Opinion
Civil Action CV-2020-077
09-06-2022
EMMA LEVESQUE, Plaintiff, v. RENEE GORE and JOHN GORE, Defendants.
ORDER ON PLAINTIFF'S MOTION FOR ATTACHEMENT AND ATTACHMENT ON TRUSTEE PROCESS
MaryGay Kennedy, Justice
Before the Court is Plaintiff Emma Levesque's Motion for Attachment and Attachment on Trustee Process. Pursuant to Maine Rules of Civil Procedure 4A and 4B, Plaintiff seeks an order approving prejudgment attachment and trustee process in the amount of $500,000. Defendants Renee Gore and John Gore (collectively, "Defendants") oppose the motion. For the following reasons, the Court denies Plaintiff's Motion for Attachment and Attachment on Trustee Process.
A previously filed motion for attachment was withdrawn by Plaintiff before the Court ruled on it.
Several times in her motion, Plaintiff requests attachment of "six hundred thousand dollars ($500,000)." Generally, a written number controls when a numeral and written number conflict. See, e.g., 11 M.R.S. § 31114 ("If an instrument contains contradictory terms,... words prevail over numbers."); Fetch Interactive TV LLC v. Touchstream Techs. Inc., No. 2017-0637-SG, 2019 Del. Ch. LEXIS 1, at *55 (Jan. 2, 2019). However, Plaintiff's proposed order unambiguously requests attachment in the amount of $500,000. Accordingly, the Court resolves the conflict in favor of the numeral, $500,000.
I. Facts
This case arises out of Plaintiff's overnight visit to Defendants' home in September 2016, during which Plaintiff was allegedly injured by Defendants' daughter, Mariah Gore. Although Plaintiff's Complaint consists of two counts, Plaintiff proceeds only on her negligent supervision claim for the purposes of the pending motion. (Pl.'s Supp'g Mem. 5.) The following is drawn from the affidavits, depositions, and evidence properly attached to affidavits submitted by the parties.
On August 24, 2016, Renee Freudenberger's daughter, Amanda, visited Defendants' home in Windham. (R. Freudenberger Aff. ¶ 3.) Although she was expected to stay overnight, Amanda called her mother around 11:00 p.m. and asked to come home. (R. Freudenberger Aff. ¶ 4.)
On August 28, Amanda told Ms. Freudenberger that Mariah had hurt her while she visited Defendants' home. (R. Freudenberger Aff. ¶ 5.) Ms. Freudenberger called Ms. Gore and left a voicemail message explaining that Amanda had told her that Mariah had hurt Amanda and tried to remove Amanda's clothing. (R. Freudenberger Aff. ¶ 8.) On August 29, Defendants called Ms. Freudenberger to report that they had spoken to Mariah, who denied Amanda's accusations. (R. Freudenberger Aff. ¶ 12.) Ms. Freudenberger informed Defendants that Amanda and Mariah had exchanged text messages on August 25, 2016. (R. Freudenberger Aff. ¶ 13.) She told Defendants that Mariah, via text message, asked if Amanda had left early because of her, to which Amanda responded "yes." (R. Freudenberger Aff. ¶ 13.) Ms. Freudenberger forwarded the text messages to Defendants on August 29. (R. Freudenberger Aff. ¶ 14.)
The Court will consider this statement only as to the issue of whether Defendants had notice of Mariah being accused of assaulting a minor at their home, not for its truth.
When Defendants asked Mariah whether Amanda's allegations were true, Mariah denied it. (R. Gore Dep. 41:14-25.) Ms. Gore informed Mariah's counselor of Amanda's accusations. (R. Gore Aff. ¶ 2.) Defendants were not advised that Mariah should not have sleepovers. (R. Gore Aff. ¶ 3.)
Plaintiff was invited to stay overnight at Defendant's home on September 10,2016. (Jennifer Levesque Aff. ¶ 4.) Plaintiff was fifteen years old at the time. (Second Jennifer Levesque Aff. ¶ I.) Plaintiff's mother, Jennifer Levesque, called Ms. Gore before that date and spoke with her. (Jennifer Levesque Aff. ¶ 4.) Jennifer informed Ms. Gore that Plaintiff had certain medical needs and that Plaintiff required supervision. (Jennifer Levesque Aff. ¶ 7-9.) Ms. Gore confirmed that Plaintiff would be supervised during the visit. (Jennifer Levesque Aff. ¶ 11.) Ms. Gore did not inform Jennifer about Amanda's accusations against Mariah. (Jennifer Levesque Aff. ¶ 12.)
The Court will not consider the second and third paragraphs of the Second Affidavit of Jennifer Levesque because they consist of hearsay to which no exception applies.
