Opinion

Ashlock v. Dumaine

Court
Superior Court of Maine
Filed
May 30, 2008
Status
Unpublished
On the bench
Nancy Mills
Cited by
0 cases
Authority
More cited than 34.2%

The opinion

STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss CIVIL ACTION ,

DOCKET NQ. CV-W-345

1Ijf) - KE- N--- >-- / / '

~I

-) .'

JERRY ASHLOCK,

and

BARBARA NICCOLI-HILTZ

and

RODNEY HILTZ,

individually and as next

friends of JANE DOE

Plaintiffs

v. DECISION AND ORDER

CHRISTOPHER 1. DUMAINE

Defendant

Plaintiffs Jerry Ashlock (Jane Doe's father), Barbara Niccoli-Hiltz (Jane Doe's

mother), and Rodney Hiltz (Jane Doe's stepfather) have filed a complaint against the

defendant and 'seek damages as individuals and as next friends of Jane Doe for

negligent infliction of emotional distress, intentional infliction of emotional distress,

breach of fiduciary duty, and punitive damages. The defendant moves pursuant to

M.R. Civ. P. 12(b)(6) to dismiss the individual claims of these plaintiffs.

On this motion to dismiss, the court treats as admitted the material allegations of

the complaint. Plimpton v. Gerrard, 668 A.2d 882,885 (Me. 1995). The question for the

court is whether those allegations create a legally sufficient claim upon which relief can

be granted. Id. For the following reasons, the motion is granted in part and denied in

part.

1. Count I: Negligent Infliction of Emotional Distress

There is no general duty to avoid negligently causing emotional harm to others.

Curtis v. Porter, 2001 ME 158, <[ 18, 784 A.2d 18, 25. The Law Court has "recognized a

duty to act reasonably to avoid emotional harm to others in very limited circumstances:

first, in claims commonly referred to as bystander liability actions; and second, in

circumstances in which a special relationship exists between the actor and the person

emotionally harmed." Id. CJI 19, 784 A.2d at 25.

The scope of the duty in parent bystander liability cases is limited to those

situations in which parents actually witness their child receiving an injury. Cameron v.

Pepin, 610 A.2d 279,284 (Me. 1992). The plaintiffs argue that this case is distinguishable

from Cameron and Curtis because the ongoing sexual relationship between the

defendant and their daughter made them witnesses to the ongoing harms incurred by

their daughter. There is no basis on which to extend the explicit requirement that

parents actually witness the child receiving the injury. While these parents may have

been subjected to witnessing the day-to-day harm of the injury, they did not witness

their daughter receiving the injury itself.

Alternatively, plaintiffs must establish that defendant, as the educator of their

daughter, is under a general obligation for their benefit as parents. Brian R. v.

Watchtower Bible and Tract Society of NY, Inc., 1999 ME 144, CJI 11, 738 A.2d 839, 844.

Plaintiffs note that Brian R. dealt with liability of a third party church, not the

perpetrator, and rely instead on Rowe v. Bennett. That case, however, concerns the

person harmed and not the parents of the person harmed. Rowe v. Bennett, 514 A.2d

802, 807 (Me. 1986). In the absence of case law to the contrary, a teacher has no general

obligation to the parents of his student to avoid negligently causing them emotional

harm.

II. Count II: Intentional Infliction of Emotional Distress

In order to be liable for intentional infliction of emotional distress: (1) defendant

must have intentionally or recklessly inflicted severe emotional distress to the parents

2

or must have been certain or substantially certain that such distress to the parents

would result from his conduct; (2) the conduct must be "so extreme and outrageous as

to exceed all possible bounds of decency and must be regarded as atrocious, utterly

intolerable in a civilized community"; (3) defendant's actions must cause the parents

emotional distress; and (4) the parents emotional distress must be "so severe that no

reasonable person could be expected to endure it." Curtis, <[ 10, 784 A.2d at 22-23

(quoting Champagne v. Mid-Maine Medical Center, 1998 ME 87, CJI IS, 711 A.2d 842, 847

(articulating the standard on a summary judgment motion)). The defendant argues

that there are no allegations that he engaged in sexual acts with plaintiffs' daughter

with the intent to cause them emotional distress or was certain or substantially certain

that such distress to the parents would occur because of his actions.

