# Clark v. Means > Superior Court of Maine · January 15, 2002 URL: https://www.frixlaw.com/law-library/cases/10807605 ## Case - **Court:** Superior Court of Maine - **Decided:** January 15, 2002 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Jeffrey L. Hjelm - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10807605 ## Opinion text STATE OF MAINE SUPERIOR COURT PENOBSCOT, SS. Docket No. CV-01-170 _ GA yk Barbara A. Clark, ) Plaintiff ) ) FILED AND ENTERED SUPERIOR COURT ) ) Paul B. Means et al., ) Defendants ) Pending before the court is the defendant Paul B. Means’ (Means) motion to dismiss some (but not all) of the plaintiff's claims.! In his motion, Means contends that the plaintiff's allegations of misconduct in the workplace cannot provide the basis for relief because of the immunity and exclusivity provisions of the Workers’ Compensation Act (WCA). In her complaint, the plaintiff alleges that she was employed by defendant Means Investment, Co., Inc., and that Means himself was her supervisor: and the sole owner and president of the company. She further alleges during the period of her employment, Means made sexually suggestive comments to her and made inappropriate physical contact with her. She also alleges that Means engaged in other actionable conduct when she was at home or places other than the worksite. On the basis of these and further allegations, she has made claims for invasion of privacy (count 1), unintentional infliction of emotional distress (count 2), and intentional lThe movant's counsel also represents co-defendant Means Investment Co., Inc. The motion at bar, however, is made by defendant Paul B. Means only. 1 infliction of emotional distress (count 3).2 Means argues that those portions of the three tort claims that arise from conduct occurring in the workplace are barred by the combined effects of 39-A M.R.S.A. § 104 (providing immunity to employers against employees’ civil claims arising out of and in the course of employment) and 39-A M.R.S.A. § 408 (providing for a waiver of common law civil claims by employees who have secured worker's compensation benefits). “A motion to dismiss tests the legal sufficiency of the complaint.” McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994). On a motion to dismiss, the complaint must be examined "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.” Jd. In his summary judgment motion, Means contends that the record does not support genuine contentions of material fact necessary for Clark to make out her claims against him. Summary judgment is proper only if the record on summary judgment shows that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. See M.R.Civ.P. 56. To survive a motion for a summary judgment, the opposing party must produce evidence that, if produced at trial, would be sufficient to resist a motion for a judgment as a matter of law; "[t]he plaintiff must establish a prima facie case for each element of the cause of action." Rodrigue v. Rodrigue, 1997 ME 99, (8, 694 A.2d 924, 926. "A fact is material when it has the potential to affect the outcome of the suit." Prescott v. State Tax Assessor, 1998 ME 250, {5,721 A.2d 169, 172. The court cannot decide an issue of fact even if the opposing party’s chances of prevailing at trial on that issue are improbable. Cottle Enterprises, Inc. v. Town of Farmington, 1997 ME 78, { 11, 693 A.2d 330, 334. Count 1: Invasion of Privacy To prevail on a claim for invasion of privacy, the plaintiff must prove that Means intentionally intruded into Clark’s private affairs or concerns and that the intrusion would be highly offensive to a reasonable person. See Nelson v. Maine Times, 373 A.2d 1221, 1223 (Me. 1977). The record on summary judgment supports a factual contention that Means invaded Clark’s privacy in this sense. On this record, a fact-finder could conclude that on many occasions over a long span of time, Means engaged in non-immunized affidavit that Clark had executed and filed in conjunction with Means’ first summary judgment motion. In his reply to Clark’s objection to the motion to strike, Means acknowledges that she now has complied with the rule. In other circumstances, the belated record reference might not cure the ori ginal problem because the movant, in his reply filing, still would not have had the opportunity to evaluate and respond to the newly identified