To avoid confusion, the Court will refer to Jennifer Levesque by her first name.
Defendants left their home at about 7:00 p.m. that evening to go out for dinner. (J. Gore Dep. 35:5-8.) A third minor, Brianna, was also present in Defendants' home for the sleepover. (Pl. Dep. 66:12-20.) During Defendants' absence, Plaintiff began to feel drowsy while watching videos on her phone. (Pl. Dep. 67:11-20.) Brianna went into another room by herself to take a call. (PL Dep. 66:22-25.) Plaintiff awoke to Mariah sitting on her chest facing away from her. (Pl. Dep. 67:20-24; 71:17-72:2.) Plaintiff had difficulty breathing. (Pl. Dep. 68:1.) She alleges that Mariah inserted her fingers into Plaintiff's vagina, which caused Plaintiff physical discomfort. (Pl. Dep. 73:6-17; 76:8-12.)
Ms. Gore's parents were home in the apartment attached to Defendant's home during this time. (Pl. Dep. 66:10-11; R. Gore Resp. to Pl/s Interrogs. ¶ 8.) Her father passed through Defendants' home at one point, but Plaintiff "never saw" him. (PL Dep. 66:10-11; R. Gore Resp. to Pl/s Interrogs. 1 7.)
Shortly after the alleged assault, Plaintiff experienced bullying at school. (Second Jennifer Levesque Aff. ¶ 6.) Along with the alleged assault, the bullying, police interviews, physical examinations, and court proceedings caused Plaintiff stress. (Second Jennifer Levesque Aff. ¶ 4; Tennies Aff. ¶ 6.) Jennifer recounts that Plaintiff would call her daily, crying, and ask Jennifer to pick her up from school. (Second Jennifer Levesque Aff. ¶ 7.) Plaintiff's school performance suffered, and she lost interest in eating and playing games. (Second Jennifer Levesque Aff. ¶ 9.)
Paragraph 5 of the Second Affidavit of Jennifer Levesque offers a lay opinion on the cause of certain symptoms experienced by Plaintiff. A non-expert witness's opinion is admissible only if the opinion is: (a) rationally based on the perception of the witness; and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. M.R. Evid. 701. The Court will not consider Jennifer's opinion on the cause of her daughter's symptoms. See Hrichak v. Pion, 498 F.Supp.2d 380, 382-83 (D. Me. 2007) (a lay witness is not competent to testify as to the cause of a medical condition). Nor will the Court consider Jennifer's characterization of Plaintiff's symptoms as "trauma symptoms."
Plaintiff's grandmother, Joann Levesque, states that Plaintiff appears unhappy and has had difficulty sleeping since the sleepover at Defendants' home. (Joann Levesque Aff. 1.) Plaintiff's sister, Mary Jane Levesque, states that Plaintiff wakes up crying once or twice a week. (M.J. Levesque Aff. 1.)
Defendants argue that the Court should not consider the affidavits of Joann Levesque and Mary Jane Levesque because they contain improper lay testimony on Plaintiff's medical condition(s) and because they have no "expertise ... to link those observations with the alleged September 2016 incident." (Defs.' Opp'n 7.) The Court will consider the portions of the affidavits that contain the affiants' firsthand observations of Plaintiffs behavior but will not consider the affiants' opinions on the cause of those behaviors. See State v. Parks, 544 A.2d 1269, 1271 (Me. 1988) (stating that a parent's firsthand observations of a child's behavior are admissible).
Diane Pennies, Ph.D. is a licensed Maine psychologist. (Pennies Aff. ¶ 1.) Plaintiff was referred to Dr. Pennies for a psychological evaluation and an assessment of the psychological impact of the alleged September 2016 assault. (Pennies Aff. ¶ 2.) Based on her review of Plaintiff's medical history, Dr. Pennies concluded that Plaintiff was "fragile" at the time of the alleged assault due to at least two prior adverse childhood experiences. (Pennies Aff. ¶¶ 4, 5.) According to Dr. Pennies, adverse childhood experiences can affect a child's cognitive functioning and ability to cope with negative emotions. (Pennies Aff. ¶ 5.) In Plaintiff's case, Dr. Pennies reported significant concern about "an emerging substance use issue... consistent with impaired cognitive functioning or ability to cope with negative or disruptive emotions as a result of disrupted neurodevelopment from chronic stressful events." (Pennies Aff. ¶ 5.)