The plaintiffs' allegations are sufficient to withstand a motion to dismiss. This

court cannot say beyond doubt that the plaintiffs are entitled to no relief under any set

of facts they might prove in support of count II. See Hall v. Board of Environmental

Protection, 498 A.2d 260, 266 (Me. 1985); Champagne, <[CJI 15-16, 711 A.2d at 847.

III. Count II: Breach of Fiduciary Duty

[B]ecause the law does not generally require individuals to act for the benefit of

others, the factual foundations of an alleged fiduciary relationship must be pled

with specificity. Simple recitations of a trusting relationship will not suffice for

identifying a fiduciary duty. In brder to survive a motion to dismiss a clam for

breach of fiduciary duty, the plaintiff must set forth specific facts constituting the

alleged relationship with sufficient particularity to enable the court to determine

whether, if true, such facts could give rise to a fiduciary relationship.

Brian R., CJI 21, 738 A.2d at 846-47. Maine law has not recognized that a teacher owes a

fiduciary duty to the parents of his student. There are no facts alleged that could give

rise to a fiduciary relationship in this case.

3

IV. Count I: Punitive Damages

The plaintiffs argue that defendant's actions were "so outrageous" that malice

against them as injured parties can be implied and an award of punitive damages is

available. Tuttle v. Raymond, 494 A.2d 1353, 1361 (Me. 1985). This determination is

fact specific. Based on the allegations in count II, the court cannot conclude that the

plaintiffs are entitled to no relief based on any set of facts they might prove. Hall, 498

A.2d at 266.

The entry is

Defendant's Motion to Dismiss is GRANTED in part and

DENIED in part.

Plaintiffs Jerry Ashlock, Barbara Niccoli-Hiltz, and Rodney

Hiltz's individual claims in Counts I and III of Plaintiffs'

Complaint are DISMISSED.

Judgment is entered in favor of the Defendant and against

Plaintiffs Jerry Ashlock, Barbara Niccoli-Hiltz, and Rodney

Hiltz on their individual claims in Counts I and III.

The Defendant's Motion to Dismiss Plaintiffs Jerry Ashlock,

Barbara Niccoli-Hiltz, and Rodney Hiltz's individual claims

in Counts II and IV is DENIED.

•

Date: May 30, 2008

ancy Mills

Justice, Superior Court

4

JERRY ASHLOCK - PLAINTIFF OBO SUPERIOR COURT

149 NORTH MAINE STREET KENNEBEC, ss.

NORTH MONMOUTH ME 04265 Docket No AUGSC-CV-2007-00345

Attorney for: JERRY ASHLOCK

MICHELLE ALLOTT - RETAINED 11/26/2007

FARRIS LAW, P.A. DOCKET RECORD

251 WATER STREET

PO BOX 120

GARDINER ME 04345-0120

BARBARA NICCOLI-HILTZ - PLAINTIFF OBO

83 RED TOP DRIVE

MONMOUTH ME 04259

RODNEY HILTZ - PLAINTIFF aBO

83 RED TOP DRIVE

MONMOUTH ME 04259

JANE DOE - MINOR PLAINTIFF

vs

CHRISTOPHER I DUMAINE - DEFENDANT

782 MAIN STREET,

READFIELD ME 04355

Attorney for: CHRISTOPHER I DUMAINE

WALTER MCKEE - RETAINED

LIPMAN & KATZ & MCKEE, PA

227 WATER STREET

PO BOX 1051

AUGUSTA ME 04332-1051

Attorney for: CHRISTOPHER I DUMAINE

JAMES A BILLINGS - RETAINED

LIPMAN & KATZ & MCKEE, PA

227 WATER STREET

PO BOX 1051

AUGUSTA ME 04332-1051

KENNEBEC SAVINGS BANK - TRUSTEE

GARDINER SAVINGS BANK - TRUSTEE

KEY BANK - TRUSTEE

BANGOR SAVINGS BANK - TRUSTEE

BANK OF AMERICA - TRUSTEE

NORTHEAST BANK - TRUSTEE

TD BANKNORTH - TRUSTEE

Filing Document: COMPLAINT Minor Case Type: OTHER PERSONAL INJURY TORT

Filing Date: 11/26/2007

Docket Events:

