Ashlock v. Dumaine

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STATE OF MAINE KENNEBEC, ss SUPERIOR COURT CIVIL ACTION , DOCKET NQ. CV-W-345 1Ijf) - KE- N--JERRY ASHLOCK, and BARBARA NICCOLI-HILTZ and RODNEY HILTZ, individually and as next friends of JANE DOE >-- //' ~I -) .' Plaintiffs v. DECISION AND ORDER CHRISTOPHER 1. DUMAINE Defendant Plaintiffs Jerry Ashlock (Jane Doe's father), Barbara Niccoli-Hiltz (Jane Doe's mother), and Rodney Hiltz (Jane Doe's stepfather) have filed a complaint against the defendant and 'seek damages as individuals and as next friends of Jane Doe for negligent infliction of emotional distress, intentional infliction of emotional distress, breach of fiduciary duty, and punitive damages. The defendant moves pursuant to M.R. Civ. P. 12(b)(6) to dismiss the individual claims of these plaintiffs. On this motion to dismiss, the court treats as admitted the material allegations of the complaint. Plimpton v. Gerrard, 668 A.2d 882,885 (Me. 1995). The question for the court is whether those allegations create a legally sufficient claim upon which relief can be granted. Id. For the following reasons, the motion is granted in part and denied in part. 1. Count I: Negligent Infliction of Emotional Distress There is no general duty to avoid negligently causing emotional harm to others. Curtis v. Porter, 2001 ME 158, <[ 18, 784 A.2d 18, 25. The Law Court has "recognized a duty to act reasonably to avoid emotional harm to others in very limited circumstances: first, in claims commonly referred to as bystander liability actions; and second, in circumstances in which a special relationship exists between the actor and the person emotionally harmed." Id. CJI 19, 784 A.2d at 25. The scope of the duty in parent bystander liability cases is limited to those situations in which parents actually witness their child receiving an injury. Cameron v. Pepin, 610 A.2d 279,284 (Me. 1992). The plaintiffs argue that this case is distinguishable from Cameron and Curtis because the ongoing sexual relationship between the defendant and their daughter made them witnesses to the ongoing harms incurred by their daughter. There is no basis on which to extend the explicit requirement that parents actually witness the child receiving the injury. While these parents may have been subjected to witnessing the day-to-day harm of the injury, they did not witness their daughter receiving the injury itself. Alternatively, plaintiffs must establish that defendant, as the educator of their daughter, is under a general obligation for their benefit as parents. Watchtower Bible and Tract Society of NY, Inc., 1999 ME 144, CJI Brian R. v. 11, 738 A.2d 839, 844. Plaintiffs note that Brian R. dealt with liability of a third party church, not the perpetrator, and rely instead on Rowe v. Bennett. That case, however, concerns the person harmed and not the parents of the person harmed. Rowe v. Bennett, 514 A.2d 802, 807 (Me. 1986). In the absence of case law to the contrary, a teacher has no general obligation to the parents of his student to avoid negligently causing them emotional harm. II. Count II: