Michaud v. Great Northern Nekoosa Corp.

• Decision Date: 19 August 1998
• Citation: 1998 ME 213,715 A.2d 955
• Parties: Brian MICHAUD v. GREAT NORTHERN NEKOOSA CORPORATION and Colwell Construction Company, Inc.
• Court: Maine Supreme Court

Page 955

715 A.2d 955

1998 ME 213

Brian MICHAUD v. GREAT NORTHERN NEKOOSA CORPORATION and Colwell Construction Company, Inc.

Supreme Judicial Court of Maine.

Argued Feb. 4, 1998.

Decided Aug. 19, 1998.

Peter B. Bickerman (orally); Robert J. Stolt, Lipman & Katz, Augusta, for plaintiff.

Terry A. Fralich (orally), Peter J. DeTroy Norman, Hanson & DeTroy, Portland, for defendant Great Northern Nekoosa.

Elizabeth A. Olivier (orally), Bruce C. Gerrity, Preti, Flaherty, Beliveau & Pachios, L.L.C., Portland, for defendant Colwell Construction.

Paul F. Macri, Lewiston, for amicus curiae Richard Bourgeois.

Before WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ ^*, and SAUFLEY, JJ.

WATHEN, Chief Justice.

¶1 Plaintiff Brian Michaud appeals from a summary judgment entered in the Superior Court (Penobscot County, Mead, J.) in favor of defendants, Great Northern Nekoosa Corporation (Great Northern) and Colwell Construction Company (Colwell). Plaintiff brought an action for negligent infliction of emotional distress, and the court ruled that defendants had no legal duty to protect him. On the theory that a "rescuer is not a bystander," he urges us to recognize, for the first time, a duty of care to protect a rescuer from emotional distress even in the absence of a familial relationship with the persons in peril. We decline to expand recovery on claims for negligent infliction of emotional distress. The Superior Court correctly ruled that Michaud failed to satisfy the established criteria, and we affirm the judgment.

¶2 The facts, considered in the light most favorable to Michaud, may be summarized as follows: Great Northern owns and operates the Ripogenus Dam located on the Penobscot River near Millinocket. In 1989, Great Northern hired Colwell as general contractor for a major repair project on the dam. Colwell was responsible for overseeing the entire project and supporting and assisting a diving team. Great Northern hired a diving contractor, Aqua-Tech Marine Construction Co. (Aqua-Tech), to perform all of the diving work associated with the project.

¶3 The incident that gave rise to this litigation took place during the repair of a "deepgate." Tunnels or sluiceways extend through Ripogenus Dam. A "deepgate" blocks the water in a tunnel. Because the impounded water exerts pressure on the deepgate, periodic repairs become necessary. To remove a deepgate for repairs, a maintenance gate is installed upstream in the tunnel, creating a cavity between the gates that permits the removal of the deepgate. Once the repairs are completed, the deepgate is replaced and the cavity between the two gates is filled with water. The maintenance gate cannot be removed until the cavity is filled and the water level and pressure on both sides of the maintenance gate are equalized.

¶4 In this instance, Colwell installed a temporary maintenance gate and successfully removed, repaired, and reinstalled the deepgate. When it attempted to fill the cavity between the gates, the valve in the maintenance gate failed to allow sufficient water to pass into the cavity to equalize the pressure.

¶5 Because the maintenance gate could not be removed until the cavity was filled, Colwell's superintendent and two of Great Northern's engineers devised a plan to increase the water flow through the maintenance gate: Divers would first attempt to "wedge" the maintenance gate to create an opening at the top of the gate to allow more water to flow into the tunnel; if unsuccessful, the divers would then cut holes in the maintenance gate to further increase the flow of water; and finally, if all else failed, they would obtain pumps to pump water over the maintenance gate into the cavity. The plan was put in place when two Aqua-Tech divers, Albert Harjula and Daniel Sullivan, arrived at the work site.

¶6 The two divers had no advance notice of the plan and were prepared only to attach hooks to the maintenance gate. Because they had not brought tools for underwater cutting, Colwell loaned them its tools. Sullivan dove first and, although he successfully wedged the gate, the water flow did not increase sufficiently to fill the cavity. Thereafter, according to a Colwell employee, one of Great Northern engineers exerted "peer pressure" on the divers to cut a 4" X 8" hole in the maintenance gate. Harjula, the more senior of the two divers, refused to allow Sullivan to cut a hole but agreed that Sullivan could cut "slots" in the gate. This too failed to sufficiently increase the water flow. Over lunch, the engineers again asked the divers to cut holes in the gate. This time, Harjula agreed.

