York v. C.N.Brown Co.

Maine Superior

York v. C.N.Brown Co.

DecidedSeptember 28, 2017

DocketCUMcv-17-20

StatusUnpublished

This text of York v. C.N.Brown Co. (York v. C.N.Brown Co.) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

York v. C.N.Brown Co., (Me. Super. Ct. 2017).

Pincite

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-17-20

JONATHAN YORK, as Guardian of SHERRI YORK,

Plaintiff, ~ STATE OFMAU\JC V. 1..oumoorfand, S!., C'91*'s ~ ORDER

C.N. BROWN CO., et al., S P 28 2017 ~ : /QfA Defendants. REt;EfVEC Before the court is a motion by defendant C.N. Brown Co. to dismiss the revised

amended complaint.

For purposes of a motion to dismiss, the material allegations of the complaint must

be taken as admitted. Ramsey v. Baxter Title Co., 2012 ME 113 ,r 2, 54 A.3d 710. The

complaint must be read in the light most favorable to the plaintiff to determine if it sets

forth elements of a cause of action or alleges facts that would entitle plaintiff to relief

pursuant to some legal theory. Bisson v. Hannaford Bros. Co., Inc., 2006 ME 131 ,r 2, 909

A.2d 1010. Dismissal is appropriate only when it appears beyond doubt that the plaintiff is

not entitled to relief under any set of facts that he might prove in support of his claim.

Moody v. State Liquor & Lottery Commission, 2004 ME 20 ,r 7, 843 A.2d 43. However, a

plaintiff may not proceed if the complaint fails to allege essential elements of the cause of

action. See Potter, Prescott, Jamieson & Nelson P.A. v. Campbell, 1998 ME 70 ,r,r 6-7, 708 A.2d

283.

York's revised amended complaint asserts five causes of action against C.N. Brown;

negligence, premises liability, intentional infliction of emotional distress, negligent

infliction of emotional distress, and failure to supervise and control Eric Gwaro, who is

alleged to have assaulted Sherri York in C.N Brown's parking lot. 1. York's Negligence Claim

As C.N. Brown points out, it is well established in Maine that parties ordinarily have

no duty to protect others from the criminal conduct of a third party. E.g., Gniadek v. Camp

Sunshine, 2011 ME 11 ,r 17, 11 A.3d 308. Nevertheless, the court concludes that under the Law Court's decision in Kaechele v. Kenyon Oil Co., 2000 ME 39, 747 A.2d 167, York has

stated a cognizable claim for negligence.

In the Kaechele case the Law Court ruled that the proprietor of a 24 hour

convenience store has a duty to exercise reasonable care regarding the safety of its patrons,

including a duty to guard patrons on its premises from known dangers and dangers that it

should reasonably anticipate. 2000 ME 39 ,r,r 8-10. Kaechele specifically involved an

assault upon a patron of a convenience store in the store parking lot.

The revised amended complaint alleges that a poorly trained employee of C.N.

Brown observed that Sherri York had been injured when she returned to the Big Apple at

2:31am, that he did not call the police or make any effort to ensure York's safety, and that

when she went back out into the parking lot, surveillance camera visible to the C.N. Brown

employee recorded Eric Gwaro violently assaulting York. The revised amended complaint

further alleges that Gwaro then dragged York to an adjacent property where she was

severely beaten, and that the C.N. Brown employee never called the police.

Those allegations are sufficient to state a claim for negligence against C.N. Brown

under Kaechele.

2. Premises Liability

Premises liability is based on the existence of a dangerous condition on the

property, and the court is aware of no authority suggesting that criminal conduct by a third

person (not alleged to have been a frequent presence in the parking lot or on the premises)

can constitute a "dangerous condition" on the premises.

2 C.N. Brown's motion to dismiss is granted with respect to York's premises liability

claim.

3. Intentional Infliction of Emotional Distress

In order to recover on a claim of intentional infliction of emotional distress (IIED), a

plaintiff must prove that

(1) the defendant engaged in conduct that intentionally or recklessly caused

severe emotional distress or was substantially certain that such distress would

occur from the defendant's conduct;

(2) the conduct was so extreme and outrageous as to exceed all bounds of

decency and be regarded as atrocious and intolerable in a civilized society;

(3) the defendant's conduct caused the plaintiffs emotional distress; and

(4) the emotional distress was so severe that no reasonable person could be

expected to endure it.

Lyman v. Huber, 2010 ME 139 ,r 16, 10 A.3d 707.

On the facts as alleged in the revised amended complaint, it may be very unlikely

that York will be able to prove the necessary elements of an IIED claim. Nevertheless, the

court cannot conclude from the pleadings that it appears beyond doubt that York will not

be able to prove the facts necessary for this claim. An IIED claim may be based on

recklessness - if the defendant knows or should know that its conduct creates an

unreasonable risk of harm to another person and the unreasonableness of defendant's

conduct exceeds negligence. Curtis v. Porter, 2001 ME 158 ,r 13, 784 A.2d 18. In this case it

is theoretically possible from the allegations in the revised amended complaint that C.N.

Brown's conduct was not only reckless but was so extreme and outrageous as to allow York

to proceed on an IIED claim.

C.N. Brown's motion to dismiss is denied as to count three of the revised amended

complaint.

3 4. Negligent Infliction of Emotional Distress

The court does not understand why York is asserting a free-standing negligent

infliction of emotional distress (NIED) claim when recovery will be available for emotional

distress and mental anguish based on Sherri York's physical injuries if York prevails on the

negligence claim. See Curtis v. Porter, 2001 ME 158 ,r 19.

In any event, the revised amended complaint does not set forth a cognizable NIED

claim because (1) it does not allege that Sherri York was a bystander and (2) the

proprietor-patron relatio.nship is not the kind of "special relationship" required to proceed

on a NIED claim. See Curtis v. Porter, 2001 ME 158 ,r 19 (NIED recovery limited to

bystander liability claims and cases where special relationship existed between victim and

tortfeasor). If the relationship between a church and its parishioners does not constitute a

special relationship for purposes of NIED absent specific facts showing a prolonged,

extensive, and dependent involvement, see Bryan R. v. Watchtower Bible and Tract Society

Inc., 1999 ME 144 ,r,r 31-32, 738 A.2d 839; Fortin v. Roman Catholic Bishop, 2005 ME 57 ,r

34,871 A.2d 1208 (altar boy), the relationship between a convenience store and its patrons

falls far short of qualifying as a special relationship for purposes of NIED.

5. Assault and Battery - Failure to Supervise and Control Eric Gwaro

York seeks to hold C.N. Brown liable for assault and battery based on the allegation

that C.N. Brown failed to supervise and control Gwaro, who was on C.N. Brown's property.

Revised amended complaint ,r 42. However, the revised amended complaint makes no

allegation that Gwaro was employed by C.N. Brown or offer any other theory from which it

could be argued that C.N. Brown had any duty to supervise or control Gwaro. The court is

aware of no authority - and York has offered none - for the proposition that a business

open to the public has a duty to supervise and control members of the public who may

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