record reference. Here, on the other hand, Means does not claim surprise or prejudice. Thus, in the unique circumstances at hand, the court denies those parts of Means’ motion to strike that are based on the initial omission of record refererices to Clark’s affidavit. Finally, the court need not address Means’ motion to strike POSMF { 14 because that assertion does not influence the disposition of his summary judgment motion. i conduct’ which amounts to an intrusion into highly personal matters that were of no legitimate concern to him. Means argues that, impliedly or otherwise, she consented to that conduct, particularly because of her acquiescence to that behavior and her failure to repudiate his conduct on a number of instances in the workplace and on the telephone. However, the inquiry inherent in the liability claim is whether a reasonable person would find the invasion to be “highly offensive.” Id. This is a point that is uniquely suited for the assessment of a fact-finder, particularly a jury, which will constitute the fact-finder here. Further, to the extent that Clark’s individual response is material, the record is sufficient to generate a claim that she found Means’ conduct to be highly offensive. She told Means to stop calling her, and she left her job at Means Investment because she felt that she was being abused and harassed. Although there is considerable evidence to the contrary, the record generates a genuine issue of material dispute. Finally, evidence that Clark told Means to stop calling here generates a factual issue to support her allegation that any intrusion into her private concerns was intentional. Count 2: Intentional Infliction of Emotional Distress (ITED) In order to prevail on a claim of ITED, Clark must prove here that Means intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from his conduct; that Means’ conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious and utterly intolerable in a civilized community; that Means’ conduct caused Clark’s emotional distress; and that Clark’s emotional distress was so severe that no reasonable person could be expected to endure it. See Curtis v. Porter, 2001 ME 158, { 10, 784 A.2d 18, 22-23. The court is allocated the responsibility to decide whether a defendant’s alleged conduct “may reasonably be regarded as so extreme and outrageous to permit recovery. ...” Champagne v. Mid-Maine Medical Center, 1998 ME 87, [ 16, 711 A.2d 842, 847. In the particular circumstances of this case, the question of whether the record provides genuine factual support for this element is a close one. In the abstract, Means’ * The order on Means’ first motion for summary judgment establishes some parameters for Clark’s claims, bounded by Means’ immunity from civil liability under the Workers’ Compensation Act and under the applicable period of limitations. repeated inquiries of Clark regarding her sex life and sexual] history can be viewed as utterly reprehensible. However, that conduct cannot be seen in a vacuum, and that surrounding evidence reveals — to a si gnificant extent, without dispute — that Clark’s relationship with Means was often flirtatious. However, several additional factors tend to make this element a triable issue: Means had a high level position within the company that employed Clark, thus creating a disparity of power; Clark asked Means to stop calling her, when those calls were the only vehicle for the conduct that may be actionable here; and when Clark left her job with Means Investment in 1998, she wanted to escape a situation that she characterizes as abusive and harassing. These factors shed light on the alleged quality of the conduct attributed to Means, and they also bear on the extent of the injuries she claims, which must be of considerable magnitude in order to support relief for a ITED claim. Clark’s evidence of Means’ state of mind (a separate element of a IIED claim) is less than considerable. The record demonstrates that Clark was sometimes receptive to the sexualized nature of his conduct. For example, when Means touched Clark between her legs, Clark responded by rubbing his back. Also, she sometimes participated in employees’ conversations about sexual matters. See DSME {| 30. Further, in their private conversations, Clark sometimes answered his intrusive questions. All of this evidence bears directly on the question