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[¶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.FOOTNOTES******************************** {*} Lipez, J., sat at oral argument and participated in the initial conference but resigned before this opinion was adopted.
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)