COUSINS et al v. HIGGINS et al

Filing 85

REPORT AND RECOMMENDED DECISION re 77 Amended MOTION for Summary Judgment filed by MATTHEW LINDSLEY, KEITH HIGGINS, HEATH HIGGINS, TADD JEWETT, TREMONT VOLUNTEER FIRE DEPARTMENT, TOWN OF TREMONT, SAMUEL CHISOLM, MATTHEW TETREAULT, and COLTON SANBORN. Objections to R&R due by 7/12/2018. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

ROBERT L. COUSINS, et al.,
Plaintiffs,
v.
KEITH HIGGINS, et al.,
Defendants

)
)
)
)
)
)
)
)
)

1:14-cv-00515-DBH

RECOMMENDED DECISION ON DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
In this matter, Plaintiffs allege that Defendants were negligent and violated their
civil rights in connection with a fire that destroyed their home, restaurant and adjacent
property on December 4, 2013. The matter is before the Court on Defendants’ Amended
Motion for Summary Judgment. (Defendants’ Amended Motion for Summary Judgment,
ECF No. 77.) Through their motion, Defendants assert that Plaintiffs have failed to
demonstrate a factual basis for their claims, and that Plaintiffs’ claims are barred by state
and federal immunity doctrines.
Defendants consist of the Town of Tremont, the Tremont Volunteer Fire
Department, Keith Higgins, Heath Higgins, Samuel Chisolm, Colton Sanborn, Tadd Jewett,
Mathew Lindsley, and Matthew Tetreault. The pending claims are set forth in Count II
(equal protection), Count IV (substantive due process), Count VIII (emotional distress),
and Counts XI – XII (negligence).

Following a review of the record and after consideration of the parties’ arguments,
I recommend the Court grant Defendants’ motion.
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). “After the moving party has presented evidence in support
of its motion for summary judgment, ‘the burden shifts to the nonmoving party, with
respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact
reasonably could find in his favor.’” Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st
Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir.1998)).
A court reviews the factual record in the light most favorable to the non-moving
party, resolving evidentiary conflicts and drawing reasonable inferences in the nonmovant’s favor. Hannon v. Beard, 645 F.3d 45, 47-48 (1st Cir. 2011). If a court’s review
of the record reveals evidence sufficient to support findings in favor of the non-moving
party on one or more of his claims, a trial-worthy controversy exists and summary
judgment must be denied as to any supported claim. Id. Unsupported claims are properly
dismissed. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) (“One of the principal
purposes of the summary judgment rule is to isolate and dispose of factually unsupported
claims or defenses.”).
THE SUMMARY JUDGMENT RECORD
When presented with a summary judgment motion, a court ordinarily considers only
the facts included in the parties’ statements of material facts, which statements must be
2

supported by citations to evidence of record. Federal Rule of Civil Procedure 56(c) and
District of Maine Local Rule 56(b) – (d) require the specific citation to record evidence.
In addition, Local Rule 56 establishes the manner by which parties must present their
factual statements and the evidence on which the statements depend. A party’s pro se status
does not relieve the party of the obligation to comply with the court’s procedural rules.
Ruiz Rivera v. Riley, 209 F.3d 24, 27 – 28 & n. 2 (1st Cir. 2000); Marcello v. Maine, 489
F. Supp. 2d 70, 77 (D. Me. 2007).
By rule, a party seeking summary judgment must file, in addition to its summary
judgment motion, a supporting statement of material facts setting forth each fact in a
separately numbered paragraph, with each factual statement followed by a citation to
evidence of record that supports the factual statement. D. Me. Loc. R. 56(b). A party
opposing a motion for summary judgment must file an opposing statement in which it
admits, denies, or qualifies the moving party’s statements by reference to each numbered
paragraph, with citations to supporting evidence, and in which it may set forth additional
facts, in separately numbered paragraphs, with citation to supporting evidence. D. Me. Loc.
R. 56(c). If an additional statement is introduced by the non-moving party, then the moving
party must file a reply statement in which it admits, denies, or qualifies the non-moving
party’s additional statements by reference to each numbered paragraph, with citations to
supporting evidence. D. Me. Loc. R. 56(d).
“Facts contained in a supporting or opposing statement of material facts, if
supported by record citations as required by this rule, shall be deemed admitted unless
properly controverted.” D. Me. Loc. R. 56(f). Additionally, “[t]he court may disregard
3

