Varney v. Richards

STATE OF MAINE SUPERIOR COURT PENOBSCOT, ss. CIVIL DIVISION DOCKET NO. CV-14-164 ) TERRY ANO KELLY VARNEY, ) individually and as parents and next friend of ) R.V., ) Plaintiffs, ) ) v. ) ) DENISE RICHARDS, individually and in ) ORDER ON DEFENDANTS' her official capacity as Educational ) MOTION FOR SUMMARY Technician employed by Regional School ) ,JUDGMJ1:NT AND DEFENDANT Unit# 67, ) HAMLINtS MOTION FOR ) JUDGMENT ON THE PLJ,:ADINGS DENISE HAMLIN, individually as the ) former Superintendent of Regiom1l School ) Unit #67, ) ) and ) ) KEITH LASER, in his official cnpacity as ) successor to DENISE I IAMLIN as the ) Superintendent of Regional School Unit # ) 67, ) ) Defendants. )

Before the Court is Defendants Denise Richards, Denise I lamlin, and Keith Laser's motion for summary judgment and Defendmll Denise IIamlin's motion for judgment on the pleadings in. a case alleging violations of the Maine Civil rughts Acl, 5 M.R.S. § 4681 et. seq., intentional infliction of emotional distress, negligent infliction of emotional distress, and assault and hattel'y, tiled on October 21, 2015. This case was originally filed in the District of Maine, whcl'c two counts were dismissed and the remaining counts were remanded to this Courl. After considernlion and for the reasons stated below, Defendunls' motion for smnma1y judgment is *2 GRANTED as lo cmm(s JI, JV, V, VI, and VIII. Defendant Hamlin's motion for judgment on the pleadings is GRANTED ns to counts Vll and JX, and MOOT as to counts II and IV.

BACKGROUND

The following focts, viewed in the light most favorable lo Plaintiff.<; as the non-moving party, arc undisputed and established in the stmunary judgment record. 1 In evaluating counts Vil and IX of the motion for judgment on the pleadings, only the facts alleged in Plaintiffs' complaint wilJ be considered. However, the facts described in this section prnvide a basis for the events that form the basis of this opinion.

Plaintiffs Terry and Kelly Varney nre the parents of' R.V. (Comp!.~- I.) Denise Richards is 1:111 Education Technician that rides RSU # 67 school bus # 9. (Oct's.' S.M.F. ,r,- 4-5.) On October 29, 2012, R.V., a seven-year-old elementary school student weighing 45 pounds, was

riding with another slu<lent in the front scat of school blls # 9. (Id. ~, 5-6; Pis.' Opp. S.M.F. ~,,r 6, 20.) Ms. Richards was riding in a seat two rows behind R. V., and there was an empty scat

across the aisle from her. (Dcfa.' S.M.F." 7.}

I As a preliminary mailer, Defendants argue that lhe Vnrncy affidavit cannot be used to support nrnny of Pl.iintif'fa' statements of additional material facts or Plaintiff\' denials of Defendants' statement of mntcl'ial tacts because the affidavit was not based on personal knowledge. See M.R. Civ. r. 56(e) ("(s ]upporting and opposing affidavits shall he nrnde on pe.-sonal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirnrntively that the arnanl is competent to testily to the matters stnlcd thcreii,"). Ms. Varney was not on the bus on Occobe.- 29, 2012, ilnd thus l1as no firsthand knowledge of the events thal occurred on the bus. S<ie M.R. Evid. 602; M.R. Evid. 701; State. v. Umg, 656 A.2d 1228, 1230 (Mc. 1995) (" ll>lcrsonal knowledge refers lo that which the witness has perceived through the physical senses"}: c.f Sta/(1 \I. Robi11so11, 20 I5 MF. 77, 118 A.3d 242 (holding that fl witness's idenf{(ication of people in a video was ndmissihle lay opinion).

