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Davis v. Currier
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision: 	1997 ME 199
Docket: 	Fra-96-732
Argued:	September 4, 1997
Decided:	October 7, 1997

Panel:		WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.



JOSIE DAVIS v. BRUCE CURRIER et al.
RUDMAN, J.

	[¶1]  Josie Davis appeals from the judgments entered in the Superior
Court (Franklin County, Delahanty, J.) following a jury verdict in favor of
Edward Tyler and Bruce Currier in her personal injury action and from the
post-judgment order denying her motions for a new trial and for judgment
as a matter of law on Currier's malicious prosecution counterclaim.  Tyler
cross-appeals from the post-judgment order granting Davis's motion for
judgment as a matter of law on his intentional infliction of emotional
distress counterclaim.  We affirm the judgments.
	[¶2]  At approximately 1:00 a.m. on October 17, 1993, Davis sustained
a broken leg when she attempted to assist her then-husband, Scott Davis,
who was fistfighting Tyler in a parking lot adjacent to Anthony's Lounge in
Farmington.  Currier physically prevented spectators from approaching and
interfering in the brawl.  Davis identified Currier to the police as her
assailant, and he was indicted for aggravated assault.{1}  Tyler was indicted for
the aggravated assault of Davis's husband.{2}  After both men were found not
guilty, Davis initiated this civil suit.  
I.
	[¶3]  We review the denial of a motion for judgment as a matter of law
to "determine if any reasonable view of the evidence and those inferences
that are justifiably drawn from that evidence supports the jury verdict." 
Townsend v. Chute Chem. Co., 1997 ME 46, ¶ 8, 691 A.2d 199, 202
(quoting Bates v. Anderson, 614 A.2d 551, 552 (Me. 1992)).  If the record
provides a rational basis for the jury's determination, we will not substitute
our judgment for that of the jury.  Cf. Gilmore v. Central Maine Power Co.,
665 A.2d 666, 670 (Me. 1995) (stating that a jury's assessment of damages
that has "some rational basis" in the record will not be disturbed).
II.
	[¶4]  To prevail on a malicious prosecution claim, a party must prove
that his or her adversary instituted or continued an action against him or
her with malice and without probable cause and that the party received a
favorable termination of the proceedings.  Gray v. State, 624 A.2d 479, 483
(Me. 1993).  A reasonable view of the evidence presented at trial supports
the jury's determination that Davis lacked probable cause to believe that
Currier broke her leg.  First, at the time of Davis's injury, the parking lot was
poorly lit, crowded, and chaotic.  Second, Davis's identification of Currier as
her assailant was based not upon any personal knowledge of him but rather
upon her impression that her assailant resembled professional wrestler Lex
Luger and her husband's subsequent determination that Currier resembled
Lex Luger.  Third, another individual apologized to Davis's husband for
causing Davis's injury.  Thus the trial court did not err by denying Davis's
motion for judgment as a matter of law.{3}
III.
	[¶5]  To avoid a judgment as a matter of law for Davis on his
intentional infliction of emotional distress claim, Tyler "must establish a
prima facie case for each element of that claim."  Rippett v. Bemis, 672 A.2d
82, 85 (Me. 1996).  To recover for intentional infliction of emotional
distress, a party must show:  (i) either that the defendant intentionally or
recklessly inflicted severe emotional distress or that his or her conduct was
substantially certain to inflict severe emotional distress; (ii) that the
defendant's 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"; (iii) that the defendant's conduct
caused the plaintiff's emotional distress; and (iv) that the emotional distress
was so severe that an ordinary person reasonably could not be expected to
endure it.  Colford v. Chubb Life Ins. Co. of Am., 687 A.2d 609, 616 (Me.
1996) (citations omitted), cert. denied, 117 S.Ct. 2433 (1997).
	[¶6] Tyler's allegation that Davis's initiation of a negligence suit against
him constitutes extreme and outrageous conduct on her part is wholly
without merit.  We have previously noted that a party cannot be liable for
intentional infliction of emotional distress for insisting on his or her rights
in a permissible manner.  Chiapetta v. Lumbermens Mut. Ins. Co., 583 A.2d
198, 201 (Me. 1990) (citing Restatement (Second) of Torts § 46 cmt. g
(1965)).  We are not prepared to recognize that the tort of intentional
infliction of emotional distress is available to a party outraged by the filing of
a lawsuit against it.  If a lawsuit has been initiated without a legitimate basis
and has terminated unsuccessfully, then the tort of malicious prosecution
may be invoked for redress.  See FDIC v. S. Prawer & Co., 829 F. Supp. 439,
449 (D. Me. 1993) (noting that the tort of intentional infliction of emotional
distress is not designed to protect parties "from the vicissitudes of the
litigation process"); cf. Vogt v. Churchill, 1997 ME 5, ¶ 1, 687 A.2d 961,
961 (stating that parties possess an absolute privilege with respect to
statements made in the course of a judicial proceeding).  The trial court did
not err when it granted Davis a judgment as a matter of law on Tyler's claim
for intentional infliction of emotional distress.
IV.
	[¶7]  We review the denial of a motion for a new trial for a "clear and
manifest abuse of discretion."  LeClair v. Commercial Union Ins. Co., 679
A.2d 90, 92 (Me. 1996) (quoting McCain Foods, Inc. v. Gervais, 657 A.2d
782, 783 (Me. 1995)).  The trial court should deny a motion for a new trial
"'unless it is reasonably clear that prejudicial error has been committed or
that substantial justice has not been done.'"  Boehmer v. LeBoeuf, 650 A.2d
1336, 1340 (Me. 1994) (quoting Cates v. Farrington, 423 A.2d 539, 541
(Me. 1980)).  
	[¶8]  Davis argues that Tyler committed a discovery violation when he
failed to produce a witness's written notes, the existence of which Tyler was
aware of at least twenty-four hours before the witness testified.  The factual
substance of the notes previously had been disclosed to Davis in an
interrogatory response.   Even if Tyler's failure to disclose the existence of
written notes did violate M.R. Civ. P. 26(e), his interrogatory response
informed Davis of their substance well in advance of trial.  Thus the trial
court did not exceed the bounds of its discretion by declining to order a
new trial as a sanction for the alleged discovery violation.  
 	The entry is:
Judgments affirmed.
Attorney for plaintiff:

Ronald J. Cullenberg, Esq., (orally) P O Box 70 Farmington, ME 04938 Attorneys for defendants: David M. Sanders, Esq., (orally) P O Box 271 Livermore Falls, ME 04254-0271 (for Bruce Currier) William Maselli, Esq., (orally) 98 Court Street Auburn, ME 04210 (for Edward Tyler)
FOOTNOTES******************************** {1} Currier was indicted under 17-A M.R.S.A. § 208(1)(A) (1983), which states, in part: 1. A person is guilty of aggravated assault if he intentionally, knowingly, or recklessly causes: A. Serious bodily injury to another; or . . . {2} Tyler was indicted under 17-A M.R.S.A. § 208(1)(C) (1983), which states, in part: 1. A person is guilty of aggravated assault if he intentionally, knowingly, or recklessly causes: . . . C. Bodily injury to another under circumstances manifesting extreme indifference to the value of human life. . . . {3} Only because the issue was never raised, we do not address the propriety of counterclaiming for malicious prosecution in the very action which provides the basis for the malicious prosecution claim. See Gray, 624 A.2d at 483.