any statement of fact not supported by a specific citation to record material properly
considered on summary judgment.” Id. Finally, “[t]he court shall have no independent
duty to search or consider any part of the record not specifically referenced in the parties’
separate statement of facts.” Id.
Defendants filed a statement of material facts in support of their motion. (ECF No.
76.) In support of each individual statement, Defendants cited record evidence, and
attached to their statement the cited evidence. Defendants, therefore, have satisfied the
requirements of Local Rule 56. Plaintiffs have not complied with the Rule. Specifically,
Plaintiffs have not filed a direct response to Defendants’ statement of material facts. Under
the Local Rule, Defendants’ statements are “deemed admitted” because Plaintiffs failed to
dispute Defendants’ statements – by denying or qualifying the statements, and by citing
record evidence to support their denials and qualifications. D. Me. Loc. R. 56(f).
Additionally, while Plaintiffs have provided a competing factual narrative (i.e., the portion
of their opposition labeled “facts” in which they set forth 70 statements), none of the
individual statements in the narrative is followed by a citation to record evidence. By Rule,
“[t]he court may disregard any statement of fact not supported by a specific citation to
record material properly considered on summary judgment.” Id.
In their summary judgment submission, Plaintiffs include factual statements that
could conceivably be material to the summary judgment assessment. Plaintiffs, however,
do not cite to supporting record evidence. Without citation to the record, Plaintiffs’
assertions do not constitute record evidence for purposes of summary judgment. “[T]he
Court is required to maintain a strict neutrality between opposing parties and even though
4

a more forgiving reading may be appropriate for a pro se party in the summary judgment
context, it is also true that ‘[j]udges and magistrate judges who review these filings must
be able to rely on procedural rules so as to avoid becoming the lawyer for the unrepresented
[party] or devoting an excessive portion of their time to such cases.’” United States v.
Baxter, 841 F. Supp. 2d 378, 383 (D. Me. 2012) (quoting Clarke v. Blais, 473 F. Supp. 2d
124, 129 (D. Me. 2007)).
Nevertheless, the factual assertions contained in the verified complaint and
affidavits filed in connection with the summary judgment motion can be considered. That
is, where a pro se litigant has failed to comply strictly with the summary judgment rules,
this Court has considered the sworn assertions of record. See Clarke v. Blais, 473 F. Supp.
2d 124, 128 – 30 (D. Me. 2007) (“The First Circuit has not addressed this notice debate
directly, but has said, in the summary judgment context, that unrepresented plaintiffs’
opposing affidavits and opposition papers are to be read ‘liberally.’” (citing Posadas de
Puerto Rico, Inc. v. Radin, 856 F.2d 399, 401 (1st Cir. 1988), and Mas Marques v. Digital
Equip. Corp., 637 F.2d 24, 27 (1st Cir. 1980)); Demmons v. Tritch, 484 F. Supp. 2d 177,
182 – 83 (D. Me. 2007). In this case, in addition to the summary judgment record, I have
considered Plaintiffs’ verified complaint and the affidavits filed by Plaintiffs in this action
to the extent the allegations in the complaint and the assertions in the affidavits include
facts that would be admissible in evidence and otherwise comply with the requirements of
Federal Rule of Civil Procedure 56(c)(4).1

Federal Rule of Civil Procedure 56(c)(4) provides: “An affidavit or declaration used to support or oppose
a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and
1