Intentional Infliction of Emotional Distress In order to be liable for intentional infliction of emotional distress: (1) defendant must have intentionally or recklessly inflicted severe emotional distress to the parents 2 or must have been certain or substantially certain that such distress to the parents would result from his conduct; (2) the conduct must be "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) defendant's actions must cause the parents emotional distress; and (4) the parents emotional distress must be "so severe that no reasonable person could be expected to endure it." Curtis, <[ 10, 784 A.2d at 22-23 (quoting Champagne v. Mid-Maine Medical Center, 1998 ME 87, CJI IS, 711 A.2d 842, 847 (articulating the standard on a summary judgment motion)). The defendant argues that there are no allegations that he engaged in sexual acts with plaintiffs' daughter with the intent to cause them emotional distress or was certain or substantially certain that such distress to the parents would occur because of his actions. The plaintiffs' allegations are sufficient to withstand a motion to dismiss. This court cannot say beyond doubt that the plaintiffs are entitled to no relief under any set of facts they might prove in support of count II. See Hall v. Board of Environmental Protection, 498 A.2d 260, 266 (Me. 1985); Champagne, <[CJI 15-16, 711 A.2d at 847. III. Count II: Breach of Fiduciary Duty [B]ecause the law does not generally require individuals to act for the benefit of others, the factual foundations of an alleged fiduciary relationship must be pled with specificity. Simple recitations of a trusting relationship will not suffice for identifying a fiduciary duty. In brder to survive a motion to dismiss a clam for breach of fiduciary duty, the plaintiff must set forth specific facts constituting the alleged relationship with sufficient particularity to enable the court to determine whether, if true, such facts could give rise to a fiduciary relationship. Brian R., CJI 21, 738 A.2d at 846-47. Maine law has not recognized that a teacher owes a fiduciary duty to the parents of his student. There are no facts alleged that could give rise to a fiduciary relationship in this case. 3 IV. Count I: Punitive Damages The plaintiffs argue that defendant's actions were "so outrageous" that malice against them as injured parties can be implied and an award of punitive damages is available. Tuttle v. Raymond, 494 A.2d 1353, 1361 (Me. 1985). This determination is fact specific. Based on the allegations in count II, the court cannot conclude that the plaintiffs are entitled to no relief based on any set of facts they might prove. Hall, 498 A.2d at 266. The entry is Defendant's Motion to Dismiss is GRANTED in part and DENIED in part. Plaintiffs Jerry Ashlock, Barbara Niccoli-Hiltz, and Rodney Hiltz's individual claims in Counts I and III of Plaintiffs' Complaint are DISMISSED. Judgment is entered in favor of the Defendant and against Plaintiffs Jerry Ashlock, Barbara Niccoli-Hiltz, and Rodney Hiltz on their individual claims in Counts I and III. The Defendant's Motion to Dismiss Plaintiffs