SS. CIVIL ACTION DOCKETNO. CV-12-1~~ MEREDITH RICHARDSON and ) 0ulJ - '/01<~ Pjl<& 2oJ3 CHRISTIAAN CLARK, ) ) Plaintiffs, ) v. ) ) ORDER GARY DECOSTE, ) PATRICIA DECOSTE, ) CASSANDRA DAVIDSON, ) JEREMY DAVIDSON, ) MICHELE COLLISHAW and ) ADAMSCOVECONDOMTIITUM ) ASSOCIATION, ) ) Defendant. )
This case arises out of a dispute concerning the membership of the Adams Cove
Condominium Association, the maintenance of the units pursuant to decisions made by
the members of the Association, and alleged harassment of Plaintiffs by condo unit
owners. Plaintiffs have filed a complaint against five other condo owners and the
Association alleging four counts ofNegligence, four counts ofBreach of Fiduciary Duty,
Defamation, Intentional Infliction of Emotional Distress, Negligent Infliction of
Emotional Distress, and she has made a request for punative damages.
Defendants Jeremy Davidson and Patricia Decoste Move to Amend their
Answers. Both filed prose answers stating in a single sentence that they denied
everything. Plaintiff moves for Judgment against Jeremy Davidson for Failure to File an
Answer (on the basis that Plaintiff was not properly served) and for Judgment against
Patricia Decoste for Failure to File a Sufficient Answer. Plaintiff also Moves the Court to
Appoint a Property Manager for Adams Cove Condominium Association.
1 II. Motion for Judgment for Failure to File Sufficient Answer and Motion to
Amend Answer
"[A] party may amend the party's pleading only by leave of court or by written
consent of the adverse party; and leave shall be freely given when justice so requires."
Me. R. Civ. P. 15. "If the moving party is not acting in bad faith or for delay, the motion
will be granted in the absence of undue prejudice to the opponent." 1 Field, McKusick &
Wroth, Maine Civil Practice§ 15.4 (2d ed.1970); Holden v. Weinschenk, 1998 ME 185,
715 A.2d 915,917. In the current case, Plaintiffs have offered no evidence ofbad faith on
the part of Defendants Jeremy Davidson and Patricia Decoste. Defendants both filed
timely answers putting Plaintiffs on notice of their intent to participate in the case. No
undue prejudice will be caused by allowing Defendants to amend. The Court Allows
Defendants Jeremy Davidson and Patricia Decoste's Motions to Amend and Denies
Plaintiffs Motions for Judgment for Failure to File Sufficient Answers.
III. Motion to Appoint Property Manager
Plaintiff has cited to no legal authority or condominium association bylaw to
support her Motion to Appoint a Property Manager. Furthermore, Defendant the
Association has already agreed to complete the work requested on Plaintiff's unit. If
Plaintiff seeks appointment of a property manager as injunctive relief for the harms she
alleges, such as the Association's failure to make the requested improvements to her unit,
she has not met the four part test as laid out in Ingraham v. University ofMaine. 1 Without
1 "Before granting a preliminary or permanent injunction, the Court must find that four criteria are met: (1) that plaintiff will suffer irreparable injury if the injunction is not granted, (2) that such injury outweighs any harm which granting the injunctive relief would inflict on the defendant,
2 any legal authority to appoint a Property Manager, and with Plaintiff's request that the
Court order improvements be made to her unit moot, the Court Denies Plaintiff's Motion
to Appoint a Property Manager.
IV. Conclusion
The Court Grants Defendants Patricia Decoste and Jeremy Davidson's Motion to
Amend Answer, Denies Plaintiffs Motions for Judgment Against Jeremy Davidson for
Failure to File an Answer and Patricia Decoste for Failure to File a Sufficient Answer,
and Denies Plaintiffs Motion to Appoint a Property Manager.
DATE: John O'Neil, Jr. Justice, Superior Court
(3) that plaintiff has exhibited a likelihood of success on the merits (at most, a probability; at least, a substantial possibility), (4) that the public interest will not be adversely affected by granting the injunction." Ingraham v. Univ. of Maine at Orono, 441 A.2d 691,693 (Me. 1982). Because Defendant the Association has already agreed to make the improvements Plaintiff requests, there is no irreparable harm shown. Furthermore, without irreparable harm, Plaintiff's harm does not outweigh the harm to Defendants of appointment of a property manager. Plaintiff has not shown likelihood of success on the merits. Finally, a granting of a motion to appoint a property manager on so scarce authority could be adverse to public interest.
3 ATTORNEY FOR PLAINTIFFS: AMY MCGARRY MACGARRY LAW OFFICES PO BOX 1208 KENNEBUNK ME 04043
ATTORNEY FOR DEFENDANTS: THOMAS MCKEON RICHARDSON WHITMAN LARGE & BADGER PO BOX 9545 PORTLAND ME 04112-9545