Bourgeois v. Great Northern Nekoosa
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MAINE SUPREME JUDICIAL COURT 					Reporter of Decisions
Decision:	1999 ME 10
Docket:	Ken-98-62
Argued:	December 2, 1998
Decided:	January 13, 1999

Panel: WATHEN, C.J. and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
	CALKINS, JJ.

RICHARD BOURGEOIS

v.

GREAT NORTHERN NEKOOSA CORPORATION 

and 

COLWELL CONSTRUCTION COMPANY, INC. 

ALEXANDER, J.
 
	[¶1] Plaintiff Richard Bourgeois appeals from a summary judgment
entered in the Superior Court (Kennebec County, Marden, J.) in favor of
defendants, Great Northern Nekoosa Corporation (Great Northern) and Colwell
Construction Company (Colwell).  Bourgeois brought an action for negligent
infliction of emotional distress, and the court ruled that the defendants had no
legal duty to protect him.  Bourgeois asks us to overturn our decision in
Michaud v. Great Northern Nekoosa Corp., 1998 ME 213, 715 A.2d 955, and
find that the defendants owed him a duty of care as a rescuer.  Alternatively,
Bourgeois attempts to distinguish this case from Michaud on the grounds that 
the defendants owed him a duty of care as an invitee on the property.  We
affirm the judgment.
	[¶2] This litigation arises out of the same incident that gave rise to
Michaud, thus, except for the following, the facts of the two cases are identical. 
Michaud, 1998 ME 213, ¶¶ 2-13, 715 A.2d at 957-58.  Michaud was the
rescuer who dove to rescue the divers trapped in holes cut into the Ripogenus
Dam.  Bourgeois supervised the attempted rescue from the surface.  He
ordered Michaud to dive and assess the situation.  When Michaud reported on
the condition of the trapped divers, Bourgeois instructed him on steps to take
to attempt rescue or recovery.
	[¶3] Bourgeois filed the present complaint for negligent infliction of
emotional distress, alleging that Great Northern and Colwell each owed him a
duty of care to protect him from psychic injury.  He claimed no physical injury. 
Both defendants filed motions for summary judgment.  In granting the
motions, the court concluded as a matter of law that Bourgeois was not within
the protected class of indirect victims, and the defendants did not owe
Bourgeois an independent duty of care as a rescuer or as an invitee.  Bourgeois
now appeals from that decision.
Discussion
	[¶4]	Bourgeois urges us to overturn our decision in Michaud v. Great
Northern Nekoosa Corp., 1998 ME 213, 715 A.2d 955, and recognize the
"rescue doctrine" pursuant to which a rescuer may recover for negligent
infliction of emotional distress.  As discussed above, the litigation in Michaud
arose out of the same incident as this case.  Like Bourgeois, Michaud sued
Great Northern and Colwell for negligent infliction of emotional distress,
arguing that they owed him, as a rescuer, a duty of care to protect him from
psychic injury.  We affirmed summary judgment for the defendants, ruling:

We have never adopted the rescue doctrine . . . . Were we to adopt
it, this would not end any analysis in the present case.  Even if the
rescue doctrine gives rise to an independent duty of care owed to
the rescuer and emotional distress is a foreseeable result of the
defendants' negligence, "policy considerations may dictate a cause
of action should not be sanctioned no matter how foreseeable the
risk."  Cameron v. Pepin, 610 A.2d 279, 282 (Me. 1992).  In claims
for the negligent infliction of emotional distress, we must avoid
inappropriately shifting the risk of loss and assigning liability
disproportionate to culpability.  We do not minimize the heroic and
selfless acts of a rescuer, but such a person is not a "direct victim"
pursuant to Maine law.  To create a special exception for a rescuer
in the context of a claim for emotional distress would expand
liability out of proportion with culpability.  See Cameron v. Pepin,
610 A.2d 279, 282 (Me. 1992).

Michaud, 1998 ME 213, ¶ 20, 715 A.2d at 960.  
	[¶5] Stare decisis embodies the important social policy of continuity in
the law by providing for consistency and uniformity of decisions.  See Shaw v.
Jendzejec, 1998 ME 208, ¶¶ 8-9, 717 A.2d 367, 370; Adams v. Buffalo Forge
Co., 443 A.2d 932, 935 (Me. 1982).  Pursuant to that doctrine, 

a deliberate or solemn decision of a court, after argument on a
question of law fairly arising in the case, the disposition of which is
necessary to the determination of the case, is an authority or
binding precedent in the same court and in other courts of equal
or lower rank, in subsequent cases where the very point is again in
controversy.

Myrick v. James, 444 A.2d 987, 997-98 (Me. 1982).  We do not disturb a
settled point of law unless "the prevailing precedent lacks vitality and the
capacity to serve the interests of justice...."   Id. at 1000.  
	[¶6] Although Bourgeois disagrees with our conclusion in Michaud, that
decision was the product of deliberate and solemn analysis.  In deciding
whether to recognize the rescue doctrine in a case involving purely psychic
injuries, we carefully considered valid precedent and weighed the competing
policy issues raised by the parties.  See Michaud, 1998 ME 213, ¶¶ 15-20, 715
A.2d at 958-60.  Bourgeois does not present anything new indicating that
Michaud should be overruled.  
	[¶7] Bourgeois also attempts to distinguish this case from Michaud.  He
argues that Great Northern and Colwell had a duty to protect him from psychic
injury because he was an invitee.  According to Bourgeois, the chaos he found
upon arriving at the accident scene and the horrifying nature of the accident
created a dangerous condition which constituted a breach of the duty to keep
the land in safe condition.  
	[¶8]  This case cannot be distinguished from Michaud.  Bourgeois's
status as an invitee is inseparable from his status as a rescuer.  Consequently,
he, like Michaud, does not qualify as a direct victim of the alleged negligence. 
Michaud, 1998 ME 213, ¶ 17, 955 A.2d at 959.  In  Michaud, we stated that 
"[the] defendants' alleged negligence was directed at the two divers trapped in
the maintenance gate.  Michaud was not the object of this alleged negligent
conduct."  Michaud, 1998 ME 213, ¶ 17, 955 A.2d at 959 (citations omitted). 
This reasoning also applies to Bourgeois.  
	The entry is
			Judgment affirmed.
Attorneys for plaintiff:

Paul F. Macri, Esq., (orally)
William D. Robitzek, Esq.
Berman & Simmons, P.A.
P O Box 961
Lewiston, ME 04243-0961

Attorneys for defendants:

Elizabeth A. Olivier, Esq., (orally)
Bruce C. Gerrity, Esq.
Preti, Flaherty, Beliveau & Pachios, LLC
P O Box 9546
Portland, ME 04112-9546
(for Colwell Construction Co.)

Terry A. Fralich, Esq., (orally)
Peter J. DeTroy, Esq.
Norman, Hanson & DeTroy, LLC
P O Box 4600
Portland, ME 04112-4600
(for Great Northern Nekoosa Corp.)