Jerry Ashlock, Barbara Niccoli-Hiltz, and Rodney Hiltz's individual claims in Counts II and IV is DENIED. ¢ Date: May 30, 2008 ancy Mills Justice, Superior Court 4 JERRY ASHLOCK - PLAINTIFF OBO 149 NORTH MAINE STREET NORTH MONMOUTH ME 04265 Attorney for: JERRY ASHLOCK MICHELLE ALLOTT - RETAINED 11/26/2007 FARRIS LAW, P.A. 251 WATER STREET PO BOX 120 GARDINER ME 04345-0120 SUPERIOR COURT KENNEBEC, ss. Docket No AUGSC-CV-2007-00345 DOCKET RECORD BARBARA NICCOLI-HILTZ - PLAINTIFF OBO 83 RED TOP DRIVE MONMOUTH ME 04259 RODNEY HILTZ - PLAINTIFF aBO 83 RED TOP DRIVE MONMOUTH ME 04259 JANE DOE - MINOR PLAINTIFF vs CHRISTOPHER I DUMAINE - DEFENDANT 782 MAIN STREET, READFIELD ME 04355 Attorney for: CHRISTOPHER I DUMAINE WALTER MCKEE - RETAINED LIPMAN & KATZ & MCKEE, PA 227 WATER STREET PO BOX 1051 AUGUSTA ME 04332-1051 Attorney for: CHRISTOPHER I DUMAINE JAMES A BILLINGS - RETAINED LIPMAN & KATZ & MCKEE, PA 227 WATER STREET PO BOX 1051 AUGUSTA ME 04332-1051 KENNEBEC SAVINGS BANK - TRUSTEE GARDINER SAVINGS BANK - TRUSTEE KEY BANK - TRUSTEE BANGOR SAVINGS BANK - TRUSTEE BANK OF AMERICA - TRUSTEE NORTHEAST BANK - TRUSTEE TD BANKNORTH - TRUSTEE Filing Document: COMPLAINT Filing Date: 11/26/2007 Minor Case Type: OTHER PERSONAL INJURY TORT Docket Events: 11/26/2007 FILING DOCUMENT - COMPLAINT FILED ON 11/26/2007 11/26/2007 Party(s): JERRY ASHLOCK ATTORNEY - RETAINED ENTERED ON 11/26/2007 Plaintiff's Attorney: MICHELLE ALLOTT 11/26/2007 CERTIFY/NOTIFICATION Plaintiff's Attorney: CASE FILE NOTICE SENT ON 11/26/2007 MICHELLE ALLOTT Page 1 of 5 Printed on: 06/02/2008 AUGSC-CV-2007-00345 DOCKET RECORD 11/26/2007 Party(s): JERRY ASHLOCK,JANE DOE,BARBARA NICCOLI-HILTZ,RODNEY HILTZ MOTION - OTHER MOTION FILED ON 11/26/2007 Plaintiff's Attorney: MICHELLE ALLOTT PLAINTIFF'S EX PARTE MOTION TO SEAL WITH PROPOSED ORDER. ATTY. OF RECORD. COPIES GIVEN TO 11/26/2007 Party(s): JERRY ASHLOCK,JANE DOE,BARBARA NICCOLI-HILTZ, RODNEY HILTZ MOTION - OTHER MOTION DENIED ON 11/26/2007 DONALD H MARDEN , JUSTICE PLAINTIFF'S EXPARTE MOTION TO SEAL WITH PROPOSED ORDER. ATTY. OF RECORD. COPIES GIVEN TO 11/26/2007 Party(s): JERRY ASHLOCK,JANE DOE,BARBARA NICCOLI-HILTZ,RODNEY HILTZ MOTION - EX PARTE ATTACH/TRUSTEE PROC FILED WITH AFFIDAVIT ON 11/26/2007 Plaintiff's Attorney: MICHELLE ALLOTT WITH PROPOSED ORDER. 11/26/2007 Party(s): JERRY ASHLOCK,JANE DOE,BARBARA NICCOLI-HILTZ,RODNEY HILTZ MOTION - EX PARTE ATTACH/TRUSTEE PROC GRANTED ON 11/26/2007 DONALD H MARDEN , JUSTICE COpy GIVEN IN HAND TO ATTY. OF RECORD. 12/11/2007 Party(s): KENNEBEC SAVINGS BANK OTHER FILING - TRUSTEE STATEMENT UNDER OATH FILED ON 12/10/2007 S/KELLEY MADORE LOAN OFFICER 12/13/2007 Party(s): GARDINER SAVINGS BANK OTHER FILING - TRUSTEE STATEMENT UNDER OATH FILED ON 12/12/2007 JYCE ST. AMAND ASST. VICE PRESIDENT 12/13/2007 OTHER FILING - TRUSTEE STATEMENT UNDER OATH FILED ON 12/13/2007 BANK OF AMERICA, SANDRA ALLEN, NORTHEAST LEGAL ORDER PROCESSING. 