Webb v. Haas
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 74
Docket:	Ken-97-769
Argued:	October 5, 1998	
Decided:	May 13, 1999

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

KENNETH E. WEBB et al.

v.

JEFFREY HAAS

DANA, J.

	[¶1]  Jeffrey Haas appeals from an order entered in the Superior Court
(Kennebec County, Alexander, J.) denying his motion for a summary
judgment on the state and federal claims of Kenneth E. and Virginia M.
Webb.  On appeal, Haas (1) contends that he is shielded by qualified
immunity from suit pursuant to 42 U.S.C. § 1983 and (2) challenges the
merits of the Webbs' state law claims.  We conclude that Haas is shielded by
qualified immunity from suit pursuant to federal law and that the causal link
between Haas's misconduct and the Webbs' injuries is too tenuous to survive
a summary judgment motion.{1}
	[¶2]  This case comes before us for the second time.  See Webb v.
Haas, 665 A.2d 1005 (Me. 1995).  A complete discussion of the facts appears
in our prior decision.  We will, therefore, limit the presentation of facts to
those necessary to place the issues in context.  The Webbs' claims arise out
of the abduction and murder of their daughter, Pamela Webb.  On
July 1, 1989, Pamela was abducted when her truck broke down on the
Maine Turnpike.  Although New Hampshire authorities found Pamela's body
a few weeks later, the identity of the perpetrator remains unknown to this
day.
	[¶3]  In 1992, the state police contacted the Webbs to tell them that
the Kennebec Journal was about to publish an article that detailed the
misconduct of state trooper Jeffrey Haas during the investigation of Pamela's
murder.  Haas was on patrol the night Pamela was abducted.  He saw her
disabled truck at about 11:30 p.m. on July 1 but did not stop to inspect it
until approximately three hours later.  When it became clear that Pamela had
been abducted, the police asked Haas when he had first seen the truck.  He
responded falsely that he first saw the truck at 2:00 a.m. on July 2.  Haas
persisted with this false account in various forms, including a falsified patrol
check card purporting to have been completed on July 1 at 11:30 p.m.  Only
after Haas became a suspect in the murder investigation, did he confess the
truth.  The internal affairs division investigated Haas's misconduct and
discharged him in November 1989.
	[¶4]  In April 1992, the Webbs filed a notice of claim pursuant to the
Maine Tort Claims Act (MTCA),{2} and in June they filed this action against
Haas, the State of Maine, and the Turnpike Authority.{3}  In 1993, Haas filed a
motion to dismiss, claiming that the Webbs' claims were barred by the
statute of limitations and that discretionary and qualified immunity shielded
him from liability.  The trial court denied the motion, and we affirmed. 
Webb, 665 A.2d at 1008-11.  After the completion of discovery, Haas moved
for a summary judgment, asserting essentially the same arguments he had
advanced in 1993.  In addition, he asked the court to rule on the merits of
the Webbs' state law claims.  The court denied the motion and Haas
appealed.

