Opinion
Civil Action CV-16-505
02-08-2018
JOHN GRIFFIN, individually, and as next friend and parent of PATRICK GRIFFIN, a minor, and DEVDRA GRIFFIN, individually, and as next friend and parent of PATRICK GRIFFIN, a minor, Plaintiffs v. CHEVERUS HIGH SCHOOL OF PORTLAND, and SU-ANNE HAMMOND, individually and as next friend and parent of JAKOB HAMMOND, a minor, and ANDREW HAMMOND, individually, and as next friend and parent of JAKOB HAMMOND, a minor, and JOHN/JANE DOES 1-5, Defendants.
ORDER ON DEFENDANT CHEVERUS HIGH SCHOOL OF PORTLAND'S MOTION FOR SUMMARY JUDGMENT
LANCE E. WALKER, JUSTICE.
Before the Court is Defendant Cheverus High School of Portland's ("Cheverus") motion for summary judgment. For the following reasons, Cheverus's motion is granted in part and denied in part.
I. Background
This case involves a number of disputed facts; however, the following is an account of facts that are not in dispute and are material to the motion under consideration. Cheverus is a private Jesuit high school located in Portland, Maine. (Def.'s S.M.F. ¶ 1.) In May 2016, Plaintiff Patrick Griffin ("Patrick") was enrolled in the 10th grade, and Defendant Jakob Hammond ("Jakob") was enrolled in the 11th grade at Cheverus. (Id. ¶ 2.) Plaintiffs John and Devdra Griffin (collectively, "the Griffins") pay tuition to Cheverus for Patrick to attend school. (Id. ¶ 3.)
Around 4:00 p.m. on May 18, 2016, Patrick and Jakob were on Cheverus's campus watching a javelin event with Meaghan Collins ("Meaghan"), Terryn MacDonald ("Terryn"), and Matthew Thornton ("Matthew"). (Id. ¶¶ 4, 8.) Matthew was not a Cheverus student on that date. (Id. ¶ 5.) The five teenagers left the athletic field and headed toward the school, at which point Patrick and Jakob became engaged in a physical altercation. (Id. ¶ 12.) After Jakob let go of Patrick, Patrick stood up, his eyes rolled into the back of his head, and he fell backwards, striking his head on the ground. (Id. ¶¶ 15, 45.) Patrick had a grand mal seizure after hitting his head on the asphalt. (Pl.'s A.S.M.F. ¶ 99.)
Terryn and Meaghan ran to the athletic field to find the athletic trainers while Matthew called 911. (Def.'s S.M.F. ¶¶ 30-31.) The girls found a math teacher, who gave them Patrick's parents' phone number, and Terryn called Devdra Griffin to tell her about the incident. (Id. ¶¶ 32-34.) Mrs. Griffin did not know Terryn on May 18, 2016. (Pl.'s A.S.M.F. ¶ 89.) Terryn could not tell Mrs. Griffin to which hospital Patrick had been taken, and when Mrs. Griffin attempted to call Cheverus at 4:40 p.m., no one answered her call, despite Cheverus not closing until 5:00 p.m. (Id. ¶¶ 90-93.) Other than for athletics, Cheverus has no written policy in place to deal with emergency situations during the school day. (Id. ¶ 103.) Cheverus also has no written policy advising staff how to notify parents in the event of an injury or accident to their child. (Id. ¶ 104.) Further, Cheverus does not provide after-school supervision to students present on campus who are not participating in an after-school activity. (Def.'s Reply to Pl.'s A.S.M.F. ¶ 94.)
Patrick, accompanied by one of the athletic trainers, was transported to Maine Medical Center for treatment. (Def's S.M.F. ¶¶ 35-36.) The trainer called Mrs. Griffin at 4:49 p.m. to notify her that Patrick had been transported to Maine Medical Center's Emergency Department. (Id. ¶ 37.) Patrick had a second grand mal seizure in the emergency room. (Pl.'s A.S.M.F. ¶ 97.) He remained in the hospital from May 18 until May 21, 2016. (Id. ¶ 100.) A CAT scan showed signs of intracranial bleeding. (Id. ¶ 102.)
At his deposition, Principal Mullen testified that he learned of the incident the following morning, and he met with Jakob and his parents that day to discuss what had happened. (Def.'s S.M.F. ¶¶ 56-57.) Jakob told Principal Mullen that he and Patrick had been horsing around, that Patrick was back pedaling and tripped and fell, and that he had convulsions after hitting his head. (Pl.'s A.S.M.F. ¶¶ 106-108.) Jakob did not tell Principal Mullen that Jakob had Patrick in a headlock or chokehold before he fell. (Id. ¶¶ 109-110.)