12/18/2007 OTHER FILING - TRUSTEE STATEMENT UNDER OATH FILED ON 12/17/2007 S/DIANA J.HOLT 12/21/2007 Party(s): CHRISTOPHER I DUMAINE ATTORNEY - RETAINED ENTERED ON 12/21/2007 Defendant's Attorney: WALTER MCKEE 12/28/2007 OTHER FILING - TRUSTEE STATEMENT UNDER OATH FILED ON 12/13/2007 S/WILLIAM B SWALES, SENIOR V.P. BANGOR SAVINGS BANK 12/29/2007 OTHER FILING - TRUSTEE STATEMENT UNDER OATH FILED ON 12/27/2007 TARA SMITH, TD BANKNORTH 01/09/2008 Party(s): KENNEBEC SAVINGS BANK SUMMONS/SERVICE - SUMMONS TO TRUSTEE SERVED ON 12/06/2007 SERVICE MADE ON WILLIAM HILL FOR KSB 01/09/2008 Party(s): GARDINER SAVINGS BANK SUMMONS/SERVICE - SUMMONS TO TRUSTEE SERVED ON 12/06/2007 Page 2 of 5 Printed on: 06/02/2008 AUGSC-CV-2007-00345 DOCKET RECORD SERVICE MADE ON DONNA YORK (GSB) 01/09/2008 Party(s): TD BANKNORTH SUMMONS/SERVICE - SUMMONS TO TRUSTEE SERVED ON 12/06/2007 SERVICE MADE ON DAN NICHOLS (TD BANKNORTH) 01/09/2008 Party(s): NORTHEAST BANK SUMMONS/SERVICE - SUMMONS TO TRUSTEE SERVED ON 12/06/2007 SERVICE MADDE ON LIZA CRENSHAW (NORTHEAST BANK) 01/09/2008 Party(s): BANK OF AMERICA SUMMONS/SERVICE - SUMMONS TO TRUSTEE SERVED ON 12/06/2007 SERVICE MADE ON BRENT VICNAIRE (BANK OF AMERICA) 01/09/2008 Party(s): BANGOR SAVINGS BANK SUMMONS/SERVICE - SUMMONS TO TRUSTEE SERVED ON 02/06/2007 SERVICE MADE ON LORI HEYER (BSB) 01/09/2008 Party(s): KEY BANK SUMMONS/SERVICE - SUMMONS TO TRUSTEE SERVED ON 12/06/2007 SERVICE MADE ON LORI HUDSON (KEY BANK) 01/11/2008 Party(s): CHRISTOPHER I DUMAINE SUMMONS/SERVICE - ACCEPTANCE OF SERVICE SERVED ON 12/28/2007 ACCEPTED BY WALTER MCKEE, ESQ. FOR C. DUMAINE 01/16/2008 Party(s): CHRISTOPHER I DUMAINE RESPONSIVE PLEADING - ANSWER & AFFIRMATIVE DEFENSE FILED ON 01/14/2008 Defendant's Attorney: WALTER MCKEE 02/01/2008 DISCOVERY FILING - DISCOVERY DEADLINE ENTERED ON 10/01/2008 ASSIGNMENT - SINGLE JUDGE/JUSTICE ASSIGNED TO JUSTICE ON 01/18/2008 NANCY MILLS , JUSTICE 02/01/2008 ORDER - SCHEDULING ORDER ENTERED ON 01/18/2008 NANCY MILLS , JUSTICE ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. PARTIES/COUNSEL COPIES TO 02/07/2008 party(s): CHRISTOPHER I DUMAINE OTHER FILING - ENTRY OF APPEARANCE FILED ON 01/17/2008 Defendant's Attorney: JAMES A BILLINGS 02/07/2008 party(s): CHRISTOPHER I DUMAINE ATTORNEY - RETAINED ENTERED ON 01/17/2008 Defendant's Attorney: JAMES A BILLINGS 02/07/2008 party(s): CHRISTOPHER I DUMAINE MOTION - DISSOLVE ATTACH/TRUSTEE PROC FILED WITH AFFIDAVIT ON 02/05/2008 Defendant's Attorney: WALTER MCKEE DEFT'S MOTION TO DISSOLVE EX PARTE ATTACHMENT AND TRUSTEE PROCESS AND INCORPORATED MEMORANDUM OF LAW, AFFIDAVITS OF WALTER F. MCKEE AND JAMES A. BILLINGS, REQUEST FOR Page 3 of 5 Printed on: 06/02/2008 AUGSC-CV-2007-00345 DOCKET RECORD HEARING, PROPOSED ORDER. 02/07/2008 Party(s): CHRISTOPHER I DUMAINE MOTION - MOTION TO DISMISS FILED ON 02/05/2008 Defendant's Attorney: WALTER MCKEE DEFT'S MOTION TO DISMISS AND INCORPORATED MEMORANDUM OF LAW, REQUEST FOR HEARING, ORDER. PROPOSED 02/07/2008 Party(s): CHRISTOPHER I DUMAINE DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 02/05/2008 Defendant's Attorney: WALTER MCKEE NOTICE OF DEPOSITION OF LEIGHANN ASHLOCK, SERVED ON G. FARRIS, ESQ. ON 02/05/08. 