I.  INTERLOCUTORY APPEAL OF A DENIAL OF A SUMMARY JUDGMENT

	[¶5]  Our final judgment rule generally precludes the immediate
review of the denial of a summary judgment.  Andrews v. Department of
Envtl. Protection, 1998 ME 198, ¶ 4, 716 A.2d 212, 215.  We have
determined, however, that "'the denial of a motion for a summary judgment
based on a claim of immunity is immediately reviewable pursuant to' the
death knell exception to the final judgment rule."  Id. (quoting J.R.M., Inc. v.
City of Portland, 669 A.2d 159, 160 & n.1 (Me. 1995)).  The death knell
exception "permits an appeal from an interlocutory order where substantial
rights of a party will be irreparably lost if review is delayed until final
judgment."  Id. (quoting Cook v. Cook, 574 A.2d 1353, 1354 (Me. 1990)). 
We apply the death knell exception to the denial of a claim of "qualified
immunity because qualified immunity confers more than immunity from
damages; it is intended to provide immunity from suit, since 'even such
pretrial matters as discovery . . . can be peculiarly disruptive of efficient
government.'"  Id. (quoting J.R.M., 669 A.2d at 160).{4}
	[¶6]  Recognizing that the availability of an interlocutory appeal in
cases such as this is well established, the Webbs argue that we should
nonetheless decline to allow this interlocutory appeal because a previous
appeal was taken by the defendants.  While we do not lightly dismiss the
expense and time consumed by multiple appeals, we conclude in this
limited circumstance that the resolution of the previous interlocutory appeal
does not preclude a second such appeal.  We accepted the first appeal from
the denial of the motion to dismiss in order to effectuate the teachings of
Andrews:  when a claim of immunity may be resolved without subjecting the
parties to the discovery process, it must be heard on appeal.
	[¶7]  We determined in the first appeal that the absence of a complete
record compelled the denial of the motion to dismiss.  See M.R. Civ. P.
12(b)(6); McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994) (motion to dismiss
may be granted only where it appears "beyond doubt that a plaintiff is
entitled to no relief under any set of facts that he might prove in support of
his claim").  We recognized, however, the possibility that completion of
discovery could result in a second interlocutory appeal.  Indeed, we noted
that "the Webbs may fail to withstand a subsequent motion for a summary
judgment."  Webb, 665 A.2d at 1010-1011.  Because the reasoning of
Andrews applies as much to the matter before us now as it did when the
matter was presented to us previously, we decline the Webbs' invitation to
adopt a "single appeal" rule.  Therefore, we will review Haas's claim that he
is shielded from liability on the Webbs' section 1983 claims by a qualified
immunity.