Therefore, rill statements by Ms. Varney referring lo what occurred on the bus arc inadmissible as evidence in Delendanls' motio,i for summary judgment because Ms. Varney did not have personal knowledge of the cvc111s. The Courl will c\isrcgard nny stntemenl of malc1fal fact supported by inadmissible evidence in the Varney affidavit. Spccificnlly, the Court disregards paragraphs 2J-31 or Plaintiffs' statement of additional material facts, and deems paragraphs 6 and 8- l 7 of Oefondanl 's statement of focts admilled.

While the bus was moving, there was an altercation in R.V.'s scat between her and her scatmntc. (Id. 1118·10.) Plaintiffs allege that the callse of this altercation was bullying by R.V.'s two sea1mates, resulting in R. V. telling the boys to leave her alone; Defendants allege' that R. V. yelled at and hit her seatmnte in the lace. (Id. il11 8-9; Pis.' Opp. S.M.F. ,r~ 21-25.) After the altercation, Ms. Richards directed R.V. to move to the empty seat two rows back. (Defs.' S.M.F. ~ 10.) R.V. did not follow Ms. Richard's instructions. (id. ~ 11.) Ms. Richards stood up. walked forward to R.V.'s scat, picked her up and moved her two 1·ows back to lhe empty scat. (Id. ,r 12.) Ms. Richards then sat down in the seal next to R.V. (Id.~ 14.) Plaintiffs allege that while picking up R. V., Ms. Richards "grabbed her by the ribcage/ahdomen area and forcibly moved R.V.... then sat next to her pinning R.V.'s arms to her sides while wrapping R.V. up in an unwelcome emlm\cc. (Pis.' Opp. S.M.F. ~ 29.)

The bus was equipped with a security camera that recorded the incident. (Defs.' S.M.F. ~ 18; Ex. B.) The day afte1· the incident, Tcl'ry and Kelly Varney spent over an hour reviewing the surveillance tape of the bus ride. (Pis.' Opp. S.M.F. ~ 34.) Plaintiffs allege that Kelly Varney asked Superintendent Hamlin for a copy of the video because R. V. 's counselor was going to use the video in treatment of R.V.'s posttrnumatic stress. (Id.,~ 35-36.) Supel'intendent Hamlin told Kelly Varney "You'll never see that tape, I'll bury it first" (Id. ~1 37.) When asked what she meant by that statement, Ms. Hamlin responded, "Not only will you never have a copy of that tape; you'll never sec it again." (Id.)

RSU fl 67's insurance policy specifically excludes coverage for any claim "for which lhcrc would be immunity under the Maine Tort Claims Act in the absence of coverage." (Del's.' S.M.F. '119; Ex. A 2.)

MOTION FOR SUMMARY JUDGMENT

Under M.R. Civ. P. 56, sumnrnt')' judgment is appropriate when review of the parlies' statements of material focts and record evidence to which the statements refer, considered in the light most favornble to the non·moving party, demonstrntes that there is no genuine issue of material fact that is in dispute and the moving party is entitled to judgment as a matter of Jaw. Be<1l v. Allstate Ins. Co., 2010 ME 20, ~ I I, 989 A.2d 733. A muterial fact is one that can affect the outcome of the case, and there is n genuine issue when there is sutlicient evidence for a factfinder to choose between two competing versions of the facts. Stewarl-Dore 1·. Webster llosp. Ass'n, 2011 ME 26, ~18, 13 A.3d 773. The evidence offered to establish a dispute as to mate1·ial fact, submitted in opposition lo a motion for summary judgment, Hnccd not be persuasive at that stage, but the evidence must be sufficient to allow a foct-finder to make a factual determination withoutspceulating." Estme o.fSmith v. Cumberlam/Cnty., 2013 ME 13, ~ J9,60A.3d 759.

When acting on a motion for su1rumu·y judgment, a court may not make inferences based on cl'cdibilily or weight of the twidence. Al'l'ow Fastener Co. v. Wrabacon, Inc., 2007 MI~ 34, 1 l6, 917 /\.2d 12'.'\ (citing Emerson v. Sweet, 432 A.2<l 784, 785 (Me. 1981 )). A J)l\l'ty who moves for summary judgment is entitled to a judgment only if the party opposing the mocion, in response, fails to establish a prima focie case for each element of his cause of action. !.ouJ?ee Conservancy v. CitiMorlgage. Inc., 2012 ME I03, ~ 12, 48 A.Jd 774.