5

SUMMARY JUDGMENT FACTS
On December 4, 2013, a fire of undetermined origin destroyed Plaintiffs’ restaurant
and residence in Tremont, Maine. (Defendants’ Stmt. of Material Facts (DSMF) ¶ 1, ECF
No. 76.) A notable feature of the premises was a 40-foot tower/lighthouse built by Plaintiff
Robert Cousins within the existing footprint of the preexisting restaurant/residence. (Id.
¶¶ 3, 5, 6.) The fire began on the top floor of the tower. Including the ground floor, the
tower was a five story structure.
According to the report of the State Fire Marshal’s Office, Plaintiff Judy Cousins
reported that the fire started at approximately 7:15 p.m. (Id. ¶ 8.) Robert Cousins told
investigators that he attempted to put out the fire with a fire extinguisher, and told Judy
Cousins to dial 9-1-1. (Id. ¶¶ 9, 10.)
The record reflects that a woman named Paula Farrell called 9-1-1 at 7:44 p.m., and
reported that the top of the lighthouse tower was “all in flames—it’s all on fire—it’s all
engulfed.” (Declaration of Nicholas Hardwick, Southwest Harbor Police Department, ECF
No. 76-10/82-3; Ex. 4 to Hardwick Declaration (removable media file).) Upon receipt of
Ms. Farrell’s report, an officer sent an emergency tone to the Tremont Volunteer Fire
Department at 7:45 p.m., reporting that the tower was on fire. (DSMF ¶ 12.)

show that the affiant or declarant is competent to testify on the matters stated.” Because Plaintiffs dated
and signed their original complaint under penalty of perjury, the complaint can be considered a declaration
by Plaintiffs concerning facts known to them. However, often, a verified complaint includes some
assertions that cannot be considered as admissible evidence. For example, a person who executes an
affidavit or verified complaint cannot convert hearsay statements into admissible evidence. To constitute
admissible evidence, the testimony of a fact witness must be based on personal knowledge acquired through
observation. Fed. R. Evid. 602. Additionally, in order to introduce statements attributed to an opposing
party, Plaintiffs would have to satisfy the foundational requirements of Federal Rule of Evidence 801.
6

Fire Chief Keith Higgins of the Tremont Volunteer Fire Department, a defendant in
this action, then directed volunteer firefighters to the fire scene, and told the dispatcher to
call both the Southwest Harbor and Mount Desert Fire Departments for assistance at the
fire scene. (Id. ¶ 13.) Chief Higgins and several volunteer firefighters from the Tremont
Volunteer Fire Department arrived at the fire scene at approximately 7:49 p.m. (Id. ¶ 14.)2
According to Plaintiffs, Defendant Heath Higgins was the first firefighter to arrive
at the premises, and he instructed Robert Cousins to leave, stating that he was now
responsible (“I got it now.”). (Verified Compl. at 3, ECF No. 1.) Robert Cousins asserts
that at the time, he had almost succeeded in suppressing the fire with a single fire
extinguisher and could have completed the job with one more extinguisher. (Id.)
Around 7:58 p.m., Fire Chief Samuel Chisolm of the Southwest Harbor Volunteer
Fire Department, also a defendant, arrived at the fire scene with several volunteer
firefighters. (DSMF ¶ 15.) Several volunteer firefighters from the Mount Desert Volunteer
Fire Department arrived at the scene at approximately 8:20 p.m. (Id. ¶ 16.)
At or around 8:00 p.m., Southwest Harbor Volunteer Fire Department Deputy Chief
Jack Martel arrived and his helmet camera was recording. Deputy Chief Martel asserts the
footage depicts the tower fully engulfed with flames of more than 15-feet in height rising
2