II.  FEDERAL QUALIFIED IMMUNITY

	[¶8]  Pursuant to 42 U.S.C. § 1983,{5} the Webbs contend that Haas
violated their constitutional right of access to the courts by attempting to
conceal his misconduct.  Qualified immunity shields government officials
from civil liability under section 1983 "insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known."  Andrews, 1998 ME 198, ¶ 11, 716
A.2d 212, 217 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 
Whether a right was clearly established at the time of the alleged violation is
a question of law.  Id. ¶ 13.
	[¶9]  For a right to be clearly established, "the contours of the right
must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right.  The unlawfulness must be apparent in
light of preexisting law."  Id. ¶ 12 (quoting Parsons v. Wright, 649 A.2d
1108, 1111 (Me. 1994)).  We have cautioned that the violation of a right can
be apparent "even though that action has not previously been held to be
unlawful."  Id.
	[¶10]  The right of access to the courts "is basic to our system of
government, and it is well established today that it is one of the fundamental
rights protected by the Constitution."  Ryland v. Shapiro, 708 F.2d 967, 971
(5th Cir. 1983).  The question, therefore, is whether in 1989 a reasonable
police officer would have understood that Haas's conduct constituted a
violation of the right of access to the courts.  See Andrews, 1998 ME 198,
¶ 13, 716 A.2d 212, 218.  Because the facts of this case are outside the
parameters of the case law existing in 1989, we conclude that qualified
immunity shields Haas from damages pursuant to section 1983.
	[¶11]  By 1989, the federal courts had established that a government
official violated an individual's right of access to the courts when he or she
(1) committed a crime which gave rise to an underlying substantive claim or
knew a colleague that did so; (2) concealed information that was crucial to
the victim obtaining redress in the courts for the damages arising out of the
misconduct; (3) did so in an attempt to frustrate the victim's right to obtain
relief; and (4) succeeded in interfering with the victim's ability to obtain
relief.  See Ryland, 708 F.2d at 971-75; see also Gonsalves v. City of New
Bedford, 939 F. Supp. 921, 929 (D. Mass. 1996).
	[¶12]  Federal courts have principally looked to two cases to
determine whether conduct violated a plaintiff's right of access to the
courts:  Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983) and Bell v. City of
Milwaukee, 746 F.2d 1205 (7th Cir. 1984).  In Ryland, a local prosecutor
murdered his girlfriend and then conspired with two colleagues to prevent a
full investigation into the murder by leading authorities to believe that the
death was a suicide.  708 F.2d at 969.  Eleven months later, the state
Attorney General exposed the coverup and obtained a murder conviction. 
Id.  The family of the victim subsequently sued the murderer and his
colleagues, claiming that they had interfered with their right to pursue a
wrongful death action pursuant to state law.  Id. at 969-70.  The court
concluded that the plaintiffs alleged a valid theory of recovery.  Id. at 973.
	[¶13]  In Bell, a police officer shot an unarmed man in the back while
attempting to apprehend him.  746 F.2d at 1215.  The officer planted a
knife in the dead man's hand and conspired with his colleagues to concoct a
self-defense justification.  Id. at 1215-16.  The conspiracy was not uncovered
until twenty years later, when one of conspirators confessed to the coverup
to the local district attorney.  Id. at 1223.  Although a family member filed a
wrongful death claim soon after the shooting, the court found that the
coverup "rendered hollow" his right to redress pursuant to state and federal
law.  Id. at 1261.
	[¶14]  The Webbs claim that Haas interfered with their state law
actions against both the unknown perpetrator and Haas.  Their claim is not
within the purview of the case law as it stood in 1989.  In Both Bell and
Ryland, the individuals charged with interfering with the plaintiff's right of
access were either individuals who committed a crime that gave rise to the
underlying state or federal claim or were colleagues of someone who did.  In
Bell, the officer shot an unarmed suspect in the back, and in Ryland, the
prosecutor murdered his girlfriend.  See also Gonsalves, 939 F. Supp. at 929
(where one defendant's use of unreasonable force was proximate cause of
decedent's death).
	[¶15]  The underlying misconduct giving rise to the state law actions
against Haas is Haas's failure to stop and investigate Pamela's disabled truck. 
Failing to stop and investigate a disabled truck is not a crime; it is a violation
of state police procedure for which Haas was subject to and received
discipline.  In 1989, a reasonable officer would not have understood that a
coverup of a violation of state police procedure deprived the Webbs of their
right of access to the courts.
	[¶16]  The underlying misconduct giving rise to the wrongful death
action against the unknown perpetrator is the abduction and murder of
Pamela Webb.  An official's constitutional duty not to interfere with an
individual's right of access to the courts "is simply the requirement that
[governmental officials] involved in the investigation of a wrong perpetrated
by a co-employee under color of state law not conceal the perpetration of
that wrong."  Bell, 746 F.2d at 1262 (emphasis added).  There is no
allegation that either Haas or a colleague was involved in the perpetration of
the murder or abduction.  Cf. Gonsalves, 939 F. Supp. at 929 (noting that
each defendant either participated in the underlying misconduct or knew a
colleague that did so).  Nor is there an allegation that Haas attempted to
conceal the identity of the perpetrator.  Therefore, Haas's conduct does not
rise to the level of a constitutional violation as understood or as apparent in
1989.