Plaintiffa allege violations of the Maine Civil Rights Act {MCRA). intentional and negligent infliclion of emotional distress, and assault and battery. I. Cgpnts II a1t<.l lY.:.Violation_of the MCRA

The MCRA "was designed to prevent intentional interference with the exercise of l'ights secured by the laws and constitutions of either the United Stales or Maine by threats, *5 intimidation, or coercion." /'helps v. /'resident & Trs. ofColby Coll., 595 A.2d 403, 404 (Me. 1991).

Whenever any person, whether or not acting under color of hrw, intentionally interferes or nttempts lo inlentionally interfore by physical force or violence against a person, damage or destruction of propel'ty or trespass on property or by the threat of physical force or violence against a person, damage or destruction of property 01· trcspnss on property with the exercise or enjoyment by any other person of rights secured by the United States Constitution or the laws of the United States or or rights secured by the Constitution of Maine or laws of the State or violates section 4684-B, the person whose exercise or enjoyment of these rights has been interfered with, or attempted to be interfered with) may institute nnd prosecute in thnl person1s own name and on that person's own behalf a civil uction for legal or equitable relief.

5 M.R.S. § 4682(1-A) (2016). "ITJhe Act provides a means of enforcing existing rights against private parties, but does not expand substantive rights." Phelps, 595 A.2d at 403.

"Claims brnught under the Maine Civil Rights Act ("MCRA"), 5 M.R.S.A. § 4681 et. seq., are interpreted in the same maimer as claims bl'ought under 42 U.S.C. § 1983, as the state statute is modeled upon the federnL" K v. City ofS. l'orthmd, 407 F. Supp. 2d 290, 298 (M. De. 2006); see al.vo Jenness v. Nickerson, 637 A.2d 1152, 1158 (Me. 1994); Doe v. Williams, 2013 ME 24, ,i 72, 6) A.3d 718 (stating that MCRA is patterned aftc1· § 1983 and affords a private cause of action for violations of constitutional rights by any pel'son); Marshall v. To1l'n of Dexler. 2015 ME 135, ~ 16, 125 A.3d 1141 (finding that "a violation of the M"ine Constitution ... is interpreted coextensively with his federal civil rights claim brought pmsrnmt to section 1983 1'). The parties' cfoims must be addressed "with the understanding that the rights guaranteed by the United States Constitution and the Maine Constitution are coexlensive." Bagley v. Raymond Sch. Dep ·,, 1999 ME 60, ii I 3, 728 /\.2d 127.

Plaintiffs argue violations of both procedural and substalllivc due process, which urc rights secured by the Fomtccnth Amendment.

A. Substantive I)ue Proces~

Maine has adopted the "shocks the conscience" standard for evalualing sub:;tnntivc due process claims. Nor/rm v. Hull, 2003 ME 118, ,r 18, 834 A.2d 928. Conduct that shocks the conscience is "so brutal and offensive that it d[oesl not comport with traditional ideas of fair play ;:md decency." Cly. ,f Sacramento v. Lewis, 523 U.S. 833, 847 (1998) (citing Breithaupt v. Abram, 352 U.S. 432, 435 ( l 957)) (quotation marks omitted). The District Court dismissed the Varncys' parallel § 1983 claims under this same standard. Varney v. Riclwrc!.'>, No. 1: 15-CV-01 l-NT, 2015 U.S. Dist. LEXIS 57179 (D. Mc. Apr. 30, 2015).

The I.aw Court has not directly addressed the issue of whether moving a student from one seat to another on a hus violates the student's due process rights. Defendants point to several cases where the "shocks the conscience" standard required the plaintiffs to meet a very high bar, noting that "conscience shocking hehavior in the education context hos usually involved physical or sexual abuse or excessive punislunent." Gomes v. Univ. <,{Me. ,\'ys., 304 F. Supp. 2d 117, 124 (D. Me. 2004). However, Plaintift:c; counler with several contradicting cases suggesting that physical restraint in an cd\lcational setting may be considered conscious shocking behavior.

