Rowe v. Bennett

• Decision Date: 27 August 1986
• Citation: 514 A.2d 802
• Parties: Mary L. ROWE v. Louise BENNETT, et al.
• Court: Maine Supreme Court

Page 802

514 A.2d 802

55 USLW 2148

Mary L. ROWE v. Louise BENNETT, et al.

Supreme Judicial Court of Maine.

Argued Nov. 15, 1985.

Decided Aug. 27, 1986.

Bernstein, Shur, Sawyer & Nelson, Joyce A. Wheeler (orally), Portland, for plaintiff.

Geoffrey A. Cummings (orally), Christopher D. Nyhan, Portland, for Bennett.

Frederick C. Moore (orally), Portland, for Diocesan Human Relations Services.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN and SCOLNIK, JJ.

SCOLNIK, Justice.

The plaintiff, Mary Rowe, appeals from an order of the Superior Court (Cumberland County) granting summary judgment in favor of the defendants, Louise Bennett and the Diocesan Human Relations Services Incorporated (hereinafter DHRS), pursuant to Rule 56 of the Maine Rules of Civil Procedure. In her complaint, the plaintiff asserts that she suffered mental and emotional distress as a result of Bennett's social involvement with the plaintiff's companion that occurred while the plaintiff was undergoing counseling and psychotherapeutic treatment with Bennett for problems in her relationship with that companion. ¹ She alleges negligence on the part of Bennett and the failure on the part of the DHRS to supervise and to review the treatment given by Bennett. We vacate the judgment.

In support of its motion for summary judgment, the DHRS asserted that the complaint failed to state a claim on which relief could be granted and that the defense of charitable immunity barred the plaintiff's claim. Bennett joined only in that portion of the summary judgment motion that sought judgment based on the failure of the complaint to state a claim on which relief could be granted. At the hearing on the motion, the DHRS withdrew without prejudice the defense of charitable immunity. After considering the pleadings and the record before him, the trial justice granted summary judgment in favor of the defendants. Under Rule 56(c), summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that judgment should be entered as a matter of law. Procise v. Electric Mutual Liability Insurance Co., 494 A.2d 1375, 1380 (Me.1985).

The facts before the Superior Court viewed in the light most favorable to the plaintiff, see Hare v. Lumbermens Mutual Casualty Co., 471 A.2d 1041, 1043 (Me.1984), are as follows. In January, 1981, the plaintiff began attending counseling sessions offered by the Community Alcoholism Services (hereinafter CAS), a substance abuse program carried out by the DHRS that provided out-patient counseling to any person who had problems related to alcohol. She sought CAS's assistance because of difficulties she was experiencing in her relationship with her companion, Jane W., with whom she had been living in a homosexual relationship for three years. Bennett was in the employ of CAS in the capacity of a social worker. ² She holds a Master's degree in Social Work as well as an out-of-state certificate as a "graduate social worker." Bennett gave the plaintiff psychotherapeutic treatment in individual sessions approximately once a week from January, 1981, through June, 1981. These sessions involved discussions about the thoughts and feelings experienced by the patient during the previous week and generally related to the problems the plaintiff was having with Jane W. Shortly after the plaintiff commenced her therapy, Jane W. also started treatment with Bennett on a weekly basis. On several occasions, Bennett held joint therapy sessions with both the plaintiff and Jane W.

In June, 1981, Bennett stopped counseling the plaintiff on an individual basis, and transferred her to group therapy because Bennett had developed "some emotional feelings" toward Jane W. She did not reveal to the plaintiff her emotional involvement with Jane W. but instead falsely stated that CAS could no longer provide individual counseling because it was the policy of the program to limit individual counseling to a period of six months. The plaintiff's relationship with Jane W. ended about the same time that Bennett moved the plaintiff to group therapy. During July and August, 1981, when Bennett was in charge of therapy sessions for the group that included the plaintiff, Jane W. and Bennett frequently socialized together. This relationship intensified and in January, 1982, Bennett and Jane W. started living together. The plaintiff had ceased counseling with Bennett and CAS in late August, 1981.