III.  STATE LAW CLAIMS

	[¶17]  Having addressed Haas's defense of qualified immunity, it is in
the interest of judicial economy to also address the Webbs' state law claims. 
See Ryan v. City of Augusta, 622 A.2d 74, 76-77 (Me. 1993).  Haas contends
that the causal link between his misconduct and the Webbs' alleged injuries
is too tenuous to create a genuine issue of material fact in either of the
Webbs' state law claims.  We agree.
	[¶18]  Pursuant to M.R. Civ. P. 56, we examine the evidence in the
light most favorable to the Webbs "to determine if the trial court committed
an error of law."  H.E.P. Dev. Group, Inc. v. Nelson, 606 A.2d 774, 775 (Me.
1992).  "When the plaintiff has the burden to prove an essential element at
trial . . . and it is clear that the defendant would have been entitled to a
directed verdict at trial if the plaintiff presented nothing more than was
before the court . . . then the defendant is entitled to summary judgment." 
Id.
	[¶19]  The Webbs allege that Haas is liable to them under state law for
(1) the wrongful death of Pamela Webb pursuant to 18-A § 2-804(a) (1998)
and (2) for their severe emotional distress caused by his negligent and
intentional acts.  An essential element of both of these claims is proximate
cause.  See 18-A § 2-804 (wrongful death); Champagne v. Mid-Maine
Medical Ctr., 1998 ME 87, ¶ 10, 711 A.2d 842, 845 (negligent infliction of
emotional distress).
	[¶20]  Proximate cause is "'that cause which, in natural and
continuous sequence, unbroken by an efficient intervening cause, produces
the injury, and without which the result would not have occurred.'"  Searles
v. Trustees of St. Joseph's College, 1997 ME 128, ¶ 8, 695 A.2d 1206, 1209
(quoting Wing v. Morse, 300 A.2d 491, 495 (Me. 1973)).  In light of this
definition, we have stated that a negligent act is the proximate cause of an
injury only if "the actor's conduct is a substantial factor in bringing about the
harm."  Clement v. United States, 980 F.2d 48, 53 (1st Cir. 1992) (quoting
Wing, 300 A.2d at 495-96).  Proximate cause is generally a question of fact
for the jury.  Perron v. Peterson, 593 A.2d 1057, 1058 (Me. 1991). 
However, "[t]he mere possibility of such causation is not enough; and when
the matter remains one of pure speculation or conjecture, or the
probabilities are at best evenly balanced, it becomes the duty of the court to
direct a verdict for the defendant."  Champagne, 1998 ME 87, ¶ 10, 711
A.2d 842, 845 (quoting Restatement (Second) of Torts § 433B cmt. a, at 442
(1965)).
	[¶21]  The negligent acts that the Webbs allege caused their injuries
are Haas's failure to stop and investigate Pamela Webb's truck on the night of
July 1, 1989, and his subsequent lies to the investigating authorities about
that failure.  In determining whether a juror could reasonably infer from the
evidence that Haas's misconduct was the proximate cause of the Webbs'
injuries, we must view the evidence in the light most favorable to the Webbs. 
See H.E.P. Dev. Group, Inc., 606 A.2d at 775.  Haas went on duty at
approximately 11:00 p.m. and entered the turnpike at the Gray exit.  Pamela
Webb's disabled truck was parked in the breakdown lane near Biddeford.  A
witness reported seeing a woman near the truck at 11:20 p.m. At
approximately 11:30 p.m., Haas saw the disabled vehicle but did not stop. 
	[¶22]  There is no evidence that directly links Haas to the abduction
and death of Pamela Webb.  Nor is there sufficient evidence from which a
juror could reasonably infer that Haas's acts and omissions were a substantial
factor in her death.  Although there is some uncertainty in the evidence as
to the time that Haas first observed Pamela Webb's disabled truck, any
conclusion that Haas passed the vehicle when Pamela was present and that
his stopping would have prevented her abduction would be based on pure
speculation.  See Perron, 593 A.2d at 1058 (evidence connecting defendant
hunter to death of plaintiff was insufficient as a matter of law).  The causal
link between Haas's lies and the Webbs' injuries is even more tenuous.  The
lack of evidence that Haas's misconduct was a substantial factor in the
abduction and death of Pamela Webb is fatal to both the action for wrongful
death pursuant to 18-A M.R.S.A. § 2-804(a) and the action for negligent and
intentional infliction of emotional distress.
	The entry is:
Judgment vacated.  Remanded to the Superior
Court for further proceedings consistent with
this opinion.

