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Michaud v. Great Northern
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:1998 ME 213 
Docket:Pen-97-193
Argued:	February 4, 1998
Decided:August 19, 1998


Panel:WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ{*}, and
SAUFLEY, JJ.

BRIAN MICHAUD

v.

GREAT NORTHERN NEKOOSA CORPORATION

and

COLWELL CONSTRUCTION COMPANY, INC.

WATHEN, C.J.


	[¶1] Plaintiff Brian Michaud appeals from a summary judgment
entered in the Superior Court (Penobscot County, Mead, J.) in favor of
defendants, Great Northern Nekoosa Corporation (Great Northern) and
Colwell Construction Company (Colwell).  Plaintiff brought an action for
negligent infliction of emotional distress, and the court ruled that
defendants had no legal duty to protect him.  On the theory that a "rescuer
is not a bystander,"  he urges us to recognize, for the first time, a duty of
care to protect a rescuer from emotional distress even in the absence of a
familial relationship with the persons in peril.  We decline to expand
recovery on claims for negligent infliction of emotional distress.  The
Superior Court correctly ruled that Michaud failed to satisfy the established
criteria, and we affirm the judgment.
	[¶2]  The facts, considered in the light most favorable to Michaud, may
be summarized as follows:  Great Northern owns and operates the Ripogenus
Dam located on the Penobscot River near Millinocket.  In 1989, Great
Northern hired Colwell as general contractor for a major repair project on
the dam.  Colwell was responsible for overseeing the entire project and
supporting and assisting a diving team.  Great Northern hired a diving
contractor,  Aqua-Tech Marine Construction Co. (Aqua-Tech), to perform all
of the diving work associated with the project. 
	[¶3]  The incident that gave rise to this litigation took place during
the repair of a "deepgate."  Tunnels or sluiceways extend through Ripogenus
Dam.  A "deepgate" blocks the water in a tunnel.  Because the impounded
water exerts pressure on the deepgate, periodic repairs become necessary. 
To remove a deepgate for repairs, a maintenance gate is installed upstream
in the tunnel, creating a cavity between the gates that permits the removal
of the deepgate.  Once the repairs are completed, the deepgate is replaced
and the cavity between the two gates is filled with water.  The maintenance
gate cannot be removed until the cavity is filled and the water level and
pressure on both sides of the maintenance gate are equalized.
	[¶4] In this instance, Colwell installed a temporary maintenance gate
and successfully removed, repaired, and reinstalled the deepgate.  When it
attempted to fill the cavity between the gates, the valve in the maintenance
gate failed to allow sufficient water to pass into the cavity to equalize the
pressure.  
	[¶5]  Because the maintenance gate could not be removed until the
cavity was filled, Colwell's superintendent and two of Great Northern's
engineers devised a plan to increase the water flow through the
maintenance gate:  Divers would first attempt to "wedge" the maintenance
gate to create an opening at the top of the gate to allow more water to flow
into the tunnel; if unsuccessful, the divers would then cut holes in the
maintenance gate to further increase the flow of water; and finally, if all else
failed, they would obtain pumps to pump water over the maintenance gate
into the cavity.  The plan was put in place when two Aqua-Tech divers,
Albert Harjula and Daniel Sullivan, arrived at the work site.
	[¶6] The two divers had no advance notice of the plan and were
prepared only to attach hooks to the maintenance gate.  Because they had
not brought tools for underwater cutting, Colwell loaned them its tools. 
Sullivan dove first and, although he successfully wedged the gate, the water
flow did not increase sufficiently to fill the cavity. Thereafter, according to a
Colwell employee, one of Great Northern engineers exerted "peer pressure"
on the divers to cut a 4" x 8" hole in the maintenance gate.  Harjula, the
more senior of the two divers, refused to allow Sullivan to cut a hole but
agreed that Sullivan could cut "slots" in the gate.  This too failed to
sufficiently increase the water flow.  Over lunch, the engineers again asked