On May 26, 2017, John Griffin, Father Collins, and Principal Mullen met at Cheverus to discuss what the school had learned about the incident. (Def.'s S.M.F. ¶ 62.) Dr. Griffin reported that he was told a chokehold had been used and that Patrick did not appear to have attempted to break his fall. (Id. ¶ 64.) Principal Mullen indicated this was new information to him, and the three gentlemen agreed further investigation was needed. (Id. ¶¶ 64-65.) Principal Mullen instructed Assistant Principal Cilley to interview Meaghan and Terryn. (Id. ¶ 67.) Although Principal Mullen informed Dr. Griffin that he did not intend to interview Matthew, Plaintiffs and Matthew went to Cheverus to meet with Father Collins so that Matthew could recite his version of the events. (Id. ¶¶ 73-74.) By June 3, 2016, either Father Collins, Principal Mullen, or Assistant Principal Cilley had interviewed Jakob, Meaghan, Terryn, Matthew, and the athletic trainers and other school personnel present at the scene on the date of the incident. (Id. ¶ 77.) Principal Mullen concluded there was no need to suspend or discipline Jakob. (Id. ¶ 75.)
Plaintiffs filed their Complaint on December 15, 2016, bringing counts against Cheverus for negligence, breach of implied contract, and infliction of emotional distress.
II. Standard of Review
Summary judgment is appropriate if, based on the parties' statements of material facts and the cited record, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); Dyer v. Dep't of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821. "A material fact is one that can affect the outcome of the case. A genuine issue of material fact exists when the factfinder must choose between competing versions of the truth." Dyer, 2008 ME 106, ¶ 14, 951 A.2d 821 (internal citation and quotation marks omitted). When deciding a motion for summary judgment, the court reviews the evidence in the light most favorable to the non-moving party. Id.
If the moving party's motion for summary judgment is properly supported, the burden then shifts to the non-moving party to respond with specific facts indicating a genuine issue for trial in order to avoid summary judgment. M.R. Civ. P. 56(e). When a defendant moves for summary judgment, the plaintiff must respond with evidence establishing a prima facie case. Watt v. UniFirst Corp., 2009 ME 47, ¶ 21, 969 A.2d 897. The evidence proffered by the plaintiff "need not be persuasive at that stage, but the evidence must be sufficient to allow a factfinder to make a factual determination without speculating." Estate of Smith v. Cumberland Cnty., 2013 ME 13, ¶ 19, 60 A.3d 759. If a plaintiff fails to present sufficient evidence, then the defendant is entitled to a summary judgment. Watt, 2009 ME 47, ¶ 21, 969 A.2d 897.
III. Discussion
A. Counts II/VIII: Negligence
A prima facie case of negligence requires a plaintiff to establish the following elements: a duty owed, a breach of that duty, and an injury to the plaintiff that is proximately caused by a breach of that duty. Searles v. Trs. of St. Joseph's Coll., 1997 ME 128, ¶¶ 5, 6, 8, 695 A.2d 1206. At the outset, the parties do not dispute that Cheverus has a special relationship with its students which gives rise to a duty to exercise reasonable care to prevent harm to students caused by third parties while in the school's care, custody, or control. However, such duty is limited by the foreseeability of harm. '"The common-law test of duty is the probability or foreseeability of injury to the plaintiff. The risk reasonably to be perceived within the range of apprehension delineates the duty to be performed and the scope thereof" Fortin v. Roman Catholic Bishop of Portland, 2005 ME 57, ¶ 75, 871 A.2d 1208 (quoting Brewer v. Roosevelt Motor Lodge, 295 A.2d 647, 651 (Me. 1972)).
Cheverus argues that its duty was limited by foreseeability such that it did not owe Patrick a duty to prevent harm under the circumstances in this case. Cheverus essentially frames the duty issue as follows: if Cheverus could not have reasonably foreseen that Jakob would cause physical harm to another student, Cheverus had no duty to protect against such harm. If that were indeed the proper scope of the duty owed by Cheverus, Cheverus would likely be entitled to summary judgment on the negligence claims, as the record is indeed lacking in admissible evidence that Cheverus could foresee that Jakob in particular would harm another student. However, the Court finds this scope is too narrow, as there is no reason to artificially limit the foreseeability of harm to the danger posed by this individual student.