Attorney for plaintiffs:

David G. Webbert, Esq., (orally)
Johnson & Webbert, LLP
P O Box 29
Augusta, ME 04332-0029

Attorney for defendant:

William R. Fisher, Esq., (orally)
P O Box 6760
Portland, ME 04103-6760

Attorneys for amicus curiae:

Andrew Ketterer, Attorney General
Paul Stern, Dep. Atty. Gen.
6 State House Station
Augusta, ME 04333-0006

FOOTNOTES******************************** {1} . With regard to the state law claims, Haas also contends that the claims are barred by the Maine Tort Claims Act two-year statute of limitations, 14 M.R.S.A. § 8110 (1980), and that he is entitled to discretionary function immunity, 14 M.R.S.A. § 8111(1)(C) (Supp. 1998), and intentional act immunity, 14 M.R.S.A. § 8111(1)(E). Because we conclude that a summary judgment was proper based on the merits of the state law claims, we do not address these arguments. {2} . Title 14 M.R.S.A. § 8107 (Supp. 1998) provides in part: 1. Notice requirements for filing. Within 180 days after any claim or cause of action permitted by this chapter accrues, or at a later time within the limits of section 8110, when a claimant shows good cause why notice could not have reasonably been filed within the 180-day limit, a claimant or a claimant's personal representative or attorney shall file a written notice . . . . {3} . The Webbs' original complaint sought recovery against: Haas for wrongful death, negligent and intentional infliction of severe emotional distress, and violations of the Webbs' state and federal civil rights by failing to stop and investigate, making false statements, and concealing the truth; and both the State and the Turnpike Authority for vicarious liability in the state law claims, negligent hiring, supervision and investigation, vicarious liability in the federal and state civil rights claims, plus violations of the Webbs' civil rights by failing to train and supervise and covering up the investigation. In our previous opinion, we affirmed the trial court's dismissal of the Webbs' claims against the State. Webb, 665 A.2d at 1011-12. We also vacated the trial court's dismissal of the Webbs' claims against the Turnpike Authority. Id. at 1012. The trial court has since granted the Turnpike Authority's motion for a summary judgment. The Webbs have not appealed that decision. {4} . Citing to recent decisions of the United States Supreme Court, the Webbs contend that we should not review the denial of Haas's motion for a summary judgment because it presents a challenge to the sufficiency of the evidence rather than a pure question of law. Although we are not bound by the Supreme Court's interpretation of its own final judgment rule, we have previously found the Court's analysis on this subject to be helpful. Andrews, 1998 ME 198, ¶ 5, 716 A.2d 212, 215. Interpreting two recent Supreme Court decisions, Johnson v. Jones, 515 U.S. 304, 313 (1995); Behrens v. Pelletier, 516 U.S. 299, 312 (1996), the United States Court of Appeals for the First Circuit has articulated guidelines to be used by the federal courts in identifying the fine line separating a denial of a claim of qualified immunity that is not immediately appealable and one that is. See, e.g., Diaz v. Martinez, 112 F.3d 1, 3-4 (1st Cir. 1997); Stella v. Kelley, 63 F.3d 71, 75 (1st Cir. 1995). On one side of the line is a trial court's "pretrial rejection of a qualified immunity defense . . . that . . . turns on either an issue of fact or an issue perceived by the trial court to be an issue of fact." Diaz, 112 F.3d at 3 (quoting Stella, 63 F.3d at 74). Such a decision is not immediately appealable. Id. On the other side is an order "that determines whether certain given facts demonstrate, under clearly established law, a violation of some federally protected right." Id. (quoting Stella, 63 F.3d at 74-75). In the matter before us, the denial of the claim of qualified immunity presents just such a question of law: whether the facts taken in the light most favorable to the plaintiff support a claim that Haas violated clearly established law. See Mitchell v. Forsyth, 472 U.S. 511, 529 n.9 (1985). {5} . Title 42 U.S.C.A. § 1983 (1994) provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.