238 A.3d 254
Me.2020Background
- On May 21, 2014 a one-ton load of twenty-foot rebar being unloaded by Gagne & Son fell on Philip Coward at his father Thomas’s home; Philip died on scene.
- Thomas was about 100 feet away, heard a loud bang and screaming, ran to the area "within seconds," found Philip crushed and bleeding, and performed mouth-to-mouth for 30–50 minutes; EMTs pronounced Philip dead on arrival.
- Thomas and his wife Lisa sued Gagne & Son; Thomas asserted a bystander negligent infliction of emotional distress (NIED) claim and Lisa asserted a derivative loss-of-consortium claim.
- At summary judgment the trial court held Thomas had not "contemporaneously perceived" the accident because he did not see or understand the injury at the exact moment of impact, and entered judgment for defendant; Lisa’s claim was dismissed as derivative.
- On appeal the Maine Supreme Judicial Court considered whether "contemporaneous perception" requires direct visual observation at the precise moment of injury or may include nonvisual perception (e.g., hearing) followed almost immediately by seeing the victim’s injuries.
- The court vacated summary judgment, holding contemporaneous perception can include sensory perception (not only sight) followed in the immediate aftermath by observation of the victim; remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What is required for the "contemporaneous perception" element of a bystander NIED claim? | "Contemporaneous perception" may be satisfied by perceiving the injury-producing event through any sense (here, hearing) and arriving seconds later to witness the immediate aftermath. | Requires direct visual witnessing of the injury-producing event and immediate awareness that it caused injury. | Contemporaneous perception includes sensory perception (including hearing) of the event and an immediate observation of the victim’s injuries in the event's immediate aftermath; no strict bright-line time, but seconds is sufficient. |
| Did Thomas meet the contemporaneous-perception requirement? | Thomas heard the crash and screams, arrived within seconds, saw Philip severely injured and attempted resuscitation—this satisfies the contemporaneous-perception factor. | Thomas did not see or understand the injury at the instant it occurred, so he did not contemporaneously perceive the accident. | Viewing the record in Thomas’s favor, his hearing the accident and arriving seconds later to witness the injuries meets the contemporaneous-perception requirement; summary judgment was vacated and matter remanded. |
Key Cases Cited
- Culbert v. Sampson’s Supermarkets, Inc., 444 A.2d 433 (adopted the Dillon three-factor test for bystander NIED)
- Cameron v. Pepin, 610 A.2d 279 (reaffirmed Culbert and emphasized the contemporaneous-perception requirement)
- Dillon v. Legg, 441 P.2d 912 (origin of the three-factor foreseeability framework)
- Thing v. La Chusa, 771 P.2d 814 (California case articulating a narrower contemporaneous-awareness rule discussed by the court)
- Groves v. Taylor, 729 N.E.2d 569 (aural perception of a crash followed seconds later by seeing injured sibling permitted recovery)
- Corso v. Merrill, 406 A.2d 300 (hearing the impact and immediately seeing the injured child sufficient for NIED)
- Eskin v. Bartee, 262 S.W.3d 727 (Tenn. rule allowing recovery if plaintiff arrives while scene remains essentially unchanged — court declined to adopt this broad rule)
- Purty v. Kennebec Valley Med. Ctr., 551 A.2d 858 (recognized contemporaneous involvement at scene over an extended immediate period can support NIED)