Curtis v. Porter
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 158
Docket:	Ken-00-571
Argued:	April 11, 2001
Decided:	November 15, 2001

Panel:WATHEN, C.J.,{1} and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.
Majority:	DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.
Dissenting:	CLIFFORD and RUDMAN, JJ.

BARBARA CURTIS

v.

LISA GAGNE PORTER

SAUFLEY, J.

	[¶1]  Barbara Curtis appeals from the judgment of the Superior Court
(Kennebec County, Atwood, J.) granting Lisa Gagne's{1} amended motion for
summary judgment on Curtis's claims for intentional infliction of emotional
distress and negligent infliction of emotional distress.  Curtis contends that
the Superior Court erred in determining that Gagne was entitled to the
judgment.  We affirm the judgment in part and vacate in part.

I.  BACKGROUND

	[¶2]  Barbara Curtis is employed as a pizza delivery agent for
Domino's Pizza.  During one late-night delivery, she was lured to an empty
house where she was assaulted and robbed.  Curtis suffered serious injury to
her face as a result of the assault.  Alan Porter, then twenty-one, and Ryan
Fifield, a juvenile, were later arrested for attacking and robbing Curtis. 
Porter ultimately pled guilty to aggravated assault and robbery and was
incarcerated.{2}  Fifield, who also participated in the theft but did not assault
Curtis, was prosecuted in a juvenile proceeding and placed on probation. 
Curtis filed a civil suit against Porter, Fifield, and Lisa Gagne, a friend of
Porter and Fifield, who had been with them before the robbery occurred.  It
is the liability of Gagne that is at issue here.
	[¶3]  The nature of Gagne's involvement in the robbery, if any, is
disputed by the parties.  Because this matter is before us as the result of the
entry of a summary judgment, we consider only the facts recited and
properly supported in the parties' statements of material facts.  In the early
evening hours of a summer night in 1995, Gagne, Porter, and Fifield began
drinking malt liquor and beer at Gagne's house.  By midnight, they were
drunk and hungry.  Porter called Domino's from Gagne's kitchen phone and
ordered a pizza to be delivered to a different address, 15 Kendall Street in
Augusta.  The Kendall Street house, formerly owned by Gagne's
grandmother, was vacant at the time.{3}  When asked what she wanted on her
pizza, Gagne asked for bacon.  Gagne knew that Porter had no money when
he ordered the pizza.  Porter and Fifield left Gagne's house about twenty
minutes after ordering the pizza.  On their way out, Gagne told them, "Don't
get caught."{4}  She did not go with them.  She did not know Curtis, nor did
she know that Curtis would deliver the pizza. 
	[¶4]  Shortly thereafter, Curtis arrived at 15 Kendall Street to
deliver the pizza.  She rang the doorbell, but no one answered.  Porter and
Fifield then emerged from behind the house and said that they had ordered
the pizza.  When Curtis looked down to check the price on the pizza box,
Porter hit her in the face and knocked her down.  She heard shuffling and
heard Porter run away as she lay on the ground bleeding and afraid to get up. 
Porter and Fifield ran back to Gagne's house with the stolen pizza and told
Gagne to shut off the lights in the house.  Gagne told Porter to throw the
pizza boxes into the river, which he did.  Later, Gagne lied to the police
about several aspects of the events, asserting that Porter had nothing to do
with this incident, that the incident never happened, that Porter was at
home with her all night, that Porter would not do something like that, and
that they did not order pizza. 
	[¶5]  Three years later, Curtis filed her complaint against Gagne,
Porter, and Fifield alleging assault, battery, robbery, and intentional
infliction of emotional distress.  Because the applicable statute of limitations
bars recovery more than two years after an assault or battery, 14 M.R.S.A.
§ 753 (Supp. 2000), and because Maine does not recognize a separate civil
action for robbery, Curtis filed an amended complaint abandoning these
three claims.  In the amended complaint, Curtis asserted claims for both
negligent and intentional infliction of emotional distress,{5} and sought
recovery for the emotional, but not the physical, harm she suffered during
the assault.{6}  The Superior Court entered a final judgment in favor of Gagne
on Gagne's motion for summary judgment pursuant to M.R. Civ. P. 54(b)(1). 
This appeal followed.

