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Michaud v. Great Northern, part 2
[¶14]  Michaud filed the present complaint for negligent infliction of
emotional distress.  He alleged that Great Northern and Colwell each owed
him a duty of care to protect him from psychic injury.  Both defendants filed
motions for summary judgment.  In granting the motions, the court
concluded as a matter of law that defendants owed Michaud no duty to
protect him from psychic injury because (1) he was not within the protected
class of indirect victims, (2) that no independent duty of care is owed a
rescuer, and (3) even if a derivative duty of care flows from any duty owed to
the original divers, Michaud could not recover for purely psychic injuries. 
Michaud now appeals from this judgment.
	[¶15] The determination of the extent of the duty owed in claims for
negligent infliction of emotional distress involves striking a fair balance
between the need to compensate foreseeable psychic injuries and the risk of
imposing limitless liability. See Cameron v. Pepin, 610 A.2d 279, 283 (Me.
1992).  Whether a plaintiff is owed a duty of care is a matter of law, see
Denman v. Peoples Heritage Bank, Inc., 1998 ME 12, ¶ 4, 704 A.2d 411,
413; but as we noted in Cameron, the existence and scope of a defendant's
duty in claims of negligent infliction of emotional distress, "is not entirely a
question of foreseeable risk of harm but is in turn dependent on recognizing
and weighing relevant policy implications." Cameron v. Pepin, 610 A.2d at
282; Trusiani v. Cumberland and York Distributors, Inc., 538 A.2d 258, 261
(Me. 1988). 
	[¶16]  In the past, we have recognized that the "victim of negligent
conduct has a legally protected interest in his psychic health, with different
rules governing recovery dependent on whether the plaintiff is
characterized as a 'direct' victim rather than an 'indirect' victim."  Cameron
v. Pepin, 610 A.2d at 280-81.  We recently described the distinction
between direct and indirect victims in the following terms: 
A plaintiff is a direct victim if she was the object of the
defendant's negligent conduct.  See, e.g., Gammon v.
Osteopathic Hosp. Of Me., Inc., 534 A.2d 1282 (Me. 1987)
(plaintiff who discovered severed human leg in bag that he
thought contained his recently deceased father's belongings was
direct victim of hospital's and funeral home's alleged negligent
conduct).  In contrast, a plaintiff is an indirect victim if the
claimed negligence underlying the NIED claim was directed not
at her, but instead at someone she loved and to whom she was
close.  See Nelson v. Flanagan, 677 A.2d 545, 547 n.3 (Me.
1996); see, e.g., Culbert v. Sampson's Supermarkets, Inc., 444
A.2d 433, 438 (Me. 1982) (mother who observed her child
choking on a foreign object in baby food manufactured by
defendant was indirect victim of defendant's negligent conduct).

Champagne v. Mid-Maine Medical Center, 1998 ME 87, ¶ 6, 711 A.2d 842,
844.
The "direct victim" claiming negligent infliction of emotional distress may
recover when the defendant's negligence was directed at the victim;
namely, that the defendant owed the victim an independent duty of care and
that the defendant should have foreseen that mental distress would result
from his negligence.  See Gammon v. Osteopathic Hospital of Maine, Inc.,
534 A.2d 1282, 1285 (Me. 1987).  In contrast, the "indirect victim" who
witnesses another person being harmed by a tortfeasor's negligent act may
recover for serious mental distress only if "[t]he psychic injury may be
deemed foreseeable when the plaintiff bystander was present at the scene of
the accident, suffered mental distress as a result of observing the accident
and ensuing danger to the victim, and was closely related to the victim." 
Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433, 438 (Me. 1982).  
	[¶17]  Michaud seeks recovery solely on the theory of negligent
infliction of emotional distress -- he claims no physical injury.  Accordingly,
he must qualify as either a direct or indirect victim of the alleged
negligence.  He is unable to satisfy either criteria.  First, the absence of a
family relationship with the trapped divers precludes his claim as an
indirect victim, a conclusion that he does not dispute.  See Cameron v.