of whether any infliction of emotional distress was intentional or knowing, or whether Means was certain that his conduct would cause any such result. However, the same factors noted above (evidence that she asked him to stop calling her and that she cried in his presence when he asked her about having sex with another employee; and his superior position in the business where she worked) provide some support on which Clark could argue that the Means was on notice regarding the impact of his conduct on her. Finally, although this is also (at best for the plaintiff) a close question, the evidence may be seen to support the allegation that Clark must prove at trial, that a normally constituted reasonable person “would be unable to adequately cope with the mental stress engendered by the circumstances of the event.” See Town of Stonington v. Galilean Gospel Temple, 1999 ME 2, J 11, 722 A.2d 1269, 1272. The circumstances that one must consider include the nature of Clark’s relationship with Means, in which there is evidence that Clark sometimes responded favorably toward Means’ suggestive comments and behavior. Nonetheless, the evidence allows an argument that in relation to Means, Clark was in an inferior and therefore vulnerable position in the workplace. There also is evidence that she wanted him to stop, that she quit her job because of Means’ conduct, that she has had difficulty sleeping and has obtained therapeutic intervention. These factors bear on Clark’s personal reaction to Means’s conduct, but they are not irrelevant to the objective standard that Clark must prove. Therefore, on this record, Clark’s claim for ITED may be precarious. See generally Lerman v. Mt. Sinai Cemetary Ass’n, Inc., CV-99-613, 2001 Me.Super. LEXIS 19, at *28-31 (Cumberland Cty, Feb. 28, 2001). However, the narrow issue presented in the motion at bar is whether there exists sufficient evidence to make a factual argument in support of such a claim. In light of that deferential standard of analysis, the court denies Means’ motion as to count 2. Count 3: Negligent Infliction of Emotional Distress (NIED) A plaintiff may pursue a valid claim for NIED only in cases of bystander liability, in cases where the relationship between the parties is one that specifically allows such a claim, and in circumstances where a claim for emotional distress is not subsumed within a claim for a separate tort. Curtis, 2001 ME 158, | 19, 784 A.2d at 26. None of those circumstances exists here, and therefore s a matter of law Clark cannot maintain a claim for NIED. Thus, Means is entitled to summary judgment on this claim. The entry shall be: For the foregoing reasons, defendant Paul B. Means’ motion for summary judgment is granted in part and denied in part. Summary judgment is entered for Means on count 3 of the complaint (negligent infliction of emotional distress). The motion is denied as to counts 1 and 2. Means’ motion to strike is granted in part and denied in part, and the clerk shall incorporate this order on that motion into the docket by reference. A ] : Dated: May 18, 2004 LA fy Justice, Maine Supefior Court ch BARBARA A CLARK - PLAINTIFF SUPERIOR COURT PENOBSCOT, ss. Attorney for: BARBARA A CLARK Docket No BANSC-CV~2001-00170 PAUL A WEEKS LAW OFFICE OF PAUL WEEKS 82 COLUMBIA STREET DOCKET RECORD BANGOR ME 04401 vs PAUL B MEANS - DEFENDANT Attorney for: PAUL B MEANS PAUL CHAIKEN RUDMAN & WINCHELL 84 HARLOW ST PO BOX 1401 BANGOR ME 04402-1401 Attorney for: PAUL B MEANS ANNEMARIE L STOREY RUDMAN & WINCHELL 84 HARLOW ST PO BOX 1401 BANGOR ME 04402-1401 MEANS INVESTMENT CO. INC. - DEFENDANT Attorney for: MEANS INVESTMENT CO. INC. PAUL CHAIKEN RUDMAN & WINCHELL 84 HARLOW ST PO BOX 1401 BANGOR ME 04402-1401 Attorney for: MEANS INVESTMENT co. INC. ANNEMARIE L STOREY RUDMAN & WINCHELL 84 HARLOW ST PO BOX 1401 BANGOR ME 04402-1401 Filing Document: COMPLAINT Minor Case Type: OTHER PERSONAL INJURY TORT Filing Date: 09/05/2001 Docket Events: 05/09/2002 FILING DOCUMENT - COMPLAINT FILED ON 09/05/2001 NOTE - PRIOR ENTRIES IN MANUAL DOCKET ENTERED ON 09/05/2001 25/09/2002 Party(s): BARBARA A CLARK ATTORNEY - RETAINED ENTERED ON 09/05/2001 Plaintiff's Attorney: PAUL A WEEKS 15/09/2002 ATTORNEY - RETAINED ENTERED ON 10/05/2001 Page 1 of 13 Printed on: 05/21/2004 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10807605. Public record. Not legal advice.