The issue here is whether as a matter of law, moving n student from one seat 10 another on a bus and then sitting next to her, detaining her in the seat, violates the student's substantive due process rights. 2 This conduct is simply not conscience shocking----it is not ''so bl'utal and

,• The parties do not dispute that ~·1s. Riclrnrds picked R.V. up and moved her to a new scat two rows back, then sat next lo her. The V.lrncys described this conduct in the following manner: "Ms. Richards walked up lo R. V., grnbbccl her by the ribcage/abdomen and brought her to a back sent where she forced her i1110 the scat and snt next to her restraining h~r movement.'' (Pis.' Opp. S.M.F. ii 12.) According to the Varneys, Ms. Richards then sat next to R. V. "restraining her in nn unwelcome embrace." (Id. ,i l 11.) However, as discltssed ill the µreceding footnote, the Varney offidavi! that Plaintiffs cilc lo is inadmissible ns it pertains to the events 011 the bus, so this colorful descriptio11 of conducl is not relevant lo this discussion.

offensive" as to offend notions of "fair play and decency." lewis, 523 U.S. at 847. Picking up and moving a child to a different seal in response tu a physical altercation may be offensive to the child's parents, but is not brutal or offensive to "fair play and decency.» Id. As the District Court stated, "while Plaintiff.., arguahly allege that Defendant Richards engaged in inappropriate conduct, Plaintiffs, complaint docs not include factual allegations that lhirly can he characterized as egregious, outrageous, or conscience-shocking." Varney, 2015 U.S. Dist. LEXIS 57179 nt *9 (noting that "[t)hc Si.,preme Comt1s nffinnance of (he dismissal of the case in lngrulwm, which included a substantive due process theory, suggests that not even 'excessive paddling' would shock the conscience for purposes of fodend lnw" (citing lnxralum, v. Wrigl1t, 430 U.S. 65 L 689 n.5.)).

Thcl'cforc, Defendants' motion for summary judgment ii, grnntcd as to this count because there is no genuine issue of material fact that is in dispute.

B. Procedural Due Process: Failure to Supervise and Train

The Vnrneys' procedural due process claims are based on Superinkn<lcnl Hamlin's alleged lack of supervision and training of Dcl'cndanl Richards. Plaintiffs argue that this lack of supervision and training created n violation of R.V. 's constitutional rights.

At the time of the incident, Plaintiffs allege that the school had a policy rega.-ding the use of physical force to restrain a child. However, then: is no reference to this policy in Plaintiffs'

As noted above, Che Comt disregards paragraphs 21. -31 of Plaintiffs' statement of ndditional material facts, and deems paragraphs 6 and 8-17 of Dcl'cndant's statement of focts admitted because Plaintiff.<;' denials were supported by the Varney affidavit, which is inodmissible as ro the events on the bus. The Courl is left with L>cfcndanl 's description of the eventg, as follows:

While lhc bus was moving, there was :rn alccrcation in R.V.'s scat between her and her seatmate where R.V. yelled at and hit her scatmatc in the face. (Def.'s S.M.F. 11~ 8-10.) Arter the alkrcation, Ms. Richards directed R. V. 10 move to the empty scat two rows hack. (Id. (] I0.) R. V. did 1101 follow Ms. Richard's instructions. (id.'! I l.) Ms. Richards stood up, wulkcd l'orward to R.V.'s seal, picked her up and moved her two rows back to the empty seut. (Id.~ 12.} Ms. Richards then sat down in the seat next to R. V. (Id. 1 14.)

statement of material facts or in Plaintiffs' opposition to Defendants' statement of material facts. Since the policy itself and Ms. Hamlin's alleged violation of the policy arc not supported by Plaintiffs' statement of material facts, this count fails because there is because there is 110 genuine issue of material fact that is in dispute.