The following month, the plaintiff commenced treatment with Dr. Joan Larkin, a board certified psychiatrist. It was the doctor's opinion that Bennett had breached her professional duty by seeing Jane W. socially while she was still treating the plaintiff and by placing her own interests above the interests of her patient. Dr. Larkin ascertained that the plaintiff felt abandoned and humiliated, suffered intense emotional turmoil and anguish manifested by disturbed sleep, loss of weight, poor concentration, crying spells and intermittent thoughts of suicide. Dr. Larkin concluded that the plaintiff was suffering from "acute reactive depression," which is "the development of depressive symptoms that are in direct consequences of an event or stress or life trauma." She identified Bennett's treatment of the plaintiff as the principal cause of plaintiff's condition. The plaintiff therefore claims that Bennett's conduct has caused her to suffer a psychological injury.

In order to prevail in this negligence action, the plaintiff must establish that the defendants were under a duty to conform to a certain standard of conduct and that a breach of that duty proximately caused an injury to the plaintiff. Macomber v. Dillman, 505 A.2d 810, 812 (Me.1986). One who undertakes to render services in the practice of a profession owes a duty to exercise that degree of skill, care and diligence exercised by members of that same profession. See, e.g., Taylor v. Hill, 464 A.2d 938 (Me.1983) (doctors); Sohn v. Bernstein, 279 A.2d 529 (Me.1971) (lawyers). See generally Restatement (Second) of Torts § 299A (1965). Accordingly Bennett, as a qualified social worker who undertook treatment of the plaintiff, and DHRS, as Bennett's employer and supervisor, were under a duty to provide care in accordance with the standards of practice applicable to similar professionals engaged in counseling and psychotherapy. Dr. Larkin stated that Bennett failed to adhere to the basic standards applicable to a psychotherapist when she continued to treat the plaintiff after Bennett became involved in a relationship with the plaintiff's primary companion. She stated that Bennett's conduct caused the plaintiff to suffer acute depression. We conclude that a genuine issue of fact exists in this case as to whether the defendants breached their respective duties and whether their conduct caused the plaintiff to suffer mental or emotional distress.

The more difficult issue presented is whether proof of an injury consisting solely of mental or emotional distress is sufficient to satisfy the requirement that damages be established before the tort of negligence is actionable. As a general rule, in order to recover for the negligent infliction of emotional or mental distress in the absence of physical injuries, the mental distress must be serious and accompanied by a physical impact. Alternatively, the existence of an underlying tort will support such a recovery. The foregoing rules have evolved from the following precedents.

Until our decision in Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117 (Me.1970), one could not maintain a negligence action premised solely on mental or emotional distress. Instead, to recover for mental distress, one was required to prove either a physical impact or blow, or a physical injury, in which case recovery for mental distress is permitted as damages that are parasitic to the underlying tort. See Herrick v. Evening Pub. Co., 120 Me. 138, 140, 113 A. 16, 17 (1921). We stated in Herrick:

In case of physical injury to the person caused by negligence mental suffering resulting from such injury is a legitimate element of damage; but if no bodily injury is alleged or proved, there can be no premise upon which to base a conclusion of mental suffering. Such elements of damage when there is no physical injury, are outside the principle of compensation. At common law it was well settled that mere injury to the feelings or affections did not constitute an independent basis for the recovery of damages.

* * *

Id. (citations omitted).

The plaintiff in Wallace suffered emotional trauma as a result of coming into contact with a foreign object contained in a Coca-Cola bottle while drinking from the bottle. Although the plaintiff could have recovered under the physical impact rule, since his lips came into contact with the foreign object, we did not apply the impact rule, but instead proposed a foreseeability test. The proposed test provided that

in those cases where it is established by a fair preponderance of the evidence there is a proximate causal relationship between an act of negligence and reasonably foreseeable mental and emotional suffering by a reasonably foreseeable plaintiff, such proven damages are compensable even though there is no discernable [sic] trauma from external causes.

269 A.2d at 121. We proposed the new rule because of the "incongruity of allowing damages for pain and suffering when accompanied by physical harm, however, [sic] slight, and denying it in those many cases in which the proof is clear there was mental suffering induced by a negligent act, but there was no physical impact." Id. However, we limited recovery for mental distress to those cases where the distress was substantial and manifested by objective symptomatology.

Twelve years later, in Culbert v. Sampson's Supermarkets Inc., 444 A.2d 433 (Me.1982), we addressed...