Brown v. Austin

STATE OF MAINE SUPERIOR COURT

ANDROSCOGGIN, ss CIVIL ACTION

DOCKET NO. CV-1~-075

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BECKY ANN BROWN, Personal

Representative of the ESTATE

OF GERARD N. PARENT,

Plaintiff

ORDER ON MOTION

v. FOR ATTACHMENT

CHRISTOPHER S. AUSTIN,

Defendant

Before the court is the motion for attachment filed by plaintiff Becky Ann

Brown, the personal representative of the Estate of Gerard Parent. For the

following reasons, the motion is granted.

BACKGROUND

Plaintiff filed a two-count complaint on May 24, 2013, which included a

wrongful death action and a survival action. The plaintiff alleges the defendant

negligently shot and killed Gerard Parent while hunting. (Compl. <J[ 6.) In his

answer filed June 19, 2013, the defendant pleaded the affirmative defenses of,

among others, comparative fault and intervening or superseding cause.

DISCUSSION

Under Rule 4A, the plaintiff is entitled to attachment if:

[A]fter notice to the defendant and hearing and upon a finding by the

court that it is more likely than not that the plaintiff will recover

judgment, including interest and costs, in an amount equal or greater than

the aggregate sum of the attachment and any liability insurance, bond, or

other security, and any property or credits attached by other writ of

attachment or by trustee process shown by the defendant to be available

to satisfy the judgment.

M.R. Civ. P. 4A(c). The plaintiff shall support a motion for attachment with

affidavits. Id. The affidavits "shall be upon the affiant's own knowledge,

information or belief; and, so far as upon information and belief, shall state that

the affiant believes this information to be true." M.R. Civ. P. 4A(i).

The plaintiff relies on four affiants to support the motion: Michael

Robitaille, a witness to the incident; Ms. Brown, Mr. Parent's wife and his

personal representative; Stephen Wade, the plaintiff's attorney; and Linda

Casacci, the plaintiff's neighbor and a witness to the incident.

1. Attorney Wade's First Affidavit

The defendant contends that Mr. Wade's first affidaviti is improper for

two reasons. First, defendant complains that Attorney Wade does not have

personal knowledge of the information set forth in his affidavit. The plain

language of the rule provides that affidavits "shall be upon the affiant's own

knowledge, information or belie£." M.R. Civ. P. 4A(i). Personal knowledge is not

a requirement for affidavits in support of a motion for attachment. Compare

M.R. Civ. P. 56(e) (affidavits supporting a motion for summary judgment must

be made on personal knowledge) with M.R. Civ. P. 4A(i) (affidavits supporting a

motion for attachment may be made on "information or belie£").

Attorney Wade states in his affidavit that he "ha[s] personal knowledge of

the matters" described in his affidavit. (4/30/13 Wade A££. <J[ 2.) The jurat for his

affidavit similarly states: "Personally appeared the above-named Stephen B.

Wade this 30 day of April, 2013, and made oath that the foregoing statements

made by [him] are true and based upon [his] own personal knowledge."

1

Attorney Wade filed two supplemental affidavits after the defendant's objection to the

motion was filed.

2

(41 30113 Wade A££.) These technical deficiencies should not bar consideration of

Attorney Wade's first affidavit. See Herrick v. Theberge, 474 A.2d 870, 874 (Me.

1984) ("These jurats, though sloppily prepared, do not render the affidavits

fatally defective."). Attorney Wade states in his affidavit that the information

recited is from the Attorney General's charging file and that he believes the

information to be true. (4 I 30 I 13 Wade A££. <[ 7.) It is clear that the material in his

affidavit about which he had no personal knowledge was based on information

or belief and that Attorney Wade believes the information to be true.

Second, defendant argues, because Attorney Wade is plaintiff's attorney,

he will not be able to testify as a witness at trial. There is no requirement that an

affiant who supports a motion for attachment must be eligible to testify at trial.

See Herrick, 474 A.2d at 875 (relying in part on plaintiff's attorney's affidavit).

2. Whether Plaintiff is More Likely Than Not to Recover Judgment

Defendant primarily argues that Mr. Parent's negligence was equal to or

greater than Mr. Austin's, and therefore, plaintiff is not more likely than not to

recover judgment in this case. On 1 I 9 I 13, Mr. Austin was indicted for

manslaughter and unlawful discharge of a firearm near a dwelling. (4130113

Wade A££. <[ 3.) Mr. Austin did not have permission to discharge his weapon

near the home where he fired. (4130/13 Wade A££. <[ 6(b).) Mr. Austin

discharged his rifle very close to the home at 250 Gardiner Road; he was on the

lawn when he fired. (Robitaille A££.<[ 9.)

Mr. Austin saw Mr. Parent outside the Parent house after Mr. Austin fired

his first shot. (4130113 Wade A££.<[ 6(d).) By the time Mr. Austin fired a second

shot, he had lost track of Mr. Parent. (41 30113 Wade A££. <[ 6(e).) After· his

second shot, Mr. Austin saw the "target" drop. (4130113 Wade A££.<[ 6(g).) He

3

ran to the target and discovered Mr. Parent lying on the ground with a gunshot

wound in his chest. (4 I 30 I 13 Wade Aff. <][ 6(g).)

Mr. Parent was wearing an orange hunting vest over his white t-shirt.

(Wade A££. <JI 6(h).) Mr. Parent was not wearing an orange hat, was wearing a

white t-shirt, and had slippers on his feet. (Danas Aff. <J[7(b).)

