D. Warren Justice, Superior Court.
the court is a motion by defendant C.N. Brown Co. to dismiss
the revised amended complaint.
purposes of a motion to dismiss, the material allegations of
the complaint must be taken as admitted. Ramsey v. Baxter
Title Co., 2012 ME 113 ¶ 2, 54 A.3d 710. The
complaint must be read in the light most favorable to the
plaintiff to determine if it sets forth elements of a cause
of action or alleges facts that would entitle plaintiff to
relief pursuant to some legal theory. Bisson v. Hannaford
Bros. Co., Inc., 2006 ME 131 ¶ 2, 909 A.2d 1010.
Dismissal is appropriate only when it appears beyond doubt
that the plaintiff is not entitled to relief under any set of
facts that he might prove in support of his claim. Moody
v. State Liquor & Lottery Commission, 2004 ME 20
¶ 7, 843 A.2d 43. However, a plaintiff may not proceed
if the complaint fails to allege essential elements of the
cause of action. See Potter, Prescott, Jamieson &
Nelson PA. v. Campbell, 1998 ME 70 ¶¶ 6-7, 708
revised amended complaint asserts five causes of action
against C.N. Brown; negligence, premises liability,
intentional infliction of emotional distress, negligent
infliction of emotional distress, and failure to supervise
and control Eric Gwaro, who is alleged to have assaulted
Sherri York in C.N Brown's parking lot.
York's Negligence Claim
Brown points out, it is well established in Maine that
parties ordinarily have no duty to protect others from the
criminal conduct of a third party. E.g., Gniadek v. Camp
Sunshine, 2011 ME 11 ¶ 17, 11 A.3d 308.
Nevertheless, the court concludes that under the Law
Court's decision in Kaechele v. Kenyon Oil Co.,
2000 ME 39, 747 A.2d 167, York has stated a cognizable claim
Kaechele case the Law Court ruled that the
proprietor of a 24 hour convenience store has a duty to
exercise reasonable care regarding the safety of its patrons,
including a duty to guard patrons on its premises from known
dangers and dangers that it should reasonably anticipate.
2000 ME 39 ¶¶ 8-10. Kaechele specifically
involved an assault upon a patron of a convenience store in
the store parking lot.
revised amended complaint alleges that a poorly trained
employee of C.N. Brown observed that Sherri York had been
injured when she returned to the Big Apple at 2:31am, that he
did not call the police or make any effort to ensure
York's safety, and that when she went back out into the
parking lot, surveillance camera visible to the C.N. Brown
employee recorded Eric Gwaro violently assaulting York. The
revised amended complaint further alleges that Gwaro then
dragged York to an adjacent property where she was severely
beaten, and that the C.N. Brown employee never called the
allegations are sufficient to state a claim for negligence
against C.N. Brown under Kaechele.
liability is based on the existence of a dangerous condition
on the property, and the court is aware of no authority
suggesting that criminal conduct by a third person (not
alleged to have been a frequent presence in the parking lot
or on the premises) can constitute a "dangerous
condition" on the premises.
Brown's motion to dismiss is granted with respect to
York's premises liability claim.
Intentional Infliction of Emotional Distress
order to recover on a claim of intentional infliction of
emotional distress ...