PATRICK F. MUTRIE and JOHANNA M. MUTRIE, as parents and next best friend of ETHAN J. MUTRIE, a minor, Plaintiffs,
ADAM MCDONOUGH and LINDSAY MCDONOUGH, individually and in their capacity as parents, legal guardians, and next best friend of TYLER MCDONOUGH, a minor, Defendants.
John O'Neil, Jr. Justice
This is a personal injury suit brought by the parents of Ethan J. Mutrie ("the Mutries") against Adam and Lindsay McDonough, parents of Tyler McDonough ("the McDonoughs")- According to the facts alleged in the complaint, Tyler McDonough placed Ethan Mutrie in a headlock, slammed him into the ground, and injured him while the two were playing in a youth football game between Scarborough and Saco.
Relevant here is Count II, which alleges a claim for Negligent Infliction of Emotional Distress ("NIED"). (Compl. 5-6.) The McDonoughs have filed a motion to dismiss Count II, alleging that the claim is subsumed by the other tort claims, including Count IV (Intentional Infliction of Emotional Distress), and fails to state a claim for which relief can be granted.
II. Motion to Dismiss Standard
In ruling on a motion to dismiss, the court views the facts in the complaint as true and admitted. Saunders v. Tisher, 2006 ME 94, ¶ 8, 902 A.2d 830. The court "examine[s] the complaint... to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Doe v. Graham, 2009 ME 88, ¶ 2, 977 A.2d 391, quoting Saunders, 2006 ME 94, ¶ 8, 902 A.2d 830. To dismiss for failure to state a claim, the court must determine it is "beyond doubt that [the] plaintiff is entitled to no relief under any set of facts that might be proven in support of the claim.'" Dragomir v. Spring Harbor Hosp., 2009 ME 51, ¶ 15, 970 A.2d 310, quoting Plimpton v. Gerrard, 668 A.2d 882, 885 (Me. 1995).
The parties' arguments center on whether the Law Court's decision in Curtis v. Porter, 2001 ME 158, 784 A.2d 18, mandates dismissal of Count II.
In Curtis, the Law Court contrasted NIED with the tort of intentional infliction of emotional distress ("IIED"), noting "the universe of those who may be liable in tort for the negligent infliction of emotional distress is much more limited." Curtis, 2001 ME 158, ¶ 17, 784 A.2d 18. The Court recognized three circumstances in which a claim for NIED lies: (1) bystander liability actions, (2) where a special relationship exists between the tortfeasor and the injured claimant, and (3) where the tortfeasor has committed another tort in addition to NIED. Id. ¶ 19. The Court continued:
[W]hen the separate tort at issue allows a plaintiff to recover for emotional suffering, the claim for negligent infliction of emotional distress is usually subsumed in any award entered on the separate tort.
Id. (emphasis added).
At issue in Curtis were only two claims: one for IIED and the second for NIED. The Court ultimately held that the plaintiff could not recover on her NIED claim if she failed to prevail on her IIED claim:
Curtis may recover her emotional distress damages through [her IIED] claim. She cannot, however, in the absence of a special relationship or a claim of bystander liability, press her claim to recover for her emotional distress if she does not prevail on the separate intentional infliction claim. Thus, her negligent infliction claim is subsumed in the ...