the divers to cut holes in the gate.  This time, Harjula agreed.
	[¶7]  As Sullivan was out of dive time for the day, Harjula made a
number of dives to extend the ends of the slots to create rectangular holes. 
At 3:42 p.m., Harjula made a final attempt to cut additional holes.  During
this dive, he lost a glove and then a hammer; both were presumably sucked
through a hole in the gate.  He resurfaced to get a new glove, and a new
hammer was sent down to him.  A few minutes later, he radioed that he had
lost a cuff from his wet suit and asked to be pulled up.  When the surface
crew began to pull, he yelled through the radio that his feet were stuck in a
hole in the gate.   The crew continued to pull but could not free him.  At this
point, Colwell's superintendent called Aqua-Tech's headquarters to locate
additional divers to assist with a rescue attempt.  Aqua-Tech in turn called
Great Northern who also began searching for additional divers.  
	[¶8]  Sullivan, the second diver, was on the surface with the other
employees.  Becoming increasingly agitated, he stated that he had to try and
rescue his partner and could not just let him die.  Sullivan, however, was not
equipped to make a rescue attempt.  He had no radio equipment, he was out
of dive time for the day, and he had no plan or method for rescuing Harjula. 
Although it is disputed whether Sullivan was ordered not to dive, he dove at
5:35 p.m.  After resurfacing twice, he too became trapped in the holes in the
gate.  Although he continued to communicate through rope pulls, after thirty
minutes all communication ended. 
	[¶9] Plaintiff Michaud, an Aqua-Tech diver working on another
construction project, had planned to meet Sullivan that evening.  While
waiting, he received a telephone call from his mother informing him that
Harjula was "stuck" underwater and that Sullivan was going to dive to try
and rescue him.  She told him that a worker at the dam project had come to
her store in Greenville and asked her to contact Michaud to help with the
rescue.
	[¶10]  Michaud arrived at the work site at 6:15 p.m.  At about the same
time, another Aqua-Tech diver, Richard Bourgeois, arrived at the site and
took charge of the rescue attempt.  Bourgeois sent a diver into the water to
evaluate the situation.  That diver panicked and Bourgeois ordered him to
surface.  It is unclear whether Bourgeois then asked Michaud to dive or
whether Michaud volunteered.  
	[¶11]  At 7:30 p.m., Michaud dove to a depth of approximately fifty feet
and observed both divers with their legs trapped in holes in the gate. 
Although he shined a light on both divers, neither responded.   He could not
visually confirm if the divers were still alive.  Michaud thought that Sullivan
grabbed him at one point, although he noted that it could have been as a
result of his own contact with Sullivan's body. 
	[¶12]  By radio, Bourgeois instructed Michaud to attach a chainfall to
each diver's harness so that they could pull the divers out of the holes. 
Michaud told Bourgeois that Sullivan was caught up to his knee and the
chainfall would "bust him up."  Bourgeois repeated his order and Michaud
attached the chain through both divers' harnesses.  Harjula's harness broke
as soon as they tried to pull him to the surface.  Sullivan's harness remained
attached and the crew pulled while Michaud placed his hands around
Sullivan's leg in an effort to help extricate it from the hole.  Michaud was
mindful of the fact that he needed to keep sufficient distance between
himself and the gate to avoid being sucked into the holes.
	[¶13]  When the chain was pulled for the final time, Michaud heard a
pop and observed Sullivan's lower leg tear from his body.  Sullivan's body
quickly surfaced and Michaud, still underwater, was surrounded by Sullivan's
blood.  Bourgeois heard Michaud screaming over the radio, and when
Michaud surfaced a minute later, he was totally incoherent and in severe
shock.  Michaud and Sullivan were transferred to a hospital in the same
ambulance and Sullivan was pronounced dead, in Michaud's presence, when
they arrived at the hospital.  Harjula also died.  His body was not recovered
until the next morning.  Michaud was hospitalized overnight.  Following his
release, he was diagnosed with post-traumatic stress disorder.