Dr. Tennies reports that the distress Plaintiff experienced appeared to be related to the alleged assault as well as "events that occurred after the reported assault," including bullying by peers. (Tennies Aff. ¶ 6.) Dr. Tennies reports that, at the time of the evaluation, Plaintiff was experiencing symptoms including poor coping mechanisms, low frustration tolerance, impaired problem-solving, mood instability, impulsivity, poor affective control, interpersonal impairment, and chronic sleep disturbances. (Tennies Aff. ¶¶ 11, 12.) In Dr. Tennie's opinion, the psychological testing, interview data, and collateral materials were consistent with an individual experiencing significant symptoms of post-traumatic stress disorder ("PTSD"). (Tennies Aff. ¶ 8.) In her opinion, Plaintiff's functioning will likely continue to be significantly impacted. (Tennies Aff. ¶ 14.)
Defendants submitted the Affidavit of Erika Wolf, Clinical Psychologist. (Defs.' Ex. 1.) Dr. Wolf reviewed Plaintiff's medical and counseling records, Dr. Tennies's treatment file for Plaintiff, and the depositions of Plaintiff and Dr. Tennies. (Wolf Aff. ¶ 3.) Dr. Wolf states that Plaintiff has "a history of psychological issues beginning in her early childhood." (Wolf Aff. ¶ 4.) In her opinion, Plaintiff's medical and counseling records, as well as the results of psychological testing administered by Dr. Tennies, do not provide an adequate basis for a diagnosis of PTSD. (Wolf Aff. ¶ 4.)
II. Legal Standard
Motions for attachment and trustee process must be supported by affidavit evidence that sets forth "specific facts sufficient to warrant the required findings." M.R. Civ. P. 4A(c), (i); M.R. Civ. P. 4B(c). The moving party must establish that it is more likely than not that they will recover judgment in an amount that equals or exceeds the aggregate sum of the attachment and other available security. M.R. Civ. P. 4A(c); Wilson v. DelPapa, 634 A.2d 1252, 1254-1255 (Me. 1993); Jacques v. Brown, 609 A.2d 290, 292 (Me. 1992). "Because prejudgment attachment may operate harshly upon the party against whom it is sought, there must be strict compliance with the procedures prescribed by legislation and implemented by court rules." Lindner v. Barry, 2003 ME 91, ¶ 4, 828 A.2d 788 (quoting Wilson, 634 A.2d at 1254).
Other available security includes "any liability insurance, bond, or other security, and any property or credits attached by other write of attachment or by trustee process shown by the defendant to be available to satisfy the judgment." M.R. Civ. P, 4A(c).
When entertaining a motion for attachment, the Court reviews and assigns weight to affidavit evidence in the same manner that it does with other evidence. Wilson, 634 A.2d at 1254. Although Rule 4A refers only to affidavits, the Court will also consider depositions and exhibits appropriately attached to affidavits that conform to Rule 4A(i). See Off. Post Confirmation Comm, of Creditors Holding Unsecure Claims v. Markheim, 2005 ME 81, ¶ 18,877 A.2d 155 (stating that Rule 4A does not permit the Court to consider evidence not contained in proper affidavits); Boisvert v. Boisvert, 672 A.2d 96, 98 (Me. 1996) (considering evidence in documentary exhibits and deposition transcripts); Wilson, 634 A.2d at 1254 (considering writings attached to affidavits). However, "[t]he arguments of counsel cannot substitute for the required sworn statements of relevant facts." Wilson, 634 A.2d at 1254.
III. Discussion
A. Liability
As mentioned above, Plaintiff proceeds only on her claim of negligent supervision. "'A cause of action for negligence has four elements: (1) a duty of care owed to the plaintiff; (2) a breach of that duty; (3) an injury; and (4) causation, that is, a finding that the breach of the duty of care was a cause of the injury." Bell v. Dawson, 2013 ME 108, ¶ 17,82 A.3d 827 (quoting Est. of Smith, 2013 ME 13, ¶ 16, 60 A.3d 759). Plaintiff argues that Defendants had a custodial relationship with Plaintiff and breached that duty by failing to supervise Plaintiff or warn Plaintiff's mother of the risk of harm to Plaintiff.
Plaintiff does not claim under the statute establishing parents' strict liability for injury "willfully or maliciously" caused by a minor child, 14 M.R.S. § 304 (2022). And, although the facts seem to implicate a parent's duty to control his or her minor child so as to prevent the child from harming others, see Merchant v. Mansir, 572 A.2d 493, 494 (Me. 1990), Plaintiff does not argue this theory or cite this line of cases.