¶7 As Sullivan was out of dive time for the day, Harjula made a number of dives to extend the ends of the slots to create rectangular holes. At 3:42 p.m., Harjula made a final attempt to cut additional holes. During this dive, he lost a glove and then a hammer; both were presumably sucked through a hole in the gate. He resurfaced to get a new glove, and a new hammer was sent down to him. A few minutes later, he radioed that he had lost a cuff from his wet suit and asked to be pulled up. When the surface crew began to pull, he yelled through the radio that his feet were stuck in a hole in the gate. The crew continued to pull but could not free him. At this point, Colwell's superintendent called Aqua-Tech's headquarters to locate additional divers to assist with a rescue attempt. Aqua-Tech in turn called Great Northern who also began searching for additional divers.

¶8 Sullivan, the second diver, was on the surface with the other employees. Becoming increasingly agitated, he stated that he had to try and rescue his partner and could not just let him die. Sullivan, however, was not equipped to make a rescue attempt. He had no radio equipment, he was out of dive time for the day, and he had no plan or method for rescuing Harjula. Although it is disputed whether Sullivan was ordered not to dive, he dove at 5:35 p.m. After resurfacing twice, he too became trapped in the holes in the gate. Although he continued to communicate through rope pulls, after thirty minutes all communication ended.

¶9 Plaintiff Michaud, an Aqua-Tech diver working on another construction project, had planned to meet Sullivan that evening. While waiting, he received a telephone call from his mother informing him that Harjula was "stuck" underwater and that Sullivan was going to dive to try and rescue him. She told him that a worker at the dam project had come to her store in Greenville and asked her to contact Michaud to help with the rescue.

¶10 Michaud arrived at the work site at 6:15 p.m. At about the same time, another Aqua-Tech diver, Richard Bourgeois, arrived at the site and took charge of the rescue attempt. Bourgeois sent a diver into the water to evaluate the situation. That diver panicked and Bourgeois ordered him to surface. It is unclear whether Bourgeois then asked Michaud to dive or whether Michaud volunteered.

¶11 At 7:30 p.m., Michaud dove to a depth of approximately fifty feet and observed both divers with their legs trapped in holes in the gate. Although he shined a light on both divers, neither responded. He could not visually confirm if the divers were still alive. Michaud thought that Sullivan grabbed him at one point, although he noted that it could have been as a result of his own contact with Sullivan's body.

¶12 By radio, Bourgeois instructed Michaud to attach a chainfall to each diver's harness so that they could pull the divers out of the holes. Michaud told Bourgeois that Sullivan was caught up to his knee and the chainfall would "bust him up." Bourgeois repeated his order and Michaud attached the chain through both divers' harnesses. Harjula's harness broke as soon as they tried to pull him to the surface. Sullivan's harness remained attached and the crew pulled while Michaud placed his hands around Sullivan's leg in an effort to help extricate it from the hole. Michaud was mindful of the fact that he needed to keep sufficient distance between himself and the gate to avoid being sucked into the holes.

¶13 When the chain was pulled for the final time, Michaud heard a pop and observed Sullivan's lower leg tear from his body. Sullivan's body quickly surfaced and Michaud, still underwater, was surrounded by Sullivan's blood. Bourgeois heard Michaud screaming over the radio, and when Michaud surfaced a minute later, he was totally incoherent and in severe shock. Michaud and Sullivan were transferred to a hospital in the same ambulance and Sullivan was pronounced dead, in Michaud's presence, when they arrived at the hospital. Harjula also died. His body was not recovered until the next morning. Michaud was hospitalized overnight. Following his release, he was diagnosed with post-traumatic stress disorder.

¶14 Michaud filed the present complaint for negligent infliction of emotional distress. He alleged that Great Northern and Colwell each owed him a duty of care to protect him from psychic injury. Both defendants filed motions for summary judgment. In granting the motions, the court concluded as a matter of law that defendants owed Michaud no duty to protect him from psychic injury because (1) he was not within the protected class of indirect victims, (2) that no independent duty of care is owed a rescuer, and (3) even if a...