Whether the harm inflicted upon a plaintiff was reasonably foreseeable is a fact question. Shultz v. Gould Academy, 332 A.2d 368, 370 (Me. 1975). In this case, that fact question has not yet been answered. Plaintiffs argue that Cheverus's lack of policy dictating how to handle after-school emergencies is evidence of foreseeability. As noted by Cheverus, this argument misses the mark in defining the scope of Cheverus's duty, as the lack of an after-school emergency policy would not provide evidence that Cheverus could reasonably foresee such emergencies occurring in the first place. Plaintiff expands this argument, however, and generates a fact question by simply contending "[t]he injuries to Patrick Griffin were foreseeable because Cheverus has no policy in place as to after-school activities until the school closes at 5:00 p.m." (Pl.'s Opp'n to Def.'s Mot. Summ. J. 9.) This broader perspective is more on target, as the fact that students were free to move around the campus unsupervised after school (Def.'s Reply to Pl.'s A.S.M.F. ¶ 94) could lead a jury to conclude that the danger that one student could injure another after school was self-evident, and Cheverus should have reasonably foreseen this possibility. See, e.g., Mullins, 449 N.E.2d at 335 & n.7 (threat of criminal acts of third parties was self-evident due to concentration of young women on college campus who are living away from home for the first time). Thus, there is a genuine question of material fact as to whether the harm that befell Patrick was reasonably foreseeable by Cheverus.
In fact, the lack of such policy could arguably provide evidence that Patrick's injuries were not foreseeable; that is, it is conceivable that Cheverus does not have a policy for handling after-school emergencies precisely because Cheverus could not foresee that a student might be injured after school during any non-athletic activity. See, e.g., Stanton v. Univ. of Me. Sys., 2001 ME 96, ¶ 10, 773 A.2d 1045 (the fact that a sexual assault occurring in a college dormitory was foreseeable was evidenced in part by security measures implemented by university); Mullins v. Pine Manor Coll., 389 Mass. 47, 449 N.E.2d 331, 337 (Mass. 1983) (evidence that university took precautions to protect students against criminal acts of third parties supported the inference that such criminal acts were foreseeable).
There is also an issue regarding to whom the duty is owed. Plaintiffs have not addressed this issue in any manner, and Cheverus has only raised the matter in the context of the infliction of emotional distress claim; yet, the question is relevant to the negligence claims as well. The parties agree that Cheverus's duty arises out of a "special relationship between it and its students." (Def.'s Mot. Summ. J. 11; see also Pl.'s Opp'n to Def's Mot. Summ. J. 7 ("Of particular significance to this case is the fact that Cheverus owed a fiduciary duty to Patrick Griffin") (emphasis added).) Plaintiffs have not argued for or directed the Court to any authority supporting the notion that this duty extends to John and Devdra Griffin. Even the language of Plaintiffs' Complaint alleges all of the elements of negligence with regard to Patrick, but only alleges the element of damages with respect to John and Devdra Griffin. Because John and Devdra Griffin have failed to properly allege - and much less support - a claim for negligence, Cheverus is entitled to summary judgment on these counts as to these Plaintiffs. Nonetheless, for the reasons discussed above, summary judgment cannot be granted on Patrick Griffin's negligence claims against Cheverus.
B. Count V: Breach of implied contract
The existence of a contract, express or implied, is a question of fact. Stanton, 2001 ME 96, ¶ 12, 773 A.2d 1045. An implied contract '"refers to that class of obligations which arises from mutual agreement and intent to promise, when the agreement and promise have simply not been expressed in words.'" Id. (quoting 1 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 1:5, at 20 (4th ed. 1990)). '"To establish a legally binding agreement the parties must have mutually assented to be bound by all its material terms; the assent must be manifested in the contract, either expressly or impliedly; and the contract must be sufficiently definite to enable the court to determine its exact meaning and fix exactly the legal liabilities of the parties.'" Id. ¶ 13 (quoting Searles, 1997 ME 128, ¶ 13, 695 A.2d 1206). "For a contract to be enforceable, the parties thereto must have a distinct and common intention which is communicated by each party to the other." Id. (internal quotes omitted).
