Smaha v. Phillips

• Court: Superior Court of Maine
• Decided: May 4, 2012
• Docket: PENcv-10-156
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT PENOBSCOT, SS. CIVIL ACTION DOCKET NO B~J,CfV-10-156 w~A- ~f:-N- 5f4jJ..Ot :2...- EVELYN L. SMAHA,

Plaintiff, v. ORDER CATHERINE PHILLIPS and JENNIFER PARADY,

Defendant.

This Order addresses the motion for summary judgment filed by defendant

Catherine Phillips. In her complaint, plaintiff Evelyn Smaha includes several counts

pertaining to an alleged assault against her by Jennifer Parady. She also alleges in Count

IV that she was an employee of Catherine Phillips when Ms. Parady assaulted her, that

Ms. Phillips was responsible for the oversight and supervision of Ms. Parady at the time

of the alleged assault, that she failed to properly and with due care oversee and

supervise Ms. Parady, and that the failure to do so was negligent and in violation of the

duties owed to plaintiff. In the motion for summary judgment, defendant alleges that

she satisfied, as a matter of law, any duty to protect the plaintiff from the actions of

Ms.Parady

DISCUSSION

"Summary judgment is appropriate when review of the parties' statements of

material facts and the referenced record evidence indicates no genuine issue of material

fact that is in dispute, and, accordingly, the moving party is entitled to judgment as a

matter of law." Dyer v. Dep't ofTransp., 2008 ME 106,

genuine issue of material fact exists when there is sufficient evidence to require the fact-

finder to choose between competing versions of a fact that could affect the outcome of the case. Id.; Inkel v. Livingston, 2005 ME 42, 9I 4, 869 A.2d 745, 747. The court will

review the evidence in the light most favorable to the non-moving party. Cookson v.

Brewer School Dep't, 2009 ME 57, 9I 12, 974 A.2d 276, 281.

"[A) plaintiff who brings a cause of action for negligence must establish a prima

facie case that the defendant owed him a duty of care, the defendant breached that

duty, and the breach was a proximate cause of some injury to the plaintiff." Estate of

Cilley v. Lane, 2009 ME 133, 9I 10, 985 A.2d 481, 485 (citing Addy v. Jenkins, Inc., 2009 ME

46, 9I 8, 969 A.2d 935, 938). The threshold question of whether a duty exists is a

question of law and reflects proper grounds for summary judgment disposition. See

Radley v. Fish, 2004 ME 87, 9I 6, 856 A.2d 1196, 1198-99 (citing Parrish v. Wright, 2003 ME

90, 9I 18, 828 A.2d 778, 783).

1. Factual Issues

The summary judgment record clearly reflects no dispute about the following:

Catherine Phillips possessed a power of attorney that authorized her to provide

care for her elderly parents, Leon and Betty Parady. Prior to the incident that is the

subject of the underlying complaint, Jennifer Parady, a family member, had been a care

provider for Leon and Betty, but she had either quit or had been terminated. Ms.

Phillips, who had two sisters who were also involved in their parents' care, then hired

the plaintiff as the replacement. On September 22, 2009, the plaintiff was working in this

capacity inside Leon and Betty Parady's residence and Jennifer Parady was conducting

a yard sale outside the residence. At some point during that day, Ms. Parady entered

the residence and allegedly assaulted the plaintiff. The Court will carefully examine the

summary judgment record to evaluate if evidence supports the plaintiff's position that

there is a genuine issue of material fact concerning Ms. Phillips' awareness of Jennifer

Parady's dangerousness prior to the assault, whether that awareness, if proved, could create a duty owed to the plaintiff, and, if a duty existed, whether defendant satisfied

that duty as a matter of law.

In filing the motion for summary judgment, the defendant, referring to the

allegations in the complaint, maintained that she had no duty to protect the plaintiff for

the actions of Ms. Parady because no "special relationship" existed between Ms. Phillips

and Ms. Parady that imposed a duty on the defendant. In fact, there is no factual

support for the claim that Ms. Phillips had a duty to supervise or oversee the activities

of Jennifer Parady because Ms. Parady was no longer employed as a caregiver by

September 22, 2009. In Plaintiff's opposition to the motion for summary judgment,

however, plaintiff shifted gears\ and liability theory, pointing out that she was

defendant's employee at the time of the alleged assaulf and, under some circumstances,

an employer has a duty to protect an employee from the actions of a third party.

