COOK v. GENERAL CABLE CORP.

728 F. Supp. 38 (1989) | Cited 0 times | D. Maine | April 19, 1989

Recommended Decision on Motion to Dismiss, December 23, 1988, Reported at: 728 F. Supp. 38 at 40.

1. The defendant General Cable Corp. has not responded in writing to the court's Order entered December 5, 1988. However, at the conference of counsel held December 13, 1988, counsel for General Cable Corp. orally advised the court that General Cable Corp. adopted the memorandum of law filed by the defendant Jack Kiley in support of its own motion to dismiss the same claim.

2. The plaintiffs read Culbert more broadly, arguing that it provides a basis for recovery in psychic injury cases which does not require bystander status as an element. See Culbert, 444 A.2d at 437. However, any such suggestion is merely dictum.

3. Although in Gammon the Law Court occasionally uses the terms "emotional distress" and "mental distress" without any qualifying adjective, it does so in a context which strongly suggests the implicit use of either of the modifiers "severe" or "serious." In announcing its abandonment of so-called artificial devices, the court observed: We do not foresee any great extension of tort liability by our ruling today. We do not provide compensation for the hurt feelings of the supersensitive plaintiff -- the eggshell psyche. A defendant is bound to foresee psychic harm only when such harm reasonably could be expected to befall the ordinarily sensitive person. Gammon, 534 A.2d at 1285. The court then referred in a footnote to its description of serious mental distress in Culbert as being " 'where a reasonable person, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the event.' " Id. at n. 8. In its concluding general statement, the Law Court stated: "[We] recognize that the elimination of some barriers to recovery for negligent infliction of severe emotional distress may compel further evaluation of other policy considerations." Gammon, 534 A.2d at 1286 (emphasis added). For purposes of disposition of the defendants' motion to dismiss, a determination whether the greater or lessor degree of psychic distress is required is not necessary since the plaintiffs have alleged that Mrs. Cook suffered "very severe emotional distress." Complaint, Count IV, para. 32.

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