Even if the allegations of a violation of procedural due process were supported by Plaintiffs' statement of malerial facts, Plaintiffs, argument fails. Under § 1983, a defendant will be liable if the plaintiff can show a direct causal link between a policy or custom and the alleged constitutional deprivation. City ofConlon v. Harris, 489 U.S. 378, 385 ( 1989). "Liability can stem from an actual policy, a custom, or a municipality's failure to train its employees.,, K v. Cily ofS. Portland, 407 F. Supp. 2d al 298.

For liability to stem from o custom, the custom must be attributable to the municipality and must be '·so well settled and widespread that the policymaking officials of lhc municipality can be said to have either actual or constructive knowledge of it yet did nothing to encl the practice."' id. at 296 (quoting Bordanaro v. Mcleod, 871 F.2d 1151, 1156 (1st Cir. 1989)). Plaintiffs have not alleged n single instance where this policy was ignored, other than the event thal led lo this lawsuit. Even laking the facts laid out in the complaint in the light most favorable to Vamcys M the non-moving party, Plaintiffs have not alleged anything that could be reasom,bly construed as suggesting a "well settled and widespread" custom that could give rise to liability. K v. City ofS. Portland, 407 F. Supp. 2d at 296.

For liability to stem from a failme to trnin, the plaintiff must show "an actual policy of inadequate trnining, where the need for more 01· different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the Imunicipality J can reasonably be said to have been deliberately in<li ffcrcnt to the need." Id. at *9 297 (quotalion marks omitted). Further, the plaintiff must show that the municipality deliberately chose an inadequate !mining program. Id. ( Jere, the complaint merely alleges "Denise Hamlin was responsible for training and ensuring all Employees' compliance wilh RSU #67 policies;» that she "failed lo meet her duties hy failing to properly train and supervise RSU //67 employees in the policies and procedures concerning the use of physical restraints;" and that her "disregard of the school's policies and procedures created an environment where employee's failure to comply with policy was endorsed by the administration." (Comp!. 1 37.) Nowhere in the complaint are any allegations that the school deliberately chose an inadequate !mining program or that there was an "actual policy of inade<Juale !mining." K v. City ofS. Portland, 407 F. Supp. 2d at 297. I

Therefore, Defendants' motion for summary judgment is gl'antcd as to this counts 11 and IV because there is no genuine issue of material fact that is in dispute. II. Plain(i ffs' TotJ qaim~ against t-4.s. Richards Personally: Cou11ts_Y, VI, a.n~ VI.D.

"Notwithstanding any liability that may have existed at common law, employees of governmental entities shall be absolutely immune from personal civil liability for . lplerfo11ning or failing lo perform any discretionary function or duty, whether or not the discretion is abused; and whether or not any statute, charter, ordinance, order, resolution, rule or resolve under which lhe discretionary function or duty is performed is valid." 14 M.R.S. § 8111 ( l) (2016).

' The Varner: cite to Sandin "· Co1111er for the implication that once a school creates a regulation providing due J)rocess safeguards, it crentes a liberty interest. 515 U.S. 172 (1995). In Sandin, the Court 1

found that "li]n the context of innrntcs' rights, these state-created liberty interests nre limited to 'freedom from restraint which, while not exceeding the sentence in such an unexpected manner us to give rise lo protection by the Due Pmcess Clause of its own fol'cc ... nonetheless imposes atypical and significant hardship on the inmatt: in relation to the ordinary incidents of prison life."' Jackson v. Ponte, No. AP- I2- 47, 2013 Mc. Super. LEXlS 200, •7 (Sep. 25, 2013) (quoting Sandin v. Co,mer, 515 U.S. 472, 484 {1995)). Sandin created a standard for freedom from restraint in a prison context, und so far M11inc has not applied this same standard h1 a scho<>I setting.

Th~ I,aw Court has used the following four-factor test to determine whether discretionary function immunity applies:

(l) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program or o~jective'l (2) [s the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective? (3) Docs the act, omission, or decision requil'e the exercise of basic pol icy evnhtation, judgment, and expertise on the part of the govenu11cntal agency involved'? (4) Docs the governmental agency involved possess the requisite constitutional, statutot·y, or lawful authority and duty to do or make the challenged act, omission, or decision?

