KEVIN MORIN and SARA MORIN Individually and as p/n/f/ of DOMINIC MORIN, Plaintiffs
CRAIG BASSINGTHWAITE and ROBERT CALLAHAN, Defendants.
Plaintiffs-Christian Foster Esq
Defendant Bassingthwaite-Barri Bloom Esq
Defendant Callahan-Frederick Moore Esq
ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT
Joyce A. Wheeler, Justice, Superior Court
Before the Court is the defendants' motion for partial summary judgment. Defendants argue they are entitled to judgment on count VII of plaintiffs' complaint for negligent infliction of emotional distress because plaintiffs did not actually witness their son being injured. For the following reasons, defendants' motion is granted.
Factual and Procedural Background
On the evening of July 13, 2012, defendants Craig Bassingthwaite and Robert Callahan sat on Bassingthwaite's back deck with a loaded 12-gauge shotgun. (Def.'s Supp. S.M.F. ¶2, as qualified; Pl.'s Add. S.M.F. ¶2.) Bassingthwaite's bushes and flowers had been vandalized two weeks before that night, and the two defendants decided to dress in camouflage, turn off the porch lights, and wait for the vandal to return. (Def.'s Supp. S.M.F. ¶2, as qualified; Pl.'s Add. S.M.F. ¶2.) Around 11 pm, defendants noticed an intruder and opened fire with the shotgun three times, hitting and injuring the intruder. (Def.'s Supp. S.M.F. ¶3, as qualified.)
At the time the first shot was fired, plaintiffs Kevin and Sara Morin, who live next to Bassingthwaite, were sleeping and woke suddenly to the loud noise. (Def's Supp. S.M.F. ¶5.) After hearing the second shot, Mr. Morin decided to go investigate the disturbance. (Def's Supp. S.M.F. ¶8.) Mrs. Morin stood outside on their deck and saw flashing lights and a person on a stretcher being taken to the back of an ambulance. (Def's Supp. S.M.F. ¶9, as qualified). Mr. Morin heard banging, swearing, and loud noises coming from Bassingthwaite's yard. (Def's Supp. S.M.F. ¶9, as qualified). At some point, Mr. Morin walked to the back of the ambulance where he "freaked out" on seeing his son, Dominic, on the stretcher. (Pl.'s Add. S.M.F. ¶ 9.) Mrs. Morin became upset when she heard Mr. Morin yelling, "you shot my son!" (Pl.'s Add. S.M.F. ¶12.) Mr. and Mrs. Morin drove to meet their son at the hospital where they saw Dominic with a chest tube on arriving. (Pl.'s Add. S.M.F. ¶15.) The following day, Mr. and Mrs. Morin saw the full extent of Dominic's injuries, which included arm and torso wounds. (Pl.'s Add. S.M.F. ¶ 16.)
On May 15, 2013, plaintiffs filed their seven-count complaint. On December 4, 2013, Defendant Bassingthwaite filed a motion for partial summary judgment on count VII of the complaint, and Defendant Callahan joined in the motion.
1. Summary Judgment Standard
"Summary judgment is appropriate when there is no genuine issue of material fact that is in dispute and, at trial, the parties would be entitled to judgment as a matter of law." Fitzgerald v. Hutchins, 2009 ME 115, ¶9, 983 A.2d 382 (citing Dyer v. Dep't of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821). "An issue is genuine if there is sufficient evidence supporting the claimed factual dispute to require a choice between the differing versions; an issue is material if it could potentially affect the outcome of the matter." Brown Dev. Corp. v. Hemond, 2008 ME 146, ¶10, 956 A.2d 104 (citing Univ. of Me. Found, v. Fleet Bank of Me., 2003 ME 20, ¶ 20, 817 A.2d 871). To survive a defendant's motion for summary judgment, "the plaintiff must establish a prima facie case for each element of her cause of action." Watt v. UniFirst Corp., 2009 ME 47, ¶21, 969 A.2d 897.
2. Negligent Infliction of Emotional Distress - Bystander Liability
The only issue before the Court is whether, as a matter of law, plaintiffs Kevin and Sara Morin are barred from bringing a negligent infliction of emotional distress claim based on bystander liability. In Cameron v. Pepin, the Law Court held that to prevail on a negligent infliction of emotional distress claim, "a plaintiff must demonstrate that he i) was present at the scene of the accident, ii) suffered serious mental distress as a result of contemporaneously perceiving the accident, and iii) was closely related to the victim." Cameron v. Pepin, 610 A.2d 279, 284-85 (Me. 1992). The Law Court specifically limited a defendant's duty "to the emotional vulnerability that arises in parents upon actually witnessing their child receiving an injury." Id. at 284 (emphasis added). Here, there can be no dispute that Kevin and ...