The tort of negligent supervision requires that the defendant owe a duty of supervision to the plaintiff. Bell, 2013 ME 108, ¶ 19,82 A.3d 827. That duty may arise from a custodial relationship between the parties. Id. "A custodial relationship exists between 'those who are required by law to take physical custody of another or who voluntarily do so, such as to deprive the other of his normal opportunities for protection.'" Gniadek v. Camp Sunshine at Sebago Lake, LLC, 2011 ME 11, ¶ 24,11 A.3d 308 (quoting Dragomir v. Spring Harbor Hosp., 2009 ME 51, ¶ 18, 970 A.2d 310). A custodial relationship may be created when a person agrees to host a child overnight in his or her home. Bell, 2013 ME 108, ¶ 20, 82 A.3d 827; see also Gniadek, 2011 ME 11, ¶ 24, 11 A.3d 308 (stating that a custodial relationship ordinarily exists between a child and a camp or school because the child is taken out of the custody of his or her parents).
Defendants owed a duty to Plaintiff. By voluntarily hosting Plaintiff in their home and agreeing to supervise her, they formed a custodial relationship with Plaintiff, which existed for the duration of her overnight visit.
The evidence indicates that Defendants were aware prior to Plaintiff's visit that Mariah had been accused of injuring a minor and trying to remove her clothing during an overnight stay. Defendants, who did not have personal knowledge of the alleged assault on Amanda, chose to believe Mariah when she denied the accusations. Nonetheless, Defendants had notice of some risk to Plaintiff from Mariah. Defendants did not warn Plaintiff or Plaintiff's mother, about the accusations against Mariah. Defendants chose to leave Mariah and Plaintiff unsupervised in their home for a significant length of time, during which Plaintiff was allegedly harmed. It is more likely than not that a jury would find that Defendants breached a duty of care owed to Plaintiff by failing to adequately supervise Plaintiff and Mariah.
Plaintiff must also prove causation and damages by a preponderance of the evidence. There is some evidence that the lack of supervision created a foreseeable opportunity for Mariah to harm Plaintiff. However, this record contains no evidence that Defendant's breach was a proximate cause of the bullying Plaintiff later endured or the emotional distress suffered because of bullying. As discussed in more detail below, there is conflicting evidence as to whether and to what extent the alleged assault caused or contributed to Plaintiff's emotional distress, other psychological symptoms, and sleep disturbances. The record does, however, support a finding by a preponderance of the evidence that Plaintiff suffered physical pain during the alleged assault as well as some degree of psychological and emotional harm because of the alleged assault.
B. Damages
The moving party must also make a showing of damages in excess of available security. M.R. Civ. P. 4A(c). The moving party must provide "evidence 'from which some informed projection could be made' as to the amount of damages suffered by the party." Bates Fabrics, Inc. v. LeVeen, 590 A.2d 528, 531 (Me. 1991) (quoting Bowman v. Dussault, 425 A.2d 1325, 1329 (Me. 1981)). In Vogt v. Churchill, 679 A.2d 522, 524 (Me. 1996), the Law Court noted that although emotional distress damages are not susceptible to quantification, an attachment can be based on the nature of the emotional distress described in affidavits. See also Jacques v. Brown, 609 A.2d 290, 292-93 (Me. 1992) (upholding attachment of $100,000 when plaintiff alleged personality changes and adverse effects on her relationship with her husband after sexual assault).
The parties dispute whether the Court may consider Exhibit J to Plaintiff's Motion, which is a letter from John Whitman on behalf of Concord General Mutual Insurance Company regarding its position on its duty to indemnify Defendants under their homeowners' insurance policy for a judgment or settlement in this matter. The Court need not decide this issue. M.R. Civ. P. 4A(c) places the burden on Defendants to show the existence of available liability insurance that should decrease that attachment, but Defendants have failed to show or even assert the existence of available insurance. Plaintiff need not prove the lack of available liability insurance.
There is conflicting evidence as to what extent Plaintiff's emotional distress and psychological symptoms were proximately caused by the alleged assault rather than events that followed shortly after, including bullying Plaintiff experienced at school and the stress of litigation. There is also conflicting evidence as to what extent the alleged assault rather than preexisting conditions caused or contributed to Plaintiff's emotional distress, psychological condition, psychological symptoms, and sleep disturbances. "[A] court need not address complex legal issues or rectify factual disputes in a summary attachment hearing," and the Court cannot conclude from the evidence before it that it is more likely than not that Plaintiff will recover judgment in excess of $500,000. Porrazzo v. Karofsky, 1998 ME 182, ¶ 7, 714 A.2d 826.
IV. Conclusion
For the foregoing reasons, the Court denies Plaintiff's motion.
The entry is:
Plaintiff Emma Levesque's Motion for Attachment and Attachment on Trustee Process is DENIED.
The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).