Norton v. flail, 2003 ME 118, 11 6, 834 A.2d 928. Disct'etionary runction immunity is not available for ministerial nets, which are "those carried out by employees ... with little personal discretion as to the circumstances in which the act is done." Tolliver v. DOT, 2008 ME 83, ,121, 948 A.2d 1223 (quotation murks omitted). The Superior Court hns held that teachers' actions while supervising students nt school is protected under discretionary function immunity, but the Law Com1 hns not yet addressed the issue. Fraser v. Superintending Sch. Comm. ofOld Town, No. CV-14-200, 2015 Mc. Super. LEXIS 207, *11-12 (July 19, 2015). 4

Here, Ms. Richard's actions in moving R.V. involved "the exercise of basic policy evaluation, judgment, and expertise." Id. al * 12 (quotation marks omitlccl). Ms. Riclmrds was

1 • "In 2002, lhc Superior Court e,rnntcd summary judgment, holding lhat wrnstling drills conducted within the school did not constitute lhc operntion of a 1>ublic building und that the coach Wi'IS entitled to discretionai-y function imnnmity when one of his players was hurt during practice inside the school. On appeal, the Lnw Court decided the case on the pl1blic building exce1>tion, nnd did not a<ldrcss the discretionary function question." Jii'aser, 2015 Me. Super. LEXIS 207 at * 11 (citing Lightfoot ,•. MS.A.D. # 3.5, 2002 WL 1973919 (Mc. Supel'. Cl., June 18, 2012), affd sub 1.10111, lightfoO/ er al. v. School Admin. Dist No. 35, 2003 ME 24, 816 A.2d 63.).

"In 2002, the Superior Court also grnnted summary judgment, holding that teachers were entitled to discretionary function immunity when one the students they were chaperoning injured hcrscl f in a foll on n playground. On appeal, the Law Court decided the case hosed on the public building cxcc1>tion, and did not reach the discretionary function question." Fmse,·, 20 IS Me. Super. LEX IS 207 al * 11-12 (ci1ing Fi<mdaca ex ref. Peterson v. City of/lmigor, 2002 WL 13358 113 (Mc. Super. June 5, 2002), affd sub nom, l'eterso11 1;. City ofRa11gor, 2003 ME 2'1, ~ 9, 831 A.2d 416.).

LO *11 charged with supervising students on the bus ride, which involved making decisions regarding activities that were appropriate for the students while riding the bus and ensuring that the best interests of the children wel'c taken into account. Id. at *l 1-12. She was performing a discretional'y function while making these decisions, so she would be protected by discretionary function immunity for all the tort claims against her, including those found in counts V, VI, and

VIII.

III. Tort Claims against Dcf1:md.ao:ts iu tb_~!! Official Capacities: Counts_V, Vl, and YHI.

Under 14 M.R.S. 8103(1) (2016), uaH governmental entities shall be immune from suit on any and all torl claims seeking recovery of damages." An exception applies if the govermnental entity has procured insurance against liability that provides coverage in areas where the govcriunental entity is immune. 14 M.R.S. 8116 (2007). ln that case, "the govcrrunental entity shall be liable in those substat1tive areas but only to the limits of the insurance coverage." Id. Here, the school's policy specifically excludes coverage for any claims. su~ject to immunity under the MCRA. (Dcfs.' S.M.F. ~I 19; Ex. B 2.) Accordingly, the Defendants in their official capacities are entitled to immunity on all Plaintiffs' tort claims, and thus summary judgment is proper.

There is no genuine dispute of material facl as to counts II, IV, V, VI, and VfH. and Defendants' are entitled to judgment as a matter of law. Therefore, the Defendants' motion for summary judgment as to counts ll, IV, V, VI, and VIII is hereby GRANTED. Since lhc motion for summary judgment has been granted as to counls II and (V, Defendant Hamlin's motion for judgment on the pleadings is hereby MOOT with respect to those two counls.