II.  DISCUSSION

	[¶6]  We review motions for summary judgment for errors of law,
viewing the evidence in the light most favorable to the nonprevailing party-
in this case, Curtis-to determine whether the record supports the
conclusion that there is no genuine issue of material fact and that the
prevailing party is entitled to a judgment as a matter of law.  Champagne v.
Mid-Maine Med. Ctr., 1998 ME 87, ¶ 5, 711 A.2d 842, 844; Gayer v. Bath
Iron Works Corp., 687 A.2d 617, 620 (Me. 1996).  
	[¶7]  Summary judgment is no longer an extreme remedy.{7}  It is
simply a procedural device for obtaining judicial resolution of those matters
that may be decided without fact-finding.  Summary judgment is properly
granted if the facts are not in dispute or, if the defendant has moved for
summary judgment, the evidence favoring the plaintiff is insufficient to
support a verdict for the plaintiff as a matter of law.  Bouchard v. Am.
Orthodontics, 661 A.2d 1143, 1144-45 (Me. 1995).  The summary judgment
process, however, is not a substitute for trial.  If material facts are disputed,
the dispute must be resolved through fact-finding, even though the
nonmoving party's likelihood of success is small.  Niehoff v. Shankman &
Assocs. Legal Ctr., P.A., 2000 ME 214, ¶ 10, 763 A.2d 121, 124-25.
	[¶8]  When, as here, a defendant moves for summary judgment, the
plaintiff "must establish a prima facie case for each element of her cause of
action" that is properly challenged in the defendant's motion.  Champagne,
1998 ME 87, ¶ 9, 711 A.2d at 845.  Appellate review of the entry of a
summary judgment requires the same analysis as that undertaken by the
trial court.  We first determine the elements of the causes of action at issue
and then review the facts set forth in the parties' statements of material
facts that are supported by appropriate record references.{8}  Gerrity Co., Inc.
v. Lake Arrowhead Corp., 609 A.2d 293, 295 (Me. 1992).  Uncontroverted
facts are accepted as true for the purpose of testing the propriety of a
summary judgment.  Champagne, 1998 ME 87, ¶ 5, 711 A.2d at 844.   
	[¶9]  In addition to the specific facts set forth by the parties, we will
consider any reasonable inferences that a fact-finder could draw from the
given facts.  Hughes v. Beta Upsilon Bldg. Ass'n, 619 A.2d 525, 526 (Me.
1993).  Although we will not speculate, we accord the nonmoving party "the
full benefit of all favorable inferences that may be drawn" from the facts
presented.  Id.  When facts or reasonable inferences are in dispute on a
material point, summary judgment may not be entered.  The parties here
offer little dispute regarding the facts, but do dispute what reasonable
inferences can be drawn from those facts in support of the elements of
Curtis's claims.  

III.  INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

	[¶10]  To withstand a defendant's motion for summary judgment on
a claim of intentional infliction of emotional distress, a plaintiff must present
facts in support of each of the following four elements:

(1) the defendant intentionally or recklessly inflicted severe
emotional distress or was certain or substantially certain that
such distress would result from her 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 plaintiff's
emotional distress; and 

(4) the emotional distress suffered by the plaintiff was "so
severe that no reasonable [person] could be expected to
endure it."