02/27/2008 Party(s): JERRY ASHLOCK,BARBARA NICCOLI-HILTZ, RODNEY HILTZ OTHER FILING - OPPOSING MEMORANDUM FILED ON 02/26/2008 Plaintiff's Attorney: MICHELLE ALLOTT PLTFS' OPPOSITION TO DEFT'S MOTION TO DISMISS, W/ INCORPORATED MEMORANDUM OF LAW. 02/27/2008 Party(s): JERRY ASHLOCK,BARBARA NICCOLI-HILTZ,RODNEY HILTZ OTHER FILING - OPPOSING MEMORANDUM FILED ON 02/26/2008 Plaintiff's Attorney: MICHELLE ALLOTT PLTFS' OPPOSITION TO DEFT'S MOTION TO DISSOLVE EX PARTE ATTACHMENT AND TRUSTEE PROCESS W/ INCORPORATED MEMORANDUM OF LAW. 03/06/2008 Party(s): CHRISTOPHER I DUMAINE OTHER FILING - REPLY MEMORANDUM FILED ON 03/04/2008 Defendant's Attorney: JAMES A BILLINGS DEFT'S REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 03/11/2008 Party(s): JERRY ASHLOCK,JANE DOE, BARBARA NICCOLI-HILTZ,RODNEY HILTZ MOTION - EX PARTE ATTACH/TRUSTEE PROC VACATED ON 02/29/2008 NANCY MILLS , JUSTICE 03/11/2008 ORDER - ATTACHMENT & TRUSTEE PROCESS ENTERED ON 02/29/2008 NANCY MILLS, JUSTICE COPY TO PARTIES/COUNSEL. THE EX PARTE ORDER APPROVING ATTACHMENT & TRUSTEE PROCESS DATED 11/26/07 IS VACATED; ATTACHMENT & TRUSTEE PROCESS IN THE AMT OF $50,000 ARE APPROVED, PROVIDED THAT THE FIRST $100 OF DEMAND BANK ACCOUNTS HELD BY ANY ONE TRUSTEE SHALL BE EXEMPT FROM TRUSTEE PROCESS PURSUANT TO THIS ORDER. 03/11/2008 Party(s): CHRISTOPHER I DUMAINE MOTION - DISSOLVE ATTACH/TRUSTEE PROC GRANTED ON 02/29/2008 NANCY MILLS , JUSTICE COPIES TO PARTIES/COUNSEL ATTACHMENT AND TRUSTEE PROCESS, 02/29/08 ORDER APPROVING 05/13/2008 Party(s): JERRY ASHLOCK, BARBARA NICCOLI-HILTZ,RODNEY HILTZ MOTION - MOTION TO DISMISS FILED ON 05/07/2008 Plaintiff's Attorney: MICHELLE ALLOTT PARTIAL MOTION TO DISMISS. PROPOSED ORDER. OS/29/2008 Party(s): JERRY ASHLOCK, BARBARA NICCOLI-HILTZ, RODNEY HILTZ MOTION - MOTION STAY OF PROCEEDINGS FILED ON OS/23/2008 Page 4 of 5 Printed on: 06/02/2008 AUGSC-CV-2007-00345 DOCKET RECORD Plaintiff·s Attorney: MICHELLE ALLOTT MOTIONFOR STAY OF ALL DEADLINES. PROPOSED ORDERS. 06/02/2008 Party(s): JERRY ASHLOCK,BARBARA NICCOLI-HILTZ,RODNEY HILTZ MOTION - MOTION TO DISMISS GRANTED ON 05/30/2008 NANCY MILLS , JUSTICE COpy TO ATTYS ALLOTT AND MCKEE 06/02/2008 Party(s): JERRY ASHLOCK,BARBARA NICCOLI-HILTZ,RODNEY HILTZ MOTION - MOTION STAY OF PROCEEDINGS GRANTED ON 05/30/2008 NANCY MILLS , JUSTICE COpy TO ATTYS ALLOTT AND MCKEE 06/02/2008 FINDING - JUDGMENT DETERMINATION ENTERED ON 05/30/2008 NANCY MILLS , JUSTICE ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. ALLOTT AND MCKEE COpy TO ATTYS ORDER - COURT JUDGMENT ENTERED ON 05/30/2008 NANCY MILLS, JUSTICE ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPY TO ATTYS ALLOTT AND MCKEE Judgment entered on COUNT 1 for CHRISTOPHER I DUMAINE and against JERRY ASHLOCK, BARBARA NICCOLI-HILTZ, RODNEY HILTZ. Judgment entered on COUNT 3 for CHRISTOPHER I DUMAINE and against JERRY ASHLOCK, BARBARA NICCOLI-HILTZ, RODNEY HILTZ. 06/02/2008 Party(s): CHRISTOPHER I DUMAINE MOTION - MOTION TO DISMISS GRANTED ON 05/30/2008 NANCY MILLS, JUSTICE COUNTS I AND III 06/02/2008 Party(s): CHRISTOPHER I DUMAINE MOTION - MOTION TO DISMISS DENIED ON 05/30/2008 NANCY MILLS , JUSTICE COUNTS II AND IV A TRUE COPY ATTEST: Clerk Page 5 of 5 Printed on: 06/02/2008

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