11/26/2007 FILING DOCUMENT - COMPLAINT FILED ON 11/26/2007

11/26/2007 Party(s): JERRY ASHLOCK

ATTORNEY - RETAINED ENTERED ON 11/26/2007

Plaintiff's Attorney: MICHELLE ALLOTT

11/26/2007 CERTIFY/NOTIFICATION ­ CASE FILE NOTICE SENT ON 11/26/2007

Plaintiff's Attorney: MICHELLE ALLOTT

Page 1 of 5 Printed on: 06/02/2008

AUGSC-CV-2007-00345

DOCKET RECORD

11/26/2007 Party(s): JERRY ASHLOCK,JANE DOE,BARBARA NICCOLI-HILTZ,RODNEY HILTZ

MOTION - OTHER MOTION FILED ON 11/26/2007

Plaintiff's Attorney: MICHELLE ALLOTT

PLAINTIFF'S EX PARTE MOTION TO SEAL WITH PROPOSED ORDER. COPIES GIVEN TO

ATTY. OF RECORD.

11/26/2007 Party(s): JERRY ASHLOCK,JANE DOE,BARBARA NICCOLI-HILTZ, RODNEY HILTZ

MOTION - OTHER MOTION DENIED ON 11/26/2007

DONALD H MARDEN , JUSTICE

PLAINTIFF'S EXPARTE MOTION TO SEAL WITH PROPOSED ORDER. COPIES GIVEN TO

ATTY. OF RECORD.

11/26/2007 Party(s): JERRY ASHLOCK,JANE DOE,BARBARA NICCOLI-HILTZ,RODNEY HILTZ

MOTION - EX PARTE ATTACH/TRUSTEE PROC FILED WITH AFFIDAVIT ON 11/26/2007

Plaintiff's Attorney: MICHELLE ALLOTT

WITH PROPOSED ORDER.

11/26/2007 Party(s): JERRY ASHLOCK,JANE DOE,BARBARA NICCOLI-HILTZ,RODNEY HILTZ

MOTION - EX PARTE ATTACH/TRUSTEE PROC GRANTED ON 11/26/2007

DONALD H MARDEN , JUSTICE

COpy GIVEN IN HAND TO ATTY. OF RECORD.

12/11/2007 Party(s): KENNEBEC SAVINGS BANK

OTHER FILING - TRUSTEE STATEMENT UNDER OATH FILED ON 12/10/2007

S/KELLEY MADORE LOAN OFFICER

12/13/2007 Party(s): GARDINER SAVINGS BANK

OTHER FILING - TRUSTEE STATEMENT UNDER OATH FILED ON 12/12/2007

JYCE ST. AMAND ASST. VICE PRESIDENT

12/13/2007 OTHER FILING - TRUSTEE STATEMENT UNDER OATH FILED ON 12/13/2007

BANK OF AMERICA, SANDRA ALLEN, NORTHEAST LEGAL ORDER PROCESSING.

12/18/2007 OTHER FILING - TRUSTEE STATEMENT UNDER OATH FILED ON 12/17/2007

S/DIANA J.HOLT

12/21/2007 Party(s): CHRISTOPHER I DUMAINE

ATTORNEY - RETAINED ENTERED ON 12/21/2007

Defendant's Attorney: WALTER MCKEE

12/28/2007 OTHER FILING - TRUSTEE STATEMENT UNDER OATH FILED ON 12/13/2007

S/WILLIAM B SWALES, SENIOR V.P. BANGOR SAVINGS BANK

12/29/2007 OTHER FILING - TRUSTEE STATEMENT UNDER OATH FILED ON 12/27/2007

TARA SMITH, TD BANKNORTH

01/09/2008 Party(s): KENNEBEC SAVINGS BANK

SUMMONS/SERVICE - SUMMONS TO TRUSTEE SERVED ON 12/06/2007

SERVICE MADE ON WILLIAM HILL FOR KSB

01/09/2008 Party(s): GARDINER SAVINGS BANK

SUMMONS/SERVICE - SUMMONS TO TRUSTEE SERVED ON 12/06/2007

Page 2 of 5 Printed on: 06/02/2008

AUGSC-CV-2007-00345

DOCKET RECORD

SERVICE MADE ON DONNA YORK (GSB)

01/09/2008 Party(s): TD BANKNORTH

SUMMONS/SERVICE - SUMMONS TO TRUSTEE SERVED ON 12/06/2007

SERVICE MADE ON DAN NICHOLS (TD BANKNORTH)

01/09/2008 Party(s): NORTHEAST BANK

SUMMONS/SERVICE - SUMMONS TO TRUSTEE SERVED ON 12/06/2007

SERVICE MADDE ON LIZA CRENSHAW (NORTHEAST BANK)