MOTION FOR JUDGMENT ON THE PLEADINGS

A party may move for judgment on the pleadings pursuant to M.R. Civ. P. 12{c) "{a]fter lhe pleadings are closed but within such time as not to delay the ll'ial." A motion for judgment on the pleadings is the equivalent of a motion to dismiss for failure to state a claim under M.R. Civ. P. 12(b)(6). MacKerron v. MucKerron, 571 A.2d 810, 813 (Mc. 1990); see also Torneselto v. Tisd<1le, 2008 ME 84, 948 A.2d 1244 (analyzing a motion for judgment on the pleadings using motion to dismiss language).

When a defendant files n motion for .iudgment on the pleadings, only lhc legal sufficiency of the complaint is tested. Cunningham v. Haza, 538 A.2d 265, 267 (Me. 1988). Any affirmative defenses proffered by the dcfondant are ignored. Id. Dismissal of a complaint is proper only when the complaint fails to state a claim for which relief may be gnmted. See M.R. Civ. P 12(b)(6). At this stage of the proceedings, the issue is whe{hcr the plaintiff is entitled to offer evidence to support their claims, not whether they will ultimately prevail. Jackson v. Birmingham Bd. ofEduc., 544 U.S. 167, 184 (2005). A complaint shall not be dismissed untess it "appears to a certainty that under no facts that could be proved in support or the claim is the plaintiff c11titlcd to relief." Monopoly, fnc. v. Aldrich, 638 A.2d 506, 510 (Mc. 1996) (quotation marks omitted). T. Co\Ult VII: lntentioJml Infliction ol' Emotional rnstress

In Henriksen ,,. Cameron, the Law Court held that a plaintiff asserting intentional infliction of emotional distress (IIEI >) is required lo show:

( 1) lhc defendant intentionally or recklessly inflicted severe emotional distress or was certain that such dislress would result from his conduct; (2) lhe conduct was so "extreme and outrageous" ns to exceed "all possible bounds of decency" and must be regarded as "atrocious, and utterly intolerable in a civilized community;" (3) the actions of the defendant caused the plaintiffs emotional distress; and

(4) the emotional distress suffered by the plaintiff was so ''severe" that "no rensonable man could be expecled to endure it."

622 A.2cl 1135, 1138-39 (Mc. 1993) (quoting Vicnh·e v. Ford Mo/or Credit Co., 401 A.2d 148

(Me. 1979) (citing Restatement (Second) of Torts § 46)); see al.rn BenJ v. Woddwide language 1

Res., Inc., 716 F. Supp. 2d 34, 54 (D. Me. 2010) (applying J'vfoine law).

The standard for successfully pmsuing an lIED claim is high·-gcncrally, a case is one in which the recitation of the facts to an average membe.- of the comnumity would lead him to exclaim, "Outrageous!" Restatement (Second) of Torts § 46 (l 965). Mere threats are not sufficiently "extreme and outrageous" to support a claim for IIED. Id. at cmt. d ·("liabilily clearly does not extend to mere insults, indignities, threats, annoynnces, petty oppressions, or other trivialities"); Beny, 716 F. Supp. 2d at 54 (lin<ling no evidence of extreme and ontrngeous conduct under Maine law where there was "no evidence that such threats were capable of being can-icd out or that [Plaintiffsj intended lo carry out such tlucals").

Additiomtlly, the Restatement provides the following comment that is pertinent to this matter:

The extreme and uutt·agcous character of the conduct may al'ise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power lo affect his interests .... In pal'ticular police officers, school authorities, landlords, ancl collecting creditors have been held liable fo1· cxt.-cmc abuse of their position. Even in such cases, however. the actor has not been held liable for mere insulls, indignities, or annoyances that are not extreme or outrageous.

Restatement (Second) Torts § 46 cmt. e. The illustration dealing with school authorities as mentioned in the cummen( above addresses conduct by a principal to a student, not by school imthority to parents:

A, the princip,ll of a high school, summons B. a schoolgirl, to his office, and abruptly accuses her of immoral conduct with various men. A D\lllics B for an hour, and lhreatens her with prison and with public disgrace for herself and her

parents unless she confesses. H suffers severe emotional distress, and resulting illness. A is subject to liability to D for both.

Id. at cmt. c, illus. 6.