Plaintiffs' complaint alleges that the Griffins "entered into an agreement with Cheverus wherein Cheverus agreed, for consideration, to accept Patrick Griffin as an enrolled student at its school, " and pursuant to that agreement, Cheverus expressly or impliedly was obligated to provide a safe and secure environment and to take all reasonable steps to insure the protection, safety, and welfare of the minor student. No facts exist in the statements of material facts that generate a genuine issue as to whether an implied contract exists based on the conduct of the parties. The only material fact that evidences the possible existence of a contract is that the Griffins pay tuition to Cheverus for Patrick to attend school. Even if this fact is sufficient to demonstrate an agreement to provide education for consideration, it fails to show any terms to which the parties allegedly agreed regarding Cheverus's obligation to provide a safe environment. In the absence of any evidence of the existence of an implied contract, summary judgment is granted in favor of Cheverus on this count.
C. Count VI: Negligent infliction of emotional distress
Although this count of Plaintiff s Complaint is simply entitled "Infliction of Emotional Distress, " Plaintiffs state a demand for "Judgment against Cheverus for the negligent infliction of emotional distress..." and make no such demand for judgment for intentional infliction of emotional distress. In their opposition memorandum, Plaintiffs recognize that the standard for intentional infliction of emotional distress is "very high ... and, in many cases, very bad conduct has been held to not meet this standard." (Pl.s' Opp'n to Def.'s Mot. Summ. J. 11.) To address any ambiguity as to whether Plaintiffs intended to plead intentional infliction of emotional distress, the Court finds Plaintiffs have not demonstrated any harm that is of sufficient severity to support a claim for intentional infliction of emotional distress.
Plaintiffs argue Cheverus inflicted emotional distress by failing to protect Patrick, failing to properly notify the Griffin's of Patrick's injuries, and failing to properly investigate the incident. This count is only brought by John and Devdra Griffin individually, not on Patrick's behalf. Negligent infliction requires a plaintiff to set forth facts showing that the defendant owed a duty to the plaintiff, the defendant breached that duty, the plaintiff was harmed, and the breach caused the plaintiffs harm. Curtis v. Porter, 2001 ME 158, ¶ 18, 784 A.2d 18. Duty is particularly limited in negligent infliction claims because "[a]lthough 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 to others." Id. A duty to act reasonably to avoid emotional harm to others has only been recognized in bystander liability actions; when there is a special relationship between the defendant and the plaintiff; or, in some instances, when the defendant has committed another tort. Id. ¶ 19.
As discussed above with respect to the negligence claims, John and Devdra Griffin have failed to demonstrate that Cheverus owed them a duty. Cheverus's citation to T.F. v. Spaulding Youth Ctr. is instructive on this issue. See No. 16-cv-37-JL, 2016 U.S. Dist. LEXIS 134501, at * 12-13 (D.N.H. Sept. 29, 2016) (finding schools do not have a special relationship with parents and therefore do not have a duty to inform a parent when a student is being bullied). The Court finds that a special relationship giving rise to a duty to act reasonably to avoid emotional harm does not exist between Cheverus and John and Devdra Griffin. They have also not brought a claim based on bystander liability, nor have they demonstrated that Cheverus committed another tort against them. As such, Cheverus had no duty to avoid inflicting emotional harm on John and Devdra Griffin.
Furthermore, a negligent infliction claim requires proof of severe emotional distress. Curtis, 2001 ME 158, ¶ 20, 784 A.2d 18. The Griffins have not proffered such proof Although the prudence of permitting a student to notify a parent of her child's injuries may be questionable, the Griffins have not demonstrated severe emotional harm resulting from the fact that Terryn was the first person to inform Mrs. Griffin of the incident. Further, although the Griffins are understandably dissatisfied with the results of Cheverus's investigation into the events leading to Patrick's injury, they cannot dispute the fact that every relevant witness was interviewed within two weeks of the date of the incident. The Griffins have put forth no evidence that they were severely emotionally harmed in connection with how the investigation was conducted or the result of the investigation. Even if Cheverus owed and breached a duty to the Griffins, the Griffins have not provided any evidence supporting damages stemming from this cause of action. Cheverus is entitled to summary judgment on this claim.
IV. Conclusion
For the foregoing reasons, Defendant Cheverus High School of Portland's Motion for Summary Judgment is GRANTED in part and DENIED in part. As to Counts II and VIII brought by Plaintiffs John and Devdra Griffin in their individual capacities, judgment is hereby entered in favor of Defendant Cheverus High School of Portland. Judgment is likewise entered in favor of Defendant Cheverus on Counts V and VI. With respect to Counts II and VIII brought by Plaintiffs John and Devdra Griffin as next friends and parents of Patrick Griffin, summary judgment is denied.
The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).