01/09/2008 Party(s): BANK OF AMERICA

SUMMONS/SERVICE - SUMMONS TO TRUSTEE SERVED ON 12/06/2007

SERVICE MADE ON BRENT VICNAIRE (BANK OF AMERICA)

01/09/2008 Party(s): BANGOR SAVINGS BANK

SUMMONS/SERVICE - SUMMONS TO TRUSTEE SERVED ON 02/06/2007

SERVICE MADE ON LORI HEYER (BSB)

01/09/2008 Party(s): KEY BANK

SUMMONS/SERVICE - SUMMONS TO TRUSTEE SERVED ON 12/06/2007

SERVICE MADE ON LORI HUDSON (KEY BANK)

01/11/2008 Party(s): CHRISTOPHER I DUMAINE

SUMMONS/SERVICE - ACCEPTANCE OF SERVICE SERVED ON 12/28/2007

ACCEPTED BY WALTER MCKEE, ESQ. FOR C. DUMAINE

01/16/2008 Party(s): CHRISTOPHER I DUMAINE

RESPONSIVE PLEADING - ANSWER & AFFIRMATIVE DEFENSE FILED ON 01/14/2008

Defendant's Attorney: WALTER MCKEE

02/01/2008 DISCOVERY FILING - DISCOVERY DEADLINE ENTERED ON 10/01/2008

ASSIGNMENT - SINGLE JUDGE/JUSTICE ASSIGNED TO JUSTICE ON 01/18/2008

NANCY MILLS , JUSTICE

02/01/2008 ORDER - SCHEDULING ORDER ENTERED ON 01/18/2008

NANCY MILLS , JUSTICE

ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO

PARTIES/COUNSEL

02/07/2008 party(s): CHRISTOPHER I DUMAINE

OTHER FILING - ENTRY OF APPEARANCE FILED ON 01/17/2008

Defendant's Attorney: JAMES A BILLINGS

02/07/2008 party(s): CHRISTOPHER I DUMAINE

ATTORNEY - RETAINED ENTERED ON 01/17/2008

Defendant's Attorney: JAMES A BILLINGS

02/07/2008 party(s): CHRISTOPHER I DUMAINE

MOTION - DISSOLVE ATTACH/TRUSTEE PROC FILED WITH AFFIDAVIT ON 02/05/2008

Defendant's Attorney: WALTER MCKEE

DEFT'S MOTION TO DISSOLVE EX PARTE ATTACHMENT AND TRUSTEE PROCESS AND INCORPORATED

MEMORANDUM OF LAW, AFFIDAVITS OF WALTER F. MCKEE AND JAMES A. BILLINGS, REQUEST FOR

Page 3 of 5 Printed on: 06/02/2008

AUGSC-CV-2007-00345

DOCKET RECORD

HEARING, PROPOSED ORDER.

02/07/2008 Party(s): CHRISTOPHER I DUMAINE

MOTION - MOTION TO DISMISS FILED ON 02/05/2008

Defendant's Attorney: WALTER MCKEE

DEFT'S MOTION TO DISMISS AND INCORPORATED MEMORANDUM OF LAW, REQUEST FOR HEARING, PROPOSED

ORDER.

02/07/2008 Party(s): CHRISTOPHER I DUMAINE

DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 02/05/2008

Defendant's Attorney: WALTER MCKEE

NOTICE OF DEPOSITION OF LEIGHANN ASHLOCK, SERVED ON G. FARRIS, ESQ. ON 02/05/08.

02/27/2008 Party(s): JERRY ASHLOCK,BARBARA NICCOLI-HILTZ, RODNEY HILTZ

OTHER FILING - OPPOSING MEMORANDUM FILED ON 02/26/2008

Plaintiff's Attorney: MICHELLE ALLOTT

PLTFS' OPPOSITION TO DEFT'S MOTION TO DISMISS, W/ INCORPORATED MEMORANDUM OF LAW.

02/27/2008 Party(s): JERRY ASHLOCK,BARBARA NICCOLI-HILTZ,RODNEY HILTZ

OTHER FILING - OPPOSING MEMORANDUM FILED ON 02/26/2008

Plaintiff's Attorney: MICHELLE ALLOTT

PLTFS' OPPOSITION TO DEFT'S MOTION TO DISSOLVE EX PARTE ATTACHMENT AND TRUSTEE PROCESS W/

INCORPORATED MEMORANDUM OF LAW.

