784 A.2d 18 (Me. 2001), Ken-00-571, Curtis v. Porter

Docket Nº:No. Ken-00-571.
Citation:784 A.2d 18, 2001 ME 158
Opinion Judge:RUDMAN, J.
Party Name:Barbara CURTIS v. Lisa Gagne PORTER.
Attorney:Karen E. Boston (orally), Sumner H. Lipman, Lipman & Katz, P.A., Augusta, for plaintiff., Peter T. Marchesi (orally), Wheeler & Arey, P.A., Waterville, for defendant, Lisa Gagne-Porter., Jed David, Jim Mitchell and Jed Davis, P.A., Augusta, for defendant, Ryan Fifield., Allen Porter, South Windha...
Judge Panel:CLIFFORD, J., with whom RUDMAN, J. joins, dissenting.
Case Date:November 15, 2001
Court:Supreme Judicial Court of Maine

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784 A.2d 18 (Me. 2001)

2001 ME 158

Barbara CURTIS


Lisa Gagne PORTER.

No. Ken-00-571.

Supreme Judicial Court of Maine.

November 15, 2001.

Argued: April 11, 2001.

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[Copyrighted Material Omitted]

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Karen E. Boston (orally), Sumner H. Lipman, Lipman & Katz, P.A., Augusta, for plaintiff.

Peter T. Marchesi (orally), Wheeler & Arey, P.A., Waterville, for defendant, Lisa Gagne-Porter.

Jed David, Jim Mitchell and Jed Davis, P.A., Augusta, for defendant, Ryan Fifield.

Allen Porter, South Windham, defendant pro se.



[¶ 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.


[¶ 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

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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.


[¶ 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

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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.


[¶ 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

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(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...

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