March 14, 1990 - Defense Attorney Marvin Glazier filed Defendant's Motion to Dismiss or for Summary Judgment

March 21, 1990, Popkin motioned the court to dismiss Defendant Owen Pollard with prejudice but without costs for the interests of justice and to help save time, control legal fees and costs and to simplify the issues.

March 21, 1990, Popkin filed Plaintiff's Local Rule 19(b) (1) and 19 (b) (2)  Statement


Plaintiff alleges that on or about February 17-18, 1981, her son was alone in a cabin with Defendant Paul Pollard (Pollard, Exhibit 6, page 2), that the cabin was intentionally burned in an arson Herrin at 12, Ricker at 28-30) and that Pollard was observed running away and wiping his hands (Pollard at 63-64, Herrin at 12). Plaintiff alleges that her son died as a result of the fire (Plaintiff’s Exhibit 5, report of Ronald Roy, M.D.), that gasoline had been poured directly on her son’s body [he was breathing when the gas was poured on him), which was abnormally charred, (Ricker at 40-45), and that the fire probably began with a gasoline vapor explosion (Ricker at 53-57). Plaintiff alleges that Paul Pollard was interviewed by the Maine State Police in the two weeks that followed the fire (Pollard at 41, 107, 147), denied his role in it and misrepresented the facts (Ibid, see also Pollard, Exhibit 6). Plaintiff alleges that she learned of Pollard’s statements immediately after they were made, and relied upon them as true until 1985 (Exhibit 1, Plaintiff’s Affidavit) when she learned that Pollard might be lying. Pollard had moved his residence out of Maine in 1982 (Pollard at 7 -9, 19, 159 – 160), and Plaintiff did not know his whereabouts during this period (Exhibit 1, Plaintiff’s Affidavit). Plaintiff further alleges, although it is not now in issue, that she suffered severe emotional distress as a result of the above.

Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss

6. Under Gammon and its progeny, Plaintiff has stated a claim for negligent infliction of emotional distress

Defendants’ last argument is that “summary judgment must be entered on Plaintiff’s claim for negligent infliction of emotional distress” because Plaintiff did not “witness [any] ghastly event.” Defendant’s Brief, at 15-16.

A review of recent Maine case law shows that Plaintiff has established a case for both negligent and intentional or reckless infliction of emotional distress. There is no legal requirement that such a case be based upon witnessing a “ghastly event.” According to Gammon v. Osteopathic Hospital of Maine, Inc., 534 A.2d. 1282 (Me. 1987), the issue is one of proximate causation or “foreseeability,” and it was highly foreseeable to Pollard, when he killed Cochran and burned his body, that Plaintiff would suffer severe emotional distress as a result of his actions.

In Gammon, supra, Maine’s high Court found that an action lay against a negligent hospital that had mailed a son his deceased father’s leg. Defendant in this case is arguing that while it is actionable to mail someone their son’s severed leg, it is not actionable to intentionally kill the son, pour gasoline on his body and burn it. No such distinction is supported by law or common sense.

(18)...The first thing to be noticed is that the record in this case not only supports a finding that Pollard killed Cochran, but that he burned his body by pouring gasoline on it and setting alight. This alone brings it within the strict holding of Gammon, supra, and of the cases it cites. Then, on foreseeability, common sense seems to dictate that Plaintiff’s severe emotional distress was a “foreseeable” result of Pollard’s conduct. In support of this, Plaintiff pleads the English language. In any real sense of the word, someone who intentionally kills another person, pours gasoline on them, and sets them alight, knows that the mother of the victim is almost certain to suffer severe emotional distress. In fact, this goes beyond mere foreseeability. The emotional distress on these facts is highly probable. Nor can Pollard, who spoke directly to Plaintiff within the limitations period, claim that he was unaware of Plaintiff’s individual state of mind and suffering. (Pollard at 20)

An important point is the intentional, and not merely negligent, quality of Defendant’s conduct. An intentional killing of another person involves a degree of foreseeability quite different from that involved in a mere negligence case. Someone who operates an automobile in a negligent manner knows only that if they make a mistake, relatives of an accident victim may be severely distressed. Someone who intentionally kills another person and then torches the body knows that the victim’s mother will undoubtedly suffer such distress. On the record before the Court, summary judgment on the issue of whether Plaintiff has stated a claim for negligent infliction of emotional distress must be denied.

Mike was breathing when the gas was poured on him.