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York v. C.N. Brown Co.

Superior Court of Maine, Cumberland

September 28, 2017

JONATHAN YORK, as Guardian of SHERRI YORK, Plaintiff,
v.
C.N. BROWN CO., et al., Defendants.

          ORDER

          Thomas D. Warren Justice, Superior Court.

         Before the court is a motion by defendant C.N. Brown Co. to dismiss the revised amended complaint.

         For 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 A.2d 283.

         York's 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.

         1. York's Negligence Claim

         As C.N. 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 for negligence.

         In the 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.

         The 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 police.

         Those allegations are sufficient to state a claim for negligence against C.N. Brown under Kaechele.

         2. Premises Liability

         Premises 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.

         C.N. Brown's motion to dismiss is granted with respect to York's premises liability claim.

         3. Intentional Infliction of Emotional Distress

         In order to recover on a claim of intentional infliction of emotional distress ...


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