Pepin, 610 A.2d at 284-85.  Second, defendants' alleged negligence was
directed at the two divers trapped in the maintenance gate.  Michaud was
not the object of this alleged negligent conduct.  See Champagne v. Mid-
Maine Medical Center, 1998 ME 87, ¶ 6, 711     A.2d at 844; Nelson v.
Flanagan, 677 A.2d 545, 547 n.3 (Me. 1996).  
	[¶18]  To avoid the obvious implication of existing law, Michaud asks
that we recognize the "rescue doctrine," arguing that defendants would
then owe him a direct duty of care to avoid the infliction of emotional
distress even if the underlying act of negligence was not directed at him. 
The duty of care would be derived from the duty owed to the imperiled
victim.  In essence, Michaud argues that his status as a rescuer should lead
us to recognize a broader duty of care than that owed to a bystander.
	[¶19] Although generally there is no duty to lend personal assistance,
in an effort to encourage rescue efforts and avoid the assertion of a
contributory negligence defense against a plaintiff-rescuer, some
jurisdictions have adopted a "rescue doctrine" with respect to claims for
physical injuries.  In principle, those courts hold that when a defendant
creates the peril facing a victim, the defendant will be liable to a rescuer for
the physical injuries incurred during the rescue attempt.  Note, Tort Law -
The Application Of The Rescue Doctrine Under Comparative Negligence
Principles, 23 N.M.L.Rev. 349, 350 (1993). The rationale for the "rescue
doctrine" was articulated by Justice Cardozo in the following terms: "The
wrong that imperils life is a wrong to the imperiled victim; it is a wrong also
to his rescuer."  Wagner v. International Ry. Co., 133 N.E. 437, 437 (N.Y.
1921).  By negligently creating the peril, a defendant is deemed to have
issued an implied invitation to render assistance and responsibility for harm
that results from such invitation is assigned to the defendant.
	[¶20]  In Hatch v. Globe Laundry Co., 132 Me. 379 (1934), we rejected
the theory that, as a matter of law, rescuers are precluded from recovery on
the basis that they voluntarily placed themselves in danger.  We have never
adopted the rescue doctrine, and in Hatch we simply recognized that issues
of causation are implicated when a party seeks to rescue a victim imperiled
by the defendant's negligent conduct.  The rescue doctrine has never been
applied in any jurisdiction in a case involving purely psychic injuries.  Were
we to adopt it, this would not end any analysis in the present case.  Even if
the rescue doctrine gives rise to an independent duty of care owed to the
rescuer and emotional distress is a foreseeable result of the defendants'
negligence, "policy considerations may dictate a cause of action should not
be sanctioned no matter how foreseeable the risk." Cameron v. Pepin, 610
A.2d 279, 282 (Me. 1992).  In claims for the negligent infliction of
emotional distress, we must avoid inappropriately shifting the risk of loss
and assigning liability disproportionate to culpability.  We do not minimize
the heroic and selfless acts of a rescuer, but such a person is not a "direct
victim" pursuant to Maine law.  To create a special exception for a rescuer
in the context of a claim for emotional distress would expand liability out of
proportion with culpability.  See Cameron v. Pepin, 610 A.2d 279, 282 (Me.
1992).
	The entry is:
			Judgment affirmed.

Attorneys for plaintiff: Peter B. Bickerman, Esq. (orally) P O Box 897 Augusta, ME 04332-0897 Robert J. Stolt, Esq. Lipman & Katz P O Box 1051 Augusta, ME 04332-1051 Attorneys for defendants: Terry A. Fralich, Esq., (orally) Peter J. DeTroy Norman, Hanson & DeTroy P O Box 4600 Portland, ME 04112-4600 (for Great Northern Nekoosa) Elizabeth A. Olivier, Esq., (orally) Bruce C. Gerrity, Esq. Preti, Flaherty, Beliveau & Pachios, LLC P O Box 9546 Portland, ME 04112-9546 (for Colwell Construction) Attorney for amicus curiae: Paul F. Macri, Esq. P O Box 961 Lewiston, ME 04243-0961 (for Richard Bourgeois)
FOOTNOTES******************************** {*} Lipez, J., sat at oral argument and participated in the initial conference but resigned before this opinion was adopted.
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