Here, the Vurneys claim that Ms. I lmnlin's «refusal to provide the video feed so that R.V.'s therapist could view it and design an appropriate thernpeulic regime" is extreme and ouU'ageous conduct sufficienl to support an JIED claim. (Pis.' Opp'n 4.) However, as Ms. Hamlin points out, the complaint does not actually include such facts. The complaint alleges "Denise l lamlin engaged in intentional or reckless conduct when she threatened to destroy or hide evidence of harm to Terry and Kelly Varney's seven year old daughter which conduct inf1ictcd, or was substantially certain to result in, severe emotional distress to Tel'l'y and Kelly Varney." (Comp!.~ 59.)

Ir the conduct were directed at R. V., the claim for IIED may huve enough merit to survive a motion to dismiss bccm1sc Ms. I lamlin would have some enhanced level of authority

over her student, which could warrant lowering the "extreme and outrageous" standard. See Restatement (Second) of Torts § 46 cmt. c. I luwevcr, directed at a pal'cnt, ·who the school officiul does not have the same level of authority over, the mm claim is evaluated hy the high "extreme and outrageous" standard. flerc, the alleged conduct of Ms. Hamlin simply does not rise to the level of extreme nnd outrngcous conduct such that a reasonabk pc.-son could not be

expected to endure it. As the federal court in Ben:1 noted-while applying Maine law -mere 1

threats arc not sufficiently "extreme and outrageous" to support a claim for HED. 716 F. Supp. 2d at 54.

Therefore, "it appears w a certainly lhal undel' no facts that could be proved" in support or the nrm claim are Plaintiffa entitled to relief. Monopoly, 638 A.2d at 5 I0. *15 11. Count IX : NegIigenl Inn iction of Emotional Distress

To smvivc a defendant's motion to dismiss 011 a negligent infliction of emotional distress (NIED) claim, the plaintiff must have alleged sufficient focts that could eslablish that (l) the defendant owed a duty to the plainliff; (2) the defendant breached the duty; (3) the plaintiff suffered sevel'e emotional distress; and (4) the defendant's conduct caused the harm. Oceanic Inn, Inc. v. Sloan's Cove, LLC\ 2016 ME 34, ~ 23, 133 A.3d 102 L A plaintiff claiming NIED foces "a significant hurdle in establishing the requisite duty, in great part because the dctcrminntion of duty in 1hese circumstances is not generated by traditional concepts of foreseeability." Curl is v. Porter, 200 I ME 158, ~ 18, 784 A.2d 18. "A hhough each person has a duty to act reasonably to avoid causing physical harm to others, there is no analogous general duty to avoid negligently causing emotional harm lo others." Id.

The Varneys do not allege that Ms. Hamlin owed a duly to the Vamcys other than '(Denise I lamlin had a duty not to inflict emotional distress upon Terry and Kelly Varney." (Compl. ,r 70.) As stated above, there is no duty lo avoid negligently causing emotional harm to others. See Curtis, 2011. ME 158, ,r 18, 784 A.2d 18. Accordingly, because Ms. llamlin did not owe a duty to the Vnrneys, the Varncys have not stated a claim for relief that is plausible on its face.

Plaintiffs have failed lo slate a prima .fi1ci,• case for counts VII and IX, alleging intentional infliction of emotional distress and negligent infliction of emotional distl'CSS. Therefore, Defendant Denise Hamlin's motion for judgment on the pleadings is GRANTEI> with respect to counts VII and l X. As mentioned before, the motion for judgment on the pleadings is dismissed as moot for counts II and IV because those counts were dealt with in the motion for summary judgment.

The entry is:

1. Defendants) Motion for Summnry Judgment on Counts U, (V, V, VI, and vm is GRANTED. 2. Defendant Denise Hamlin's Motion fo1· Judgment on the Pleadings is GRANTED on Counts VII and JX. 3. Defendant Denise Hamlin's Motion for Judgment on the Pleadings is MOOT as to Counts 11 and IV. 4. The Clerk is directed to incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a).

Onted 4.r/6.- ,. ~~. ~/;'./!:__ 1 G.-~---- --- - William R. Anderson Justice, Maine Superior Court