According to the defendant's expert, Gregory Danas, Mr. Parent was

attempting to "cut in" to shoot the deer Mr. Austin was following. (Danas Aff. <JI

7(a).) Mr. Danas has provided no foundation to qualify him to render this

opinion? Mr. Parent's blood alcohol level was .07% at the time he fired a shot

outside of his house. (Danas Aff. <][ 7(d).)

Mr. Parent had one criminal conviction; Mr. Austin had three criminal

convictions. (Discovery pp; 6-7.) Mr. Parent may have died instantly.

(Discovery p. 7.)

CONCLUSIONS

Hunters are required by law to follow the reasonable and prudent hunter

standard when targeting prey. "A reasonable and prudent hunter ... bases

identification upon obtaining an essentially unobstructed view of the head and

torso of the potential target." 12 M.R.S.A. § 11222(2)(A). It is a crime to discharge

a weapon within 100 yards of a home without the owner's permission. 12

M.R.S.A. § 11209(1). Based on this record, it is more likely than not the plaintiff

will prove that Mr. Austin was more at fault for Mr. Parent's death than was Mr.

Parent and will recover judgment. 3

2

Mr. Danas reviewed the discovery but identifies no specific information. (Danas A££. «J[

6.)

3

The defendant has no insurance available to satisfy any judgment. (4/30/13 Wade A££.

cn:cn: 4-5.)

4

The plaintiff must prove negligence, proximate cause, and the extent of

damages. Reid v. Town of Mount Vernon, 2007 ME 125, <J[ 14, 932 A.2d 539.

Under Maine's wrongful death statute, the plaintiff can recover up to $500,000.00

"for the loss of comfort, society and companionship of the deceased, including

any damages for emotional distress arising from the same facts as those

constituting the underlying claim .... " 18-A M.R.S.A. § 2-804. In addition, she

can recover for pecuniary injuries resulting from the death and for conscious

suffering and death. Id.

The record reflects Mr. Parent was receiving Social Security Disability and

also worked some carpentry jobs for additional income. (Brown Aff. <J[<J[ 6-7.)

Because of the emotional distress resulting from Mr. Parent's death, Ms. Brown is

taking medicine and under a physician's care and is currently unemployed.

(Brown Aff. <J[<J[ 8-9.)

It is difficult to assess damages based on this very sparse record and it is

not possible to assess damages for pecuniary loss or conscious suffering. The

court will authorize an attachment in the amount of $30,000.00 for the loss of

comfort, society and companionship of Mr. Parent, including damages for

emotional distress.

The entry is

Pursuant to Maine Rules of Civil Procedure 4A and 4B, the

Plaintiff's Motion for Attachment is GRANTED. It is more likely

than not that Plaintiff will recover judgment against Defendant in

an amount equal to or greater than the sum of $30,000.00, including

all allowable prejudgment and post-judgment interest, and other

allowable costs.

Plaintiff is awarded prejudgment attachment and attachment on

trustee process against the real and personal property of defendant

in the amount of $30,000.00.

5

There is no liability insurance, bond, or other security or any

property or credits attached by other writ of attachment or by

trustee process shown by the defendant to be available to satisfy

the anticipated judgment in this action.

Plaintiff is ordered and required to comply with all the notice and

service requirements of Maine Rules of Civil Procedure 4A(c) and

4B(c).

..

Date: September 30, 2013

Nancy Mills

Justice, Superior Court

6

GERARD PARENT, ESTATE OF - PLAINTIFF SUPERIOR COURT

ANDROSCOGGIN, ss.

Attorney for: GERARD PARENT, ESTATE OF Docket No AUBSC-CV-2013-00075

STEPHEN WADE - RETAINED

SKELTON TAINTOR & ABBOTT

95 MAIN STREET DOCKET RECORD

AUBURN ME 04210

VS

CHRISTOPHER AUSTIN - DEFENDANT

Attorney for: CHRISTOPHER AUSTIN

SCOTT J LYNCH - RETAINED 06/19/2013

HORNBLOWER LYNCH RABASCO & VANDYKE

261 ASH STREET

PO BOX 116

LEWISTON ME 04243-0116

BECKY BROWN - PERSONAL REPRESENTATIVE

Attorney for: BECKY BROWN

STEPHEN WADE - RETAINED 05/24/2013

SKELTON TAINTOR & ABBOTT

95 MAIN STREET

AUBURN ME 04210

Filing Document: COMPLAINT Minor Case Type: PROPERTY NEGLIGENCE

Filing Date: 05/24/2013

Docket Events:

05/24/2013 FILING DOCUMENT - COMPLAINT FILED ON 05/24/2013

05/24/2013 Party(s): GERARD PARENT, ESTATE OF

ATTORNEY - RETAINED ENTERED ON 05/24/2013

Plaintiff's Attorney: STEPHEN WADE

Party(s): BECKY BROWN

ATTORNEY - RETAINED ENTERED ON 05/24/2013

Attorney: STEPHEN WADE

05/24/2013 CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 05/24/2013

05/24/2013 Party(s): GERARD PARENT, ESTATE OF,BECKY BROWN

MOTION - APPROVAL ATTACH/TRUSTEE PROC FILED WITH AFFIDAVIT ON 05/24/2013

06/03/2013 Party(s): CHRISTOPHER AUSTIN

SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 05/28/2013

CHRISTOPHER AUSTIN

06/03/2013 Party(s): CHRISTOPHER AUSTIN

SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 06/03/2013

06/14/2013 Party(s): CHRISTOPHER AUSTIN

MOTION - MOTION FOR ENLARGEMENT OF TIME FILED ON 06/14/2013

Page 1 of 4 Printed on: 10/02/2013