Kim Boivin v. Somatex, Inc.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2022 ME 44
Docket: Oxf-21-273
Argued: May 11, 2022
Decided: August 9, 2022

Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and LAWRENCE JJ.*

KIM BOIVIN

v.

SOMATEX, INC.

HORTON, J.

[¶1] Kim Boivin appeals from a summary judgment entered by the

Superior Court (Oxford County, McKeon, J.) in favor of Somatex, Inc., on Boivin’s

complaint alleging that she suffers from post-traumatic stress disorder (PTSD)

as a result of Somatex’s negligence. The court determined that Somatex was

entitled to judgment as a matter of law because Somatex owed no duty to

Boivin. We affirm the judgment.

* Although Justice Humphrey participated in the appeal, he retired before this opinion was
certified.
2

I. BACKGROUND

[¶2] Viewed in the light most favorable to Boivin as the nonprevailing

party, the following facts are drawn from the parties’ supported statements of

material facts. See, e.g., Toto v. Knowles, 2021 ME 51, ¶ 2, 261 A.3d 233.

[¶3] Boivin worked at the NewPage Paper Company in Rumford, where

she operated large machinery, including 22.5-ton cranes, in her role as a super

calendar crane operator. NewPage hired Somatex, Inc., an overhead crane

company based in Detroit, Maine, to repair one of NewPage’s overhead cranes.

On August 25, 2014, two Somatex employees, Brant Munster and Zack Croft,

were at the NewPage mill to perform the repair.1

[¶4] Boivin was asked by her NewPage supervisor to work with Munster

and Croft while they repaired the crane. To determine why the crane was not

operating correctly, Munster climbed onto the crane to ride it while it was

running. Munster and Croft instructed Boivin to operate the crane while

Munster was on it. Boivin initially refused to do so several times, but she

ultimately agreed.

1 The parties agree that Munster and Croft were acting within the scope of their employment at
all relevant times.
3

[¶5] While Boivin moved the crane, Munster unexpectedly stood up and

was crushed between an overhead truss beam and the moving crane. Munster

was knocked out of the crane and fell approximately thirty feet to the floor,

where he landed in front of Boivin. Munster died as a result of his injuries, and

Boivin sustained PTSD and related mental, emotional, and behavioral disorders

as a result of the incident. Boivin did not know Munster prior to this incident.

[¶6] On March 26, 2021, Boivin filed an amended complaint against

Somatex, alleging that its negligence caused her PTSD. Boivin’s complaint did

not specify whether it was a claim for general negligence or negligent infliction

of emotional distress (NIED).

[¶7] On April 12, 2021, Somatex moved for summary judgment, arguing

that Boivin had failed to establish that it or its employees owed a duty to Boivin

pursuant to one of the limited circumstances where Maine law imposes a duty

to avoid causing mental harm to others. Boivin argued in her opposing

memorandum that this was “a classic and standard negligence case,” noting a

forensic psychiatrist’s supporting affidavit, which stated that “PTSD is both a

physical and mental disorder.” Boivin further argued that she could

nonetheless recover in an action for NIED. In its reply, Somatex contended that
4

Boivin could seek recovery only under a theory of NIED because she had

claimed no physical injury.

[¶8] On August 6, 2021, the court granted Somatex’s motion for

summary judgment. The court determined that, because Boivin’s assertion of

physical injury was based only on “the bare assertion that PTSD is a ‘physical

disorder,’” Boivin had failed to make a prima facie showing of physical injury

and had no cause of action for general negligence. It also determined that

Boivin could not recover for NIED because she was not a direct victim of

Somatex’s negligence and Somatex owed her no independent duty of care.

[¶9] Boivin timely appealed the judgment. M.R. App. P. 2B.

II. DISCUSSION

[¶10] “A party is entitled to a summary judgment if the summary

judgment record, taken in the light most favorable to the nonmoving party,

demonstrates that there is no genuine issue of material fact in dispute and the

moving party would be entitled to a judgment as a matter of law at trial.”