Plaintiff cites to her own deposition and her answers to interrogatories 3 to develop

evidence that defendant was aware of Ms. Parady's dangerousness prior to the alleged

assault. Defendant argues that most of this material referenced by plaintiff is

inadmissible and cannot be considered by the Court. The factual basis of plaintiff's

claim must be scrutinized fully to determine whether a genuine issue of material fact

exists that could support a finding that defendant Phillips was aware of a danger that

Jennifer Parady posed.

1 As will be demonstrated later, what plaintiff ultimately argues is a different version of the same tort that was originally maintained. 2 Defendant agrees that there is a genuine issue of material fact on this issue. Defendant says plaintiff was let go prior to the alleged assault, while plaintiff says she was let go later. 3 By referring to the answers to interrogatories in responding to the motion, plaintiff created a confused and cumbersome record. The source of the information supporting the answer was usually not at all clear, making decisions on admissibility difficult. Citing to a 24 page answer, in the absence of a page reference, violates the requirement that the statement be short and concise as required by M.R. Civ. P. 56(h). It would have been preferable to provide a focused, concise affidavit of the client. In her counter statement of material facts concerning the dangerousness issue,

plaintiff refers to pages 109 through 111 of her deposition in which she relates what the

three sisters told her, inadmissible to prove the truth of the matter asserted because only

the statement of the defendant is admissible and there is no parsing of which sister

made which statement. These statements, made in the presence of the plaintiff, would

be admissible, however, to prove the then existing mental or emotional condition of the

declarant, which was their subjective concern surrounding Jennifer Parady's reaction to

being fired. This should be read in conjunction with the answer to interrogatory 9 at p.

7, which is mostly inadmissible with the exception that Jennifer was going to be fired

and the sisters were planning to "stake out the property" until the plaintiff returned to

work on the following Monday, September 21, 2009. Additionally, on page 111 of

plaintiff's deposition, in the context of Jennifer Parady's reaction to no longer providing

care for the Betty and Leon Parady, the defendant purportedly made a statement

indicating an awareness of plaintiff's insecurity about safety, saying, "if you're really

scared, your husband can be there" (at the residence where she worked). The

statement that all three sisters knew that Jennifer was a dangerous person, and the

statements that Patti made are inadmissible.

From defendant's statement of material facts #5, relying on the Jennifer Parady

deposition, p. 7, as well as pages 70 and 72 of the plaintiff's deposition and based on

defendant's admission to statement 11 in plaintiff's statement of material facts, it could

be concluded that defendant Phillips permitted Jennifer Parady to conduct a yard sale

on the property of Leon and Betty Parady on the day of the alleged assault4 • There is an

issue of fact with regard to whether Ms. Phillips told Jennifer Paradis not to come into

4 Plaintiff cites her answer to question 9 in support of this proposition as well. In the absence of a page number, the Court is not sifting through a 24 page answer to find relevant areas. the house. Based on plaintiff's deposition at pages 70 and 73, in which Ms. Smaha

agreed with defense counsel's suggestion that defendant told Ms.Parady that she was

not to enter the residence during the yard sale, as well as page 7 of the answer to

interrogatory #9 (statement of party opponent), there is evidence that defendant told

Ms.Parady that she was not to enter the house during the yard sale. Also, according to

the plaintiff's version of events, she told the defendant that the defendant's decision to

let Jennifer conduct the yard sale caused the plaintiff to be concerned about her safety.

Answer to interrogatory #9, p.7.

While plaintiff was working on September 22, 2009, her second day of work

following Jennifer's dismissal, Jennifer Parady came to the door during the yard sale,

screaming and pounding on it and the plaintiff's husband, who was present, let her in.

The defendant was not present at the time. Smaha Deposition, at p. 73, Answer to

interrogatory #9 at p. 7. Both Ms. Parady and plaintiff called defendant, asking her to

come to the home. Answer to interrogatory #9 at p. 9. When defendant arrived at her

parents' home, Ms. Parady had already entered and was sitting at a table drinking

coffee. According to plaintiff's version, defendant told Ms. Parady to leave, but Ms.

Parady, who was upset, refused. Defendant then asked the plaintiff to leave, but she

indicated that it had been agreed that Ms. Parady was no longer working and therefore,

she should be the one to leave. Unable to get either to leave, defendant left the kitchen,

where plaintiff and defendant were located, to go into another room, at which time the

alleged assault took place. Answer to interrogatory #9 at p. 11.

2. Legal Analysis

A claim of negligence requires the existence of a duty of care and there is no

general obligation to protect others from the actions of third parties. See Bryan R. v.