Although Judy Cousins was the first person to discover the fire, Plaintiffs have provided no reliable
evidence of the time the fire started. At most, they dispute (without citing evidence) the assertion in the
Fire Marshal’s report that Judy Cousins reported the start of the fire as 7:15 p.m. Although Plaintiffs assert
that Robert Cousins told Judy Cousins to call 9-1-1 when the fire allegedly was small enough that Robert
Cousins might have extinguished it with a hand extinguisher, there is no evidence of record that Judy
Cousins made the call or otherwise alerted any member of the Tremont volunteer fire department before
dispatch received the 7:44 p.m. call from Ms. Farrell. At his deposition, Robert Cousins testified that he
should have taken a second extinguisher up the stairs and that the firefighters arrived four minutes later.
(Robert Cousins Deposition at 120, ECF No. 76-1.)
7

from the top of the tower. (DSMF ¶¶ 38 – 40; Declaration of Jack Martel ¶ 13, ECF No.
82-4 / 76-11; Ex. 1 to Declaration (removable media thumb drive).)
As of 8:05 p.m., the entire tower was consumed in flames, which were visible
through the windows in the lower levels of the tower. As described by Southwest Harbor
Volunteer Firefighter Mary Ellen Martel, and depicted in photographs she took at the scene,
flames were “at and/or exiting the windows at every level of the tower [and] the top of the
tower was non-existent,” having been consumed by fire. (DSMF ¶¶ 42 – 44; M.E. Martel
Declaration ¶ 9, ECF No. 82-7 / 76-19.) By 8:44 p.m., the entire structure was ablaze and
there effectively was no restaurant or residence to spare from destruction. (DSMF ¶¶ 71 –
74; M.E. Martel Declaration ¶ 5 – 10; DSMF Ex. 17 (removable media thumb drive “Martel
Photo 8:44”).)
According to Chief Higgins, after assessing the structure, the surrounding
exposures/risks, and the location, magnitude, and progression of the fire, he determined
that the tower may lack structural integrity, lacked a route of access that did not expose
firefighters to potential electrocution, and presented a challenge that exceeded available
resources (human, water, and equipment). Chief Higgins, therefore, directed firefighters
to perform a defensive attack from the exterior of the structure.3 (DSMF ¶¶ 22 – 28.) A
defensive attack involves the application of as much water as effectively as possible from
the exterior of the structure, to control, to the extent possible, the progression of the fire

Defendants characterize the fire at Plaintiffs’ premises as difficult to access and rapidly expanding, and
they note the risk that fire could spread to surrounding buildings, exposures, and neighboring properties.
(DSMF ¶¶ 120 – 122.)
3

8

and to contain and eventually extinguish the fire. (Id. ¶ 29; Audette/Pine Point Fire
Training & Consulting Report at 11, ECF No. 76-12.)
The Tremont and Southwest Harbor Volunteer Fire Departments applied thousands
of gallons of water (approximately 40,000 gallons) to the structure and surrounding
exposures through the use of multiple apparatuses and equipment, including several hand
lines, an engine-mounted deck gun, and Southwest Harbor’s ladder truck. (DSMF ¶¶ 30,
41, 45, 88.)
Linda Risley, a bystander with no affiliation to Tremont or Southwest Harbor, or
their fire departments, took several photographs of the progress of the fire. Ms. Risley’s
photos appear to be the earliest available photographs of the fire. (DSMF ¶¶ 31 – 32.) Ms.
Risley states that she took her first photograph at 7:54 p.m., ten minutes after Ms. Farrell’s
9-1-1 call, and five minutes after the arrival of the first Tremont firefighters. (Declaration
of Linda Risley ¶ 9, ECF No. 76-13 / 82-6; Ex. A to Risley Declaration (CD-R disc of
Risley photos).) The initial photograph, IMG_6864, reflects that a serious fire was
underway within five minutes of the arrival of the Tremont firefighters and that water was
being applied to the structure.
The record also reflects that water supply issues could have hampered the fire
suppression effort. The Town of Tremont does not have pressurized fire hydrants. (DSMF
¶ 46.) The Town of Tremont, as with many rural