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Berry v. Creative Beginnings Child Care Center

Superior Court of Maine, Cumberland

September 1, 2016

ERIC BERRY, et al., Plaintiffs


          Nancy Mills, Superior Court Justice.

         Before the court is defendants Creative Beginnings Child Care Center and Kerry Falagario's motion to dismiss plaintiff Eric Berry's complaint. For the following reasons, the motion is granted in part and denied in part as to defendant Creative Beginnings and granted as to defendant Falagario.


         Defendant Creative Beginnings is a daycare business owned by defendant Falagario. (PL's Compl. ¶ 7.) On February 11, 2011, plaintiff's youngest child, Devin, was in defendants' care. (Id. ¶ 8.) On the afternoon of February 11, plaintiff arrived at defendant Creative Beginnings to pick up Devin. (Id. ¶ 9.) He was accompanied by his two other children, Erica and Matthew. (Id. ¶ 10.) Erica and Matthew attempted to enter the daycare facility, but the access code they entered was denied. (Id. ¶ 11.) They were then let into the facility by another parent. (Id. ¶ 12.)

         While plaintiff waited in the parking lot, defendant Falagario approached plaintiff and told him, within sight and earshot of other parents, children, and defendants' staff, that plaintiff could not be on defendant Creative Beginnings's premises and could not pick up Devin. (Id. ¶ 13.) Inside the daycare facility, an employee of defendant Creative Beginnings separated Devin from Erica and Matthew, who were preparing Devin to leave. (Id. ¶¶ 14-15.) Plaintiff was told to leave the premises without Devin. (Id. ¶ 17.) As a result of defendants' actions, plaintiff and his children have suffered severe emotional distress, including strokes, sleep disorders, headaches, anxiety, stress, fear of separation, and gastrointestinal problems. (Id. ¶¶ 17, 25.)

         After this incident, Devin's mother, Teresa Stanford, continued to place Devin in defendants' care. (Id. ¶ 18.) Plaintiff called defendants multiple times to ask why he was barred from the premises. (Id.) Plaintiff was repeatedly told that he could not be on the premises but was not given a reason. (Id. ¶ 19.) Two weeks later, defendant Falagario told plaintiff she had made a mistake and that plaintiff was allowed to pick up Devin. (Id. ¶20.) Defendants reactivated plaintiff's access code to the facility. (Id. ¶ 21.) Defendants did not inform the other parents or staff about the error. (Id. ¶ 26.)

         On June 16, 2016, plaintiff filed a complaint individually and on behalf of Erica, Matthew, and Devin.[1] In the complaint, plaintiff alleged six causes of action against both defendants: count I, breach of contract (Eric Berry); count II, negligent infliction of emotional distress (Eric Berry and children); count III, intentional infliction of emotional distress (Eric Berry and children); count IV, defamation (Eric Berry); count V, false light (Eric Berry); and count VI, breach of fiduciary duty (Eric Berry and children). On July 7, 2016, defendants filed an answer and a motion to dismiss counts I, II, IV, V, and VI, as well as plaintiff's request for punitive damages. Defendants did not move to dismiss count III. Plaintiff opposed the motion on July 29, 2016. Defendants filed a reply on August 4, 2016.


         1. Standard of Review

         When reviewing a motion to dismiss, the court "examine[s] the complaint in the light most favorable to the plaintiff 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." In re Wage Payment Litig. v. Wal-Mart Stores, Inc., 2000 ME 162, ¶ 3, 759 A.2d 217. The court treats the facts in the complaint as admitted. Saunders v. Tisher, 2006 ME 94, ¶ 8, 902 A.2d 830. "Dismissal is warranted when it appears beyond a doubt that the plaintiff is not entitled to relief under any set of facts that he might prove in support of his claim." Tohanson v. Dunnington, 2001 ME 169, ¶ 5, 785 A.2d 1244.

         2. Motion to Dismiss

         a. Count I, Breach of Contract

         Defendants argue that the complaint does not set forth a cause of action for breach of contract because plaintiff was not a party to the contract entered into between Ms. Stanford and defendant Creative Beginnings to register Devin for daycare services.[2](Defs.' Mot. Dismiss 10-11; Ex. A to Mot. Dismiss.) Because plaintiff is not a party to the contract, he can sue for breach of contract only if the contracting parties intended that he have an enforceable right under the contract. Stull v. First Am. Title Ins. Co., 2000 ME 21, ¶ 17, 745 A.2d 975. The intent must be "clear and definite"; it is not enough that plaintiff benefitted or could have benefitted from performance of the contract. Devine v. Roche Biomedical Labs., 659 A.2d 868, 870 (Me. 1995).

         Plaintiff may be able to make this showing by virtue of the fact that he is listed in the contract as "parent/guardian 2, " a designation that appears to grant him certain rights. (Ex. A 2.) For example, the contract requires defendant Creative Beginnings to attempt to contact either parent 1 or parent 2 before calling emergency contacts. (Id. at 5.) Further, plaintiff may be able to show that the contracting parties had a clear and definite intent to allow him to pick up Devin from daycare, based on the fact that plaintiff had an access code to the facility. (PL's Compl. ¶ 33.) Plaintiffs breach of contract claim, therefore, survives as to defendant Creative Beginnings.[3] ...

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