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Curtis v. Porter, dissenting opinion.

CLIFFORD, J., with whom RUDMAN, J. joins, dissenting.

	[¶24]  Because, in my view, the Superior Court properly analyzed the
facts in the statements of material facts and correctly entered summary
judgment for Gagne on Curtis's claim of intentional infliction of emotional
distress, I respectfully dissent.
	[¶25]  Although there is evidence from which a jury could infer that
Gagne had some knowledge that Porter and Fifield were contemplating a
theft of pizza, in my view there is nothing to point to Gagne's participation
in any planning of the theft.  Moreover, Curtis's emotional distress was
caused not by the theft of the pizza, but by the assault that was committed by
Alan Porter, an action that was not foreseen even by Ryan Fifield, who
participated in the theft with Porter.
	[¶26]  In my view, Curtis has failed to present sufficient evidence
from which, without engaging in speculation, a jury could rationally infer
that Gagne was "substantially certain that [Curtis's severe emotional] distress
would result from [Gagne's] conduct" or that Gagne's conduct was so
"extreme or outrageous as to exceed all possible bounds of decency and
must be regarded as atrocious, utterly intolerable in a civilized community,"
or that her actions "caused [Curtis] severe emotional distress."  Champagne
v. Mid-Maine Med. Ctr., 1998 ME 87, ¶ 15, 711 A.2d 842, 847.  
	[¶27]  I would affirm the Superior Court's judgment in full.

