610 A.2d 279 (Me. 1992), Cameron v. Pepin

Citation:610 A.2d 279
Opinion Judge:ROBERTS,
Party Name:Constance L. CAMERON, et al. v. Eugene R. PEPIN.
Attorney:Paul F. Macri (orally), Berman & Simmons, Lewiston, for plaintiffs. Robert B. Hoy (orally), Platz & Thompson, Lewiston, for defendant. Gerald F. Petrucelli, James B. Haddow, Petrucelli & Martin, and Christopher C. Taintor, Norman, Hanson & Detroy, Portland, for amicus curiae, Maine Medical Center.
Case Date:July 17, 1992
Court:Supreme Judicial Court of Maine

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610 A.2d 279 (Me. 1992)

Constance L. CAMERON, et al.


Eugene R. PEPIN.

Supreme Judicial Court of Maine.

July 17, 1992

Argued Jan. 24, 1992.

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Paul F. Macri (orally), Berman & Simmons, Lewiston, for plaintiffs.

Robert B. Hoy (orally), Platz & Thompson, Lewiston, for defendant.

Gerald F. Petrucelli, James B. Haddow, Petrucelli & Martin, and Christopher C. Taintor, Norman, Hanson & Detroy, Portland, for amicus curiae, Maine Medical Center.


ROBERTS, Justice.

Defendant Eugene R. Pepin appeals a judgment entered in favor of the plaintiffs in the Superior Court (Androscoggin County, Alexander, J.) after a jury-waived trial. Pepin argues that the court erred in finding him liable for the plaintiffs' claim of negligent infliction of emotional distress (NIED). 1 We agree and vacate the judgment.

In June 1988 Pepin was involved in an automobile accident in Auburn with the plaintiffs' 26-year-old son, Scott W. Cameron. The plaintiffs were notified of the accident shortly after it occurred and arrived at the Central Maine Medical Center emergency room, to see Scott cut, bloody, and battered. The treating physician told the Camerons that Scott had two broken legs, two broken arms, broken ribs, and a severe brain injury, and that he would probably not survive. After six hours of surgery Scott went to the intensive care unit. From that time on, with only brief breaks, the Camerons stayed with their son until he died, six days later.

The plaintiffs instituted this suit in December 1988, seeking damages for severe emotional distress. At the conclusion of the trial on May 28, 1991, the court ordered judgment in the amount of $125,000 to each of the plaintiffs for the emotional distress they suffered and an additional $5,000 to the plaintiffs for their economic loss. This appeal followed.

The essential issue in this case is whether a person, not at the scene when an accident occurs but who subsequently witnesses the accident victim's pain and suffering, can recover for severe emotional distress against the defendant who negligently caused the accident. We have previously recognized that the victim of negligent conduct has a legally protected interest in his psychic health, with different rules governing recovery depending on whether the plaintiff is characterized as a

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"direct" victim rather than an "indirect" victim. See, e.g., Gammon v. Osteopathic Hosp. of Maine, Inc., 534 A.2d 1282 (Me.1987); Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433 (Me.1982). Resolution of this appeal requires that we analyze, for the first time since Culbert, the distinction between direct and indirect victims and determine the scope of the legal duty a defendant owes to an indirect victim.

In jurisdictions recognizing NIED claims, the courts have limited the scope of liability through the application of three basic themes: the impact rule, the zone-of-danger rule, and the foreseeability test. See id. at 434. We previously have applied the foreseeability test to the situation involving both a direct victim, Gammon, and an indirect victim, Culbert. Although analysis in both cases centered on the analytical concept of foreseeability, each decision rested on a distinct and fundamentally different rationale.

In Culbert we vacated the dismissal of a complaint setting forth an NIED claim arising from a mother's observation of her baby choking on a foreign object in baby food manufactured by the defendant. Rejecting both the impact rule and the zone-of-danger rule, we adopted the foreseeability test enunciated in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), and held that a plaintiff's psychic injury would be deemed foreseeable, and thus compensable, when the plaintiff i) was present at the scene of the accident, ii) suffered serious mental distress as a result of observing the accident, and iii) was closely related to the victim. Culbert, 444 A.2d at 438. We recognized at that time the different and problematic issues raised in negligence analysis involving indirect victims, but nonetheless expressed confidence that the traditional foreseeability concept, as expressed in Dillon's three-factor test, would rationally circumscribe the parameters of liability. Id. at 436-47.

Five years after Culbert, we addressed in Gammon the NIED claim of a direct victim. There, in vacating a directed verdict for the defendant, we rejected as "arbitrary" the requirement that a NIED claim must be based on an independent underlying tort and held that proof of negligently inflicted emotional distress itself was sufficient. Gammon, 534 A.2d at 1285. Rather than precluding such claims through employment of any artificial devices, 2 we held that the particular claim could be premised on, and limited by, the "traditional tort principle of foreseeability" as expressed in Culbert. Id.

Although broadly stated, Gammon's adherence to a foreseeability principle necessarily differed from the principle applied in Culbert, because Gammon involved no examination of the three Dillon factors that Culbert explicitly analyzed. Nonetheless, despite the necessarily distinct analyses in these cases, the Camerons argue that Gammon substantially changed Culbert's rationale, removing the need to take a plaintiff's status into account when determining the scope of the duty a defendant owes to potential indirect victims. They contend that, under Gammon, whether a defendant owes a duty to a plaintiff is strictly a question of fact, dependent solely on the factfinder's determination whether the injury was a reasonably foreseeable consequence of the defendant's negligence. They argue that any court-imposed limitation on the scope of a defendant's duty would be an arbitrary and artificial device contrary to Gammon's principle. We disagree.

The designation of harm as "foreseeable" gives rise to some confusion in negligence analyses because the question of foreseeability informs both the issue of duty and the issue of proximate cause. Compare Brewer v. Roosevelt Motor Lodge, 295 A.2d 647, 651 (Me.1972) (foreseeability of injury is the test of duty) with Brewer, 295 A.2d at 652 (foreseeability of injury is the foundational basis of proximate

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cause). The California Supreme Court recently noted the ambiguous nature of the term, observing that:

Because a general duty exists to avoid causing foreseeable injury to another, the concept of "foreseeability" enters into both the willingness of the court to recognize the existence of a duty ... and into the determination by a trier of fact whether the specific injury in issue was foreseeable.

[A] court's task--in determining "duty"--is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.

The jury, by contrast, considers "foreseeability" in two more focused, fact-specific settings. First, the jury may consider the likelihood or foreseeability of injury in determining whether, in fact, the particular defendant's conduct was negligent in the first place. Second, foreseeability may be relevant to the jury's determination of whether the defendant's negligence was a proximate or legal...

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