Coward v. Gagne & Son Concrete Blocks, Inc., 091720 MESC, Ken-19-406

Docket NºKen-19-406
Opinion JudgeHUMPHREY, J.
AttorneyJason Dionne, Esq. (orally), Isaacson & Raymond, PA, Lewiston, for appellants Lisa Coward and Thomas Coward J. William Druary, Jr., Esq., and Gregory M. Patient, Esq. (orally), Marden, Dubord, Bernier & Stevens, PA LLC, Waterville, for appellee Gagne & Sons Concrete Blocks, Inc.
Case DateSeptember 17, 2020
CourtSupreme Judicial Court of Maine

2020 ME 112




No. Ken-19-406

Supreme Court of Maine

September 17, 2020

Argued: June 24, 2020

Jason Dionne, Esq. (orally), Isaacson & Raymond, PA, Lewiston, for appellants Lisa Coward and Thomas Coward

J. William Druary, Jr., Esq., and Gregory M. Patient, Esq. (orally), Marden, Dubord, Bernier & Stevens, PA LLC, Waterville, for appellee Gagne & Sons Concrete Blocks, Inc.



[¶l] In Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433, 436-38 (Me. 1982), we adopted a three-factor test to be applied in bystander, or indirect, claims of negligent infliction of emotional distress (NIED) to determine whether a bystander's serious emotional distress was reasonably foreseeable and, thus, whether a defendant owed a legal duty to the bystander.1 The second of these factors, we later held, requires proof that the bystander "suffered serious mental distress as a result of contemporaneously perceiving the accident." Cameron v. Pepin, 610 A.2d 279, 284-85 (Me. 1992). In this appeal, we consider what constitutes contemporaneous perception of an accident in bystander NIED claims.2

[¶2] Thomas Coward, individually, and his wife, Lisa Coward, appeal from a partial summary judgment entered by the Superior Court (Kennebec County, Stokes, J.) in favor of Gagne & Son Concrete Blocks, Inc., on the Cowards' second amended complaint, which alleged, in part, claims of bystander NIED and loss of consortium.3 The Cowards' claims arose out of an accident at their home involving Thomas's son, Philip Coward, who died after a one-ton load of rebar fell on him while an employee of Gagne & Son was unloading the rebar from a truck using a forklift. The Cowards contend that the trial court erred in entering summary judgment in favor of Gagne & Son, arguing that the court "misapplied]... the contemporaneous perception factor" as articulated in our precedent regarding bystander actions. See Cameron, 610 A.2d at 284-85; Culbert, 444 A.2d at 438. They argue that Thomas contemporaneously perceived the accident involving his son because he heard the accident occur, arrived "seconds later," and witnessed his severely injured son die. We agree that, viewing the facts in the light most favorable to the Cowards, Thomas did "contemporaneously perceive" the accident, and we vacate the judgment.


A. Facts

[¶3] The following facts are drawn from the summary judgment record and are viewed in the light most favorable to the Cowards as the nonprevailing parties. See McCandless v. Ramsey, 2019 ME 111, ¶ 4, 211 A.3d 1157.

[¶4] At the time of the events at issue, Thomas owned a business that installed concrete floors and foundations. He operated the business out of his home in Monmouth and employed his son, Philip, as a foreman. Gagne & Son routinely made deliveries of concrete supplies to the business at Thomas's home in Monmouth.

[¶5] On May 21, 2014, Thomas, Philip, and three other employees were at Thomas's home cleaning up and getting ready to go to a job site. At 10:25 a.m., an employee of Gagne & Son arrived at the site to deliver supplies. The delivery included 150 pieces of twenty-foot-long rebar, which weighed one ton and were being unloaded with a forklift. Although Thomas heard the delivery truck arrive, he was approximately 100 feet away from the delivery area. Thomas did not see the rebar being unloaded.4

[¶6] In the course of the delivery, the rebar fell off the forklift and landed on Philip. Thomas heard a loud bang, followed by screaming, and had the immediate thought that someone had dropped a barrel of oil. He ran to the location where he heard the commotion and arrived "within seconds." Thomas observed Philip lying face down, under the rebar, with blood "coming in and out of his mouth." After the rebar was lifted off of Philip, 5 Thomas rolled Philip onto his back and performed mouth-to-mouth resuscitation for thirty to fifty minutes. Philip never regained consciousness and, by the time EMTs arrived, Philip had died. For three hours after his death, Philip's body remained in the yard, awaiting the arrival of investigators from the Occupational Safety and Health Administration.