Champagne, 1998 ME 87, ¶ 15, 711 A.2d at 847 (quoting Loe v. Town of
Thomaston, 600 A.2d 1090, 1093 (Me. 1991)).{9} 
	[¶11]  Gagne does not dispute that Curtis suffered severe emotional
distress as a result of the incident and that no reasonable person could be
expected to endure such distress.  Rather, she argues, and the court agreed,
that Curtis has failed to establish a prima facie case regarding the first three
elements of IIED.  Primarily, she contends that her limited role, if any, in
the assault and robbery could not have caused Curtis's emotional distress,
that her conduct was not outrageous, and that it does not rise to the level of
intentional or reckless behavior.
	[¶12]  In the context of a tort claim, a person acts "intentionally" if
he subjectively wants or subjectively foresees that harm to another will
almost certainly result from his actions.  Maine Mut. Fire Ins. Co. v. Gervais,
1998 ME 197, ¶ 11, 715 A.2d 938, 941.  We agree with the Superior Court
that Curtis has presented no evidence from which a jury could find, even
upon reasonable inferences, that Gagne subjectively wanted or foresaw the
assault on Curtis.  Indeed, the record reflects that even Fifield was surprised
by Porter's vicious attack on Curtis. 
	[¶13]  The same is not true, however, for the recklessness
component of the claim.  A person acts recklessly if she knows or should
know that her conduct creates an unreasonable risk of harm to another
person and the unreasonableness of her actions exceeds negligence.{10} 
Restatement (Second) of Torts § 500 (1965).  Although the Superior Court
correctly concluded that Gagne had no separate duty to take action to
protect Porter from harm created by others,{11} Gagne may be responsible for
her own affirmative conduct in planning and supporting the robbery.  A
person involved in planning a nighttime theft from a delivery person knows
or should know that the theft may result in serious emotional harm to that
delivery person.  
	[¶14]  The issue then becomes whether Curtis has generated a
material fact in support of her claim that Gagne took part in planning the
robbery.  The Superior Court concluded that a fact-finder would have to
engage in pure speculation to determine whether Gagne was actually
involved in the planning.  Curtis concedes the paucity of facts directly
demonstrating Gagne's involvement, but argues that the facts would support
a reasonable inference that Gagne knowingly participated in the plan for the
robbery, thereby intentionally or recklessly causing emotional harm to
Curtis.  The facts offered by Curtis on this issue include the following: Gagne
knew that Porter and Fifield were planning to obtain a pizza and said she
wanted bacon on the pizza, Gagne was aware that Porter had no money,
Gagne knew that Porter and Fifield were planning to obtain the pizza by
illegal means, the phone call that lured Curtis to the vacant residence was
made from Gagne's residence at a time when she was present in the house,
the vacant house to which the men lured Curtis belonged to Gagne or her
grandmother, Gagne urged them not to get caught, and Gagne later lied to
the police about her knowledge of the assault and robbery.
	[¶15]  We conclude that the facts presented are sufficient to allow a
jury to infer that Gagne was an active participant in the robbery.{12}  Although
a jury could decide otherwise after hearing all of the facts, it is also possible
for the fact-finder to infer that Gagne provided the means to set up the
robbery by allowing the men to use her phone, and that she provided a place
for the robbery to occur by providing the use of her grandmother's vacant
residence as the delivery address.{13}  From these inferences, a jury could
conclude that Gagne actively participated in planning and setting up the
robbery, that she knew or should have known that her conduct could cause
severe emotional distress to the delivery person, and that Curtis suffered
emotional harm as a result of Gagne's actions.  In addition, we cannot say as
a matter of law that participation in planning a nighttime robbery is not
extreme and outrageous conduct that would be regarded as atrocious and
utterly intolerable.
	[¶16]  Thus, on the facts presented, Curtis has made out a prima
facie case for each element of her claim:

(1) by planning and setting up the theft, Gagne recklessly
inflicted severe emotional distress; 

(2) the conduct of setting up a nighttime robbery of a
delivery person is so "extreme and outrageous as to exceed
all possible bounds of decency and must be regarded as
atrocious, and utterly intolerable in a civilized community"; 

(3) Gagne's actions in setting up the theft were a cause of
Curtis's emotional distress; and 

(4) the emotional distress suffered by Curtis was so severe
that no reasonable person could be expected to endure it.

See Champagne, 1998 ME 87, ¶ 15, 711 A.2d at 847.  Even though a fact-
finder could conclude that these inferences and conclusions are not borne
out when the evidence is presented at trial, the material facts are sufficient
that summary judgment may not be granted on Curtis's claim for intentional
infliction of emotional distress.