Chartier v. Farm Fam. Life Ins. Co., 2015 ME 29, ¶ 6, 113 A.3d 234. “When the

defendant is the moving party, [it] must establish that there is no genuine

dispute of fact and that the undisputed facts would entitle [it] to judgment as a

matter of law.” Toto, 2021 ME 51, ¶ 9, 261 A.3d 233. A plaintiff opposing
5

summary judgment must in turn present a prima facie case for each challenged

element of her claim.2 See Chartier, 2015 ME 29, ¶ 6, 113 A.3d 234; Corey v.

Norman, Hanson & DeTroy, 1999 ME 196, ¶ 9, 742 A.2d 933. Boivin challenges

the court’s determination that she failed to meet her burden of establishing a

genuine dispute of material fact as to the elements of both duty and physical

injury. We review the court’s grant of Somatex’s motion for summary judgment

de novo, considering the evidence and any reasonable inferences produced

therefrom in the light most favorable to Boivin. See, e.g., Canney v. Strathglass

Holdings, LLC, 2017 ME 64, ¶ 10, 159 A.3d 330.

[¶11] To survive Somatex’s motion for summary judgment and establish

potential liability under a theory of either general negligence or NIED, Boivin

was required to put forth facts demonstrating that Somatex breached a duty of

care. See Quirion v. Geroux, 2008 ME 41, ¶ 9, 942 A.2d 670 (“[T]o survive

summary judgment on an action alleging negligence, the plaintiff must establish

a prima facie case for each of the four elements of negligence: duty, breach,

causation, and damages.” (quotation marks omitted)); Curtis v. Porter,

2 Although a plaintiff opposing summary judgment most frequently bears the burden of making
out her prima facie case as to every element, see, e.g., Addy v. Jenkins, Inc., 2009 ME 46, ¶ 8,
969 A.2d 935; Est. of Smith v. Cumberland Cnty., 2013 ME 13, ¶ 19, 60 A.3d 759, the plaintiff may, in
certain instances, satisfy the burden by putting forth prima facie evidence that establishes a genuine
dispute of material fact as to only those elements that are challenged by a defendant’s factual or legal
argument.
6

2001 ME 158, ¶ 18, 784 A.2d 18 (explaining that the elements of NIED are

similar to those of most negligence torts, though “there is no analogous general

duty to avoid negligently causing emotional harm to others”); see also Devine v.

Roche Biomedical Lab’ys, Inc., 637 A.2d 441, 447 (Me. 1994) (“A plaintiff who

fails to prove that the defendant violated a duty of care owed to the plaintiff

cannot recover, whether the damage is emotional, physical, or economic.”).

“[T]he question of duty is a legal question decided by the court,” Brown v. Delta

Tau Delta, 2015 ME 75, ¶ 9, 118 A.3d 789, and “[t]he presence of injury or

damage is . . . a question of fact,” Est. of Smith v. Cumberland Cnty., 2013 ME 13,

¶ 17, 60 A.3d 759.

A. General Negligence

[¶12] The duty of reasonable care that applies in an action for general

negligence is a “duty to act reasonably to avoid causing physical harm to

others.”3 Curtis, 2001 ME 158, ¶ 18, 784 A.2d 18 (emphasis added); see

Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 6,

cmt. f (Am. L. Inst. 2010) (“[A]n actor ordinarily has a duty to exercise

Under the Restatement (Third) of Torts, “physical harm,” for which damages are recoverable in
3

an action for general negligence, “means the physical impairment of the human body (‘bodily harm’),”
including “physical injury, illness, disease, impairment of bodily function, and death.” Restatement
(Third) of Torts: Liability for Physical and Emotional Harm § 4 (Am. L. Inst. 2010).
7

reasonable care. That is equivalent to saying that an actor is subject to liability

for negligent conduct that causes physical harm.”). Boivin asserts in the

summary judgment record that she suffers from a “physical . . . disorder” and

“physical symptoms of PTSD” and that “PTSD is currently considered by

consensus of current medical and scientific research to be both a physical and

mental disorder.” She supports these assertions by affidavit of a forensic

psychiatrist, who similarly asserts only that PTSD is “both a physical and mental

disorder.” She also relies on her own affidavit in opposition to Somatex’s

motion for summary judgment, which describes her PTSD symptoms as

follows:

I have been unable to work because of PTSD and the sequela[e] of
my PTSD since the incident. My PTSD causes me to experience
pain, suffering, mental anguish, and distress. I frequently
experience images in my mind of the events of August 25, 2014 and
regret that I had agreed to operate the crane with Mr. Munster on
it. I frequently experience night terrors that plague me at night,
leaving me exhausted, confused, and unable to concentrate on daily
personal tasks the next day.4

4 Boivin’s answers to interrogatories describe her experience of sleeplessness as well as “extreme
anxiousness, irritability, depression, stress, guilt, sadness, helplessness, and shame,” explaining that
she no longer enjoys being in groups, including family gatherings. Her interrogatory answers also
assert that she suffers from vertigo that causes dizziness and vomiting, but there is no evidence in
the record that the vertigo was triggered or caused by PTSD. None of these cited portions of her
interrogatory answers are part of the summary judgment record. See M.R. Civ. P. 56(e); Levine v.
R.B.K. Caly Corp., 2001 ME 77, ¶ 9, 770 A.2d 653 (“The court is neither required nor permitted to
independently search a record to find support for facts offered by a party.”). Even so, they do not
lend support to her argument.
8

[¶13] What is lacking in Boivin’s proof submitted in opposition to

Somatex’s summary judgment motion is evidence that Somatex caused her any

physical injury or harm for purposes of her claim that Somatex breached its

general negligence duty.5 Boivin’s assertions do not create a genuine dispute

of material fact as to a physical injury suffered by Boivin, nor do they create an

issue of fact as to PTSD qualifying as a physical injury in her case. See Polk v.

Town of Lubec, 2000 ME 152, ¶ 11, 756 A.2d 510 (“To avoid summary judgment,

a party may not simply rely on conclusory allegations . . . but must identify

specific facts derived from the pleadings, depositions, answers to

interrogatories, admissions and affidavits.” (quotation marks omitted)).

[¶14] This case therefore does not call on us to decide whether the effects

of PTSD can ever qualify as a physical injury that would fall within the scope of

the general negligence duty of care. Because Somatex owed no general duty of

care to avoid causing Boivin the emotional harm that she asserts, the court

5Boivin does not argue or put forth facts asserting that physical manifestations of an emotional
injury meet the legal definition of “physical injury.” We also note that the two are distinct under our
case law; indeed, evidence of the physical manifestations of a plaintiff’s emotional harm was
previously a prerequisite to recovery for that emotional harm. See Wallace v. Coca-Cola Bottling
Plants, Inc., 269 A.2d 117, 121 (Me. 1970), overruled by Culbert v. Sampson’s Supermarkets, Inc.,
444 A.2d 433, 437 (Me. 1982) (“We now reject the notion that the plaintiff must allege or prove . . .
physical manifestations of the distress.”).
9

appropriately entered summary judgment with respect to Boivin’s general

negligence claim against Somatex.

B. Negligent Infliction of Emotional Distress

[¶15] Boivin has made a prima facie showing that she has suffered severe

emotional distress for purposes of her NIED claim against Somatex. However,

the duties that apply in an action for emotional harm are more limited than the

general duty to avoid causing physical harm. Restatement (Third) of Torts:

Liability for Physical and Emotional Harm § 7, cmt. m (Am. L. Inst. 2010); Curtis,

2001 ME 158, ¶ 18, 784 A.2d 18 (“[T]here is no analogous general duty to avoid

negligently causing emotional harm to others.”). This distinction reflects the

fact that our determination of duty for claims of emotional harm “is not

generated by traditional concepts of foreseeability.” Curtis, 2001 ME 158, ¶ 18,

784 A.2d 18. Instead, “we have recognized a duty to act reasonably to avoid

emotional harm to others in very limited circumstances: first, in claims

commonly referred to as bystander liability actions; and second, in

circumstances in which a special relationship exists between the actor and the

person emotionally harmed.”6 Id. ¶ 19.