Attorneys for plaintiff: Karen E. Boston, Esq. (orally) Sumner H. Lipman, Esq. Lipman & Katz, P.A. P O Box 1051 Augusta, ME 04332-1051 Attorneys for defendants: Peter T. Marchesi, Esq. (orally) Wheeler & Arey, P.A. P O Box 376 Waterville, ME 04903-0376 (for Lisa Gagne Porter) Jed David, Esq. Jim Mitchell and Jed Davis, P.A. 86 Winthrop Street Augusta. ME 04330 (for Ryan Fifield) Allen Porter P O Box 250 South Windham, ME 04062
FOOTNOTES******************************** {*} Wathen, C.J., sat at oral argument and participated in the initial conference but resigned before this opinion was adopted. {1} . Although Gagne is now known as Lisa Gagne Porter, she will be referred to as "Gagne" because Gagne was her last name at the time of these events, and also to differentiate her from Allen Porter, a co-defendant, whom she married after these alleged events occurred. {2} . The record does not reflect the specifics of Porter's sentence. {3} . Gagne owns the house and began residing there subsequent to the incident. Gagne may have owned the house at the time of the incident, but was not aware of that fact at the time. {4} . There is some dispute over whether this statement is admissible. We do not need to determine its admissibility at this time; we need only determine that there is a reasonable likelihood that the statement would be admitted at trial. The unsworn statement of Fifield that included this remark by Gagne could be admitted as a past recollection recorded, to refresh his recollection, or to impeach with a prior inconsistent statement if Fifield testifies and gives a different version of the facts at trial. See M.R. Evid. 612, 801, 803. {5} . Gagne does not contend that the statute of limitations bars recovery for the IIED and NIED claims arising out of the same operative facts as the torts that are now time barred. {6} . Curtis also sought punitive damages in her complaint. Apparently recognizing the absence of facts directly connecting Gagne to the assault, however, Curtis's appeal does not address the elements necessary for a claim for punitive damages. Thus, we do not disturb the judgment on this issue. {7} . "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1). Cf. Chadwick-BaRoss, Inc. v. T. Buck Constr., Inc., 627 A.2d 532, 534 (Me. 1993). {8} . Effective January 1, 2001, M.R. Civ. P. 7(d)(1) was amended and incorporated into M.R. Civ. P. 56(h). See Schindler v. Nilsen, 2001 ME 58, ¶ 6, 770 A.2d 638, 641. Curtis has properly opposed Gagne's motion for summary judgment with a statement of material facts containing appropriate record references. See M.R. Civ. P. 56(h). {9} . We first recognized in 1979 that a defendant may be liable for intentionally or recklessly inflicting emotional distress on a plaintiff. Vicnire v. Ford Motor Credit Co., 401 A.2d 148, 154 (Me. 1979). {10} . The Restatement defines "reckless" in the following manner: The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable [person] to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Restatement (Second) of Torts § 500 (1965). {11} . See, e.g., Bryan R. v. Watchtower Bible and Tract Soc'y of NY, Inc., 1999 ME 144, ¶¶ 12, 14, 738 A.2d 839, 844-45; Michaud v. Great N. Nekoosa Corp., 1998 ME 213, ¶ 19, 715 A.2d 955, 959-60; Hughes v. Beta Upsilon Bldg. Ass'n, 619 A.2d 525, 527 (Me. 1993). {12} . It is on this narrow point that we part company with the Superior Court. The court concluded that "Gagne might have had reason to suspect her boyfriend might steal a pizza from a delivery person, but did not assist in this endeavor nor play any role in carrying it out . . . ." (Emphasis added.) We have determined from the facts before us that a fact-finder would not be engaging in pure speculation in order to conclude to the contrary. {13} . Cf. State v. Flint H., 544 A.2d 739, 742 (Me. 1988) (actively furnishing advice and encouragement to commit a crime sufficient to generate accomplice liability in criminal law). {14} . Many jurisdictions, as a general rule, decline to recognize a claim for negligent infliction of emotional distress absent a separate tort or evidence of actual physical injury resulting from the distress. See, e.g., Doe v. Southeastern Univ., 732 F. Supp. 7, 10 (D. D.C. 1990); Gracey v. Eaker, 747 So. 2d 475, 477 (Fla. Dist. Ct. App. 1999; Czaplicki v. Gooding Joint Sch. Dist. No. 231, 775 P.2d 640, 646 (Idaho 1989); Reynolds v. Highland Manor, Inc., 954 P.2d 11, 13 (Kan. Ct. App. 1998); Payton v. Abbott Labs, 437 N.E.2d 171, 174-76 (Mass. 1982); Mauro v. Owens-Corning Fiberglas Corp., 542 A.2d 16, 23 (N.J. Super. Ct. App. Div. 1988), aff'd, Mauro v. Raymark Indus., Inc., 561 A.2d 257 (N.J. 1989); Temple-Inland Forest Prods. Corp. v. Carter, 993 S.W.2d 88, 91 (Tex. 1999). The Restatement of Torts does not recognize a claim for the infliction of unintended emotional distress absent "bodily harm or other compensable damage." Restatement (Second) of Torts § 436A (1965). {15} . The determination of duty is a matter of law to be decided by the court. Bryan R., 1999 ME 144, ¶ 11, 738 A.2d at 844. Although our earlier cases discussed the claim in terms of foreseeability of psychic harm, see Gammon v. Osteopathic Hosp. of Me., Inc., 534 A.2d 1282, 1285 (Me. 1987), we have since expressly declined to apply a pure foreseeability analysis to determine whether a duty to avoid negligently causing emotional harm exists. Bryan R.,1999 ME 144, ¶ 31, 738 A.2d at 848; Cameron v. Pepin, 610 A.2d 279, 282 (Me. 1992). {16} . See Culbert v. Sampson's Supermarkets Inc., 444 A.2d 433, 438 (Me. 1982) (allowing recovery where parent observed child choking); Purty v. Kennebec Valley Med. Ctr., 551 A.2d 858, 860 (Me. 1988) (allowing the claim to proceed where mother alleged that she observed defendant's negligence regarding her infant son); cf. Cameron, 610 A.2d at 284 (holding that no bystander liability will lie where the parent did not observe the defendant's negligence). {17} . See Rowe v. Bennett, 514 A.2d 802, 807 (Me. 1986) (allowing patient to proceed against her therapist for sexual involvement with the patient's companion); cf. Bryan R., 1999 ME 144, ¶ 17, 738 A.2d at 845 (concluding that no special relationship existed between minister and child of church members). {18} . At oral argument, Curtis conceded that no special relationship exists between herself and Gagne. {19} . "Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." Restatement (Second) of Agency § 1(1) (1958); accord Perry v. H.O. Perry & Son Co., 1998 ME 131, ¶ 7, 711 A.2d 1303, 1305; Page v. Boone's Transp., Ltd., 1998 ME 105, ¶ 5, 710 A.2d 256, 257.

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