03/06/2008 Party(s): CHRISTOPHER I DUMAINE

OTHER FILING - REPLY MEMORANDUM FILED ON 03/04/2008

Defendant's Attorney: JAMES A BILLINGS

DEFT'S REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

03/11/2008 Party(s): JERRY ASHLOCK,JANE DOE, BARBARA NICCOLI-HILTZ,RODNEY HILTZ

MOTION - EX PARTE ATTACH/TRUSTEE PROC VACATED ON 02/29/2008

NANCY MILLS , JUSTICE

03/11/2008 ORDER - ATTACHMENT & TRUSTEE PROCESS ENTERED ON 02/29/2008

NANCY MILLS, JUSTICE

COPY TO PARTIES/COUNSEL. THE EX PARTE ORDER APPROVING ATTACHMENT & TRUSTEE PROCESS DATED

11/26/07 IS VACATED; ATTACHMENT & TRUSTEE PROCESS IN THE AMT OF $50,000 ARE APPROVED,

PROVIDED THAT THE FIRST $100 OF DEMAND BANK ACCOUNTS HELD BY ANY ONE TRUSTEE SHALL BE

EXEMPT FROM TRUSTEE PROCESS PURSUANT TO THIS ORDER.

03/11/2008 Party(s): CHRISTOPHER I DUMAINE

MOTION - DISSOLVE ATTACH/TRUSTEE PROC GRANTED ON 02/29/2008

NANCY MILLS , JUSTICE

COPIES TO PARTIES/COUNSEL ORDER APPROVING

ATTACHMENT AND TRUSTEE PROCESS, 02/29/08

05/13/2008 Party(s): JERRY ASHLOCK, BARBARA NICCOLI-HILTZ,RODNEY HILTZ

MOTION - MOTION TO DISMISS FILED ON 05/07/2008

Plaintiff's Attorney: MICHELLE ALLOTT

PARTIAL MOTION TO DISMISS. PROPOSED ORDER.

OS/29/2008 Party(s): JERRY ASHLOCK, BARBARA NICCOLI-HILTZ, RODNEY HILTZ

MOTION - MOTION STAY OF PROCEEDINGS FILED ON OS/23/2008

Page 4 of 5 Printed on: 06/02/2008

AUGSC-CV-2007-00345

DOCKET RECORD

Plaintiff·s Attorney: MICHELLE ALLOTT

MOTIONFOR STAY OF ALL DEADLINES. PROPOSED ORDERS.

06/02/2008 Party(s): JERRY ASHLOCK,BARBARA NICCOLI-HILTZ,RODNEY HILTZ

MOTION - MOTION TO DISMISS GRANTED ON 05/30/2008

NANCY MILLS , JUSTICE

COpy TO ATTYS ALLOTT AND MCKEE

06/02/2008 Party(s): JERRY ASHLOCK,BARBARA NICCOLI-HILTZ,RODNEY HILTZ

MOTION - MOTION STAY OF PROCEEDINGS GRANTED ON 05/30/2008

NANCY MILLS , JUSTICE

COpy TO ATTYS ALLOTT AND MCKEE

06/02/2008 FINDING - JUDGMENT DETERMINATION ENTERED ON 05/30/2008

NANCY MILLS , JUSTICE

ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COpy TO ATTYS

ALLOTT AND MCKEE

ORDER - COURT JUDGMENT ENTERED ON 05/30/2008

NANCY MILLS, JUSTICE

ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPY TO ATTYS

ALLOTT AND MCKEE

Judgment entered on COUNT 1 for CHRISTOPHER I DUMAINE and against JERRY ASHLOCK, BARBARA

NICCOLI-HILTZ, RODNEY HILTZ.

Judgment entered on COUNT 3 for CHRISTOPHER I DUMAINE and against JERRY ASHLOCK, BARBARA

NICCOLI-HILTZ, RODNEY HILTZ.

06/02/2008 Party(s): CHRISTOPHER I DUMAINE

MOTION - MOTION TO DISMISS GRANTED ON 05/30/2008

NANCY MILLS, JUSTICE

COUNTS I AND III

06/02/2008 Party(s): CHRISTOPHER I DUMAINE

MOTION - MOTION TO DISMISS DENIED ON 05/30/2008

NANCY MILLS , JUSTICE

COUNTS II AND IV

A TRUE COPY

ATTEST:

Clerk

Page 5 of 5 Printed on: 06/02/2008

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.