A plaintiff can also recover damages for emotional distress when the tortfeasor has committed
6

a tort for which such damages are recoverable, such as negligence resulting in physical injury. Curtis
v. Porter, 2001 ME 158, ¶ 19, 784 A.2d 18.
10

[¶16] There is no issue of fact on this record that could generate a duty

to avoid emotional harm under either of these limited circumstances. Boivin

did not assert a close relationship to Munster, nor did she argue that she could

recover as a bystander. See Coward v. Gagne & Son Concrete Blocks, Inc.,

2020 ME 112, ¶ 14, 238 A.3d 254 (explaining that, in order to recover in a

bystander NIED action, a plaintiff must demonstrate, among other factors, a

close relationship with the victim); see also Culbert v. Sampson’s Supermarkets,

Inc., 444 A.2d 433, 435-38 (Me. 1982). Boivin also did not assert or argue the

existence of a special relationship between her and Somatex such that, under

the circumstances, Somatex owed her a duty to avoid causing emotional harm.

Cf. Gammon v. Osteopathic Hosp. of Me., Inc., 534 A.2d 1282, 1283, 1285

(Me. 1987) (son found a severed leg in his father’s belongings); Bolton v. Caine,

584 A.2d 615, 616, 618 (Me. 1990) (patient was misinformed about critical

x-ray findings); Rowe v. Bennett, 514 A.2d 802, 802, 807 (Me. 1986) (patient’s

therapist was sexually involved with the patient’s companion).7

7 Although we have on occasion distinguished between “direct” and “indirect” victims in order to

define the limits of a claim for NIED, see Michaud v. Great N. Nekoosa Corp., 1998 ME 213, ¶ 16,
715 A.2d 955; Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, ¶ 6, 711 A.2d 842; Cameron v. Pepin,
610 A.2d 279, 280-81 (Me. 1992), that characterization was an attempt to distinguish cases where
the plaintiff experiences harm directly due to the defendant’s negligence from those where the
plaintiff’s harm results from witnessing harm to a third person—i.e., bystander cases, see Cameron,
610 A.2d 279, 280-81 (Me. 1992). However, for a plaintiff to qualify as a so-called “direct victim,”
rather than as a bystander, does not automatically impose upon the defendant a duty to avoid
emotional harm; rather, we have recognized a duty to avoid emotional harm “in circumstances in
11

[¶17] Because Boivin did not generate a genuine dispute of material fact

as to whether Somatex breached its general negligence duty of care not to cause

her physical injury or as to whether Somatex owed Boivin an independent duty

under the circumstances to avoid causing emotional harm for purposes of her

NIED claim, the court did not err in determining that Somatex was entitled to

judgment as a matter of law.

The entry is:

Judgment affirmed.

James J. MacAdam, Esq. (orally), MacAdam Jury, P.A., Freeport, for appellant
Kim Boivin

Matthew T. Mehalic, Esq. (orally), and Trevor D. Savage, Esq., Norman, Hanson
& DeTroy, LLC, Portland, for appellee Sometex, Inc.

Oxford County Superior Court docket number CV-2020-49
FOR CLERK REFERENCE ONLY

which a special relationship exists between the actor and the person emotionally harmed.” Curtis,
2001 ME 158, ¶ 19 & n.17, 784 A.2d 18; see also Restatement (Third) of Torts: Liability for Physical
and Emotional Harm § 47, cmt. f (Am. L. Inst. 2012) (disfavoring inquiry into the status of the plaintiff
as a “direct victim” and suggesting instead inquiry into the occurrence of the alleged negligent
conduct as part of “specified categories of activities, undertakings, or relationships in which negligent
conduct is especially likely to cause serious emotional harm”).