IV.  NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

	[¶17]  Contrary to Curtis's argument, however, the conclusion that
Gagne may have engaged in the intentional infliction of emotional distress
does not lead to the conclusion that a claim for negligent infliction must also
lie.  The titles of the two emotional distress torts can be misleading.  They
are not distinguished merely by the level of intentionality extant in the
conduct at issue.  Although any person may be liable for the infliction of
severe emotional distress if the conduct causing the harm is sufficiently
outrageous and is intentional or reckless, the universe of those who may be
liable in tort for the negligent infliction of emotional distress is much more
limited.{14}  
	[¶18]  Part of the confusion regarding claims of negligent infliction
arises from the fact that the elements of a claim of negligent infliction of
emotional distress are similar to most negligence torts: a plaintiff must set
forth facts from which it could be concluded that (1) the defendant owed a
duty to the plaintiff; (2) the defendant breached that duty; (3) the plaintiff
was harmed; and (4) the breach caused the plaintiff's harm.  Devine v. Roche
Biomed. Labs., Inc., 637 A.2d 441, 447 (Me. 1994).  Plaintiffs claiming
negligent infliction, however, face a significant hurdle in establishing the
requisite duty, in great part because the determination of duty in these
circumstances is not generated by traditional concepts of foreseeability.{15} 
Although each person has a duty to act reasonably to avoid causing physical
harm to others, there is no analogous general duty to avoid negligently
causing emotional harm to others.  See Bryan R., 1999 ME 144, ¶ 30, 738
A.2d at 848; Devine, 637 A.2d at 447; see also Michaud v. Great N. Nekoosa
Corp., 1998 ME 213, ¶ 20, 715 A.2d 955, 960 (declining to expand NIED
recovery to rescuers).  
	[¶19]  Nevertheless, we have recognized a duty to act reasonably to
avoid emotional harm to others in very limited circumstances: first, in
claims commonly referred to as bystander liability actions;{16} and second, in
circumstances in which a special relationship exists between the actor and
the person emotionally harmed.{17}  We have also held that a claim for
negligent infliction of emotional distress may lie when the wrongdoer has
committed another tort.  However, as we have recently held, when the
separate tort at issue allows a plaintiff to recover for emotional suffering, the
claim for negligent infliction of emotional distress is usually subsumed in any
award entered on the separate tort.  Rippett v. Bemis, 672 A.2d 82, 87-88
(Me. 1996).  We have long allowed recovery for "mental anguish and loss of
enjoyment of life" in most tort actions.  See, e.g., Kopenga v. Davric Me.
Corp., 1999 ME 65, ¶ 18, 727 A.2d 906, 910.  Although the words may be
different, the recovery is for the same harm-the harm to the emotional
health of the plaintiff.  On the other hand, when there can be no recovery for
emotional harm caused by the separate tort, as is the case in a few limited
instances, such as negligent misrepresentation claims, a plaintiff may not
circumvent that restriction by alleging negligent infliction in addition to the
separate tort.  Veilleux v. Nat'l Broad. Co., 206 F.3d 92, 130 (1st Cir. 2000).  
	[¶20]  Moreover, a negligent infliction claim requires proof of severe
emotional distress, an element of damages that is not ordinarily required
when the separate tort (except intentional infliction of emotional distress)
provides for recovery for emotional damages.  Therefore, although negligent
infliction claims are now routinely added to complaints stating a cause of
action in tort, this practice is rarely necessary unless the claim is made by a
bystander or against one with a special relationship to the plaintiff.  
	[¶21]  Here, Curtis has not demonstrated the existence of a duty
sufficient to make out a claim of negligent infliction of emotional distress. 
First, although Curtis originally asserted the existence of a special
relationship between herself and Gagne, she no longer presses the claim
that a special relationship exists between a customer and a pizza delivery
person.{18}  Second, Curtis makes no claim for liability based on her status as
a bystander.
	[¶22]  And finally, the creation of the danger, that is, the separate
tortious conduct, is set forth in her claim for intentional infliction of
emotional distress.  See supra note 11.  Curtis may recover her emotional
distress damages through that claim.  She cannot, however, in the absence
of a special relationship or a claim of bystander liability, press her claim to
recover for her emotional distress if she does not prevail on the separate
intentional infliction claim.  Thus, her negligent infliction claim is subsumed
in the intentional infliction claim, and the court appropriately granted
summary judgment on that claim. 

V.  AGENCY

	[¶23]  Finally, Curtis asserts that, because Fifield and Porter were
acting as Gagne's agents, Gagne is responsible for their actions. We agree
with the Superior Court that Curtis has offered no evidence from which a
fact-finder could conclude that a principal-agent relationship existed
between Gagne and Porter.{19}  Thus, Curtis failed to present a claim of
agency sufficient for trial.

	The entry is:
Judgment vacated on Curtis's claim of
intentional infliction of emotional distress. 
Judgment affirmed on her claim of negligent
infliction of emotional distress, agency, and
her request for punitive damages.

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