[¶7] By January 2015, Thomas had relocated to a camp in Bingham because he could not bring himself to continue living at his home in Monmouth where the accident had occurred. Another woman eventually moved in with Thomas at the camp in Bingham, and Lisa thought that Thomas and the woman were having a romantic relationship. Although Lisa felt physically and emotionally abandoned, she understood that Thomas needed to move out of the Monmouth house because of his emotional pain.

[¶8] After approximately nine months, Thomas attempted to move back to the house in Monmouth, but he could not stay for more than one or two weeks before going back to the camp in Bingham. Thomas eventually moved back to the Monmouth home, but he was still "angry" and threatened suicide several times. In May 2017, Thomas filed for divorce from Lisa.

B. Procedural History

[¶9] The relevant procedural history in this case began on June 5, 2017, when the Cowards filed a second amended complaint.6 Their complaint included a claim for wrongful death filed by Thomas as personal representative of the Estate of Philip Coward, see 18-A M.R.S. § 2-804 (2018);7 the bystander NIED claim filed by Thomas, individually; and the loss of consortium claim filed by Lisa. On October 31, 2017, Gagne & Son moved for partial summary judgment.8

[¶I0] At a hearing held on April 4, 2018, Gagne & Son acknowledged that it was contesting Thomas's bystander NIED claim only on the grounds that Thomas had not contemporaneously perceived the accident involving his son, conceding that Thomas was both present at the scene of the accident and closely related to Philip. The parties also agreed that Lisa's claim for loss of consortium was derivative of Thomas's NIED bystander claim and that, if the court entered summary judgment on the bystander claim, then judgment would also be entered on the loss of consortium claim.9

[¶11] On April 11, 2018, the court entered summary judgment in favor of Gagne & Son on Thomas's bystander NIED claim and Lisa's loss of consortium claim.[10] As to the bystander claim, the court determined that, viewing the evidence in the light most favorable to the Cowards, Thomas "neither saw the accident nor understood what it was when he heard the noise," and therefore concluded that Thomas could not "meet the contemporaneous perception factor" for a bystander NIED claim. The court expressed concern "about expanding the limits of bystander NIED recovery and making a factual determination of how close in time to the accident is 'close enough' to permit recovery." Because the parties had agreed that Lisa's loss of consortium claim was derivative of Thomas's bystander claim, the court also entered summary judgment on her claim without reaching its merits.11 Thomas and Lisa now appeal from the summary judgment entered on Thomas's bystander NIED claim and Lisa's loss of consortium claim. See 14 M.R.S. § 1851 (2020); M.R. App.2B(c)(1).


[¶ 12] The issue we consider in this appeal is whether a bystander contemporaneously perceives an accident when the bystander hears an accident occur and then visually witnesses and becomes aware of the victim's injuries seconds later. The Cowards contend that Culbert and its progeny do not require that Thomas demonstrate that he observed the accident as it occurred, arguing that "contemporaneous involvement in the immediate aftermath of an injury is sufficient to meet the contemporaneous perception factor under Maine law." They argue that, because Thomas heard the accident as it happened and arrived at his son's location within seconds, Thomas contemporaneously perceived the accident. Gagne & Son counters that although Thomas had experienced the "aftermath" of the accident, he "did not realize that Philip was injured when the injury-producing event occurred" and, thus, did not contemporaneously perceive the accident causing his son's death. A. Standard of Review

[¶ 13] "We review a grant of summary judgment de novo and consider both the evidence and any reasonable inferences that the evidence produces in the light most favorable to the party against whom the summary judgment has been granted." Berry v. Mainestream Fin., 2019 ME 27, ¶ 6, 202 A.3d 1195 (quotation marks omitted). "Summary judgment is appropriate only when the parties' statements of material facts and the portions of the record referred to therein disclose no genuine issues of material fact and reveal that one party is entitled to judgment as a matter of law." Id. (quotation marks omitted). "When the material facts are not in dispute, we review de novo the trial court's interpretation and application of the relevant statutes and legal concepts." Remmes v. Mark Travel Corp., 2015 ME 63, ¶ 19, 116 A.3d 466.

B. Bystander NIED Claim

[¶ 14] NIED claims, like all negligence claims, require a plaintiff to "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." Curtis v. Porter, 2001 ME 158, ¶ 18, 784 A.2d 18. Although "there is no . . . general duty to avoid negligently causing emotional harm to others," we have recognized "a duty to act reasonably to avoid emotional harm to others in very limited circumstances," including in bystander NIED actions, which involve "indirect" victims.[12] Id. ¶¶ 18-19; see Culbert, 444 A.2d at 436-38. To aid in establishing the...

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