Watchtower Bible and Tract Soc'y ofN.Y. Inc. 1999 ME 144,

plaintiff and defendant. See Fortin v. The Roman Catholic Bishop of Portland, 2005 ME 57, f}[

39, 871 A.2d 1208, 1222. If a plaintiff asserts the existence of a special relationship

under section 315 of the Restatement (Second) Of Torts, an action for negligent

supervision can be maintained. Id. Section 315 provides that there is a no duty to control

the conduct of a third person to prevent her from causing harm to another unless a

special relation exists between (a) the actor (defendant) and the third person or (b) the

actor (defendant) and the other (plaintiff). Restatement (Second) of Torts§ 315 (1965).

Establishing an employer I employee relationship establishes a special relationship for

purposes of this analysis. See Restatement (Second) of Torts§ 315 cmt. on clauses (a)

and (b) (1965), and§ 314A cmt. a (1965). The duty is only to exercise reasonable care

under the circumstances and the defendant is not liable where she neither knows or

should have known of the unreasonable risk. Restatement (Second) of Torts§ 314A cmt.

e. (1965). The version of this tort based on section 315(b) has not been formally

recognized in Maine by holding in a case, but the tort of negligent supervision based on

Section 315(a) has been recognized in Fortin, 2005 ME 57, and the 315(b) version has

been specifically described in DeCambria v. Carson, 2008 ME 127 f}[ 12, 953 A.2d 1163.

Reviewing the evidence in the light most favorable to the non-moving party, one

could conclude the following:

(a) Although there is no admissible evidence that Ms. Parady posed more of a

threat to plaintiff than the defendant and her sisters, all four were concerned that

Jennifer Parady would react negatively after being told she would no longer be taking

care of defendant's parents.

(b) Based on the necessity of "staking out" the house during the weekend after

letting Ms. Parady go, defendant's statement that if the plaintiff were afraid, she could have her husband stay at the house when she worked in the next week, and defendant's

admonition to Jennifer not to come into the house, it could be concluded that defendant

was aware that Ms. Parady could pose a threat of harm at the home of Betty and Leon

Parady to plaintiff, as well as the three sisters.

This evidence could be sufficient to impose a duty. By giving Ms. Parady

permission to conduct the yard sale despite the plaintiff's expression of concern about

her security, by not instituting appropriate safety controls during the yard sale, or by

not intervening more aggressively on September 22, 2009 immediately preceding and

during the incident, one could conclude that the defendant violated her duty to protect

from a third party.

Based on this record, the Court cannot conclude that the defendant satisfied her

duty as a matter of law and the motion for summary judgment is Denied.

The clerk is directed to incorporate this Order into the docket by reference.

Dated: May 4, 2012 WILLIAM ANDERSON JUSTICE, SUPERIOR COURT EVELYN SMAHA - PLAINTIFF SUPERIOR COURT 51 WEST COILEY ROAD PENOBSCOT, ss. OLD TOWN ME 04468 Docket No BANSC-CV-2010-00156 Attorney for: EVELYN SMAHA DAVID J VAN DYKE - RETAINED HORNBLOWER LYNCH RABASCO & VANDYKE DOCKET RECORD 261 ASH STREET PO BOX 116 LEWISTON ME 04243-0116

VS PATRICIA TEWHEY INDIV & P.R. EST-DISM - DEFENDANT 2800 OHIO STREET GLENBURN ME 04401 Attorney for: PATRICIA TEWHEY INDIV & P.R. EST-DISM DAVID VERY - RETAINED NORMAN HANSON & DETROY 415 CONGRESS STREET PO BOX 4600 PORTLAND ME 04112-4600

JENNIFER PARADY - DEFENDANT 50 PEMBROKE DRIVE #4 OLD TOWN ME 04468 Attorney for: JENNIFER PARADY ARTHUR GREIF - RETAINED GILBERT & GREIF 82 COLUMBIA ST PO BOX 2339 BANGOR ME 04402-2339

CATHERINE PHILLIPS - DEFENDANT

Attorney for: CATHERINE PHILLIPS MICHAEL RAIR - RETAINED LAW OFFICE OF MICHAEL L. RAIR 43 COLUMBIA STREET SUITE ONE PO BOX 2580 BANGOR ME 04402-2580

PATRICIA TEWHEY PR EST LEON PARADY-DISM - DEFENDANT

Attorney for: PATRICIA TEWHEY PR EST LEON PARADY-DISM DAVID VERY - RETAINED NORMAN HANSON & DETROY 415 CONGRESS STREET PO BOX 4600 PORTLAND ME 04112-4600

PATRICIA TEWHEY PR EST BETTY PARADY-DIS M - DEFENDANT 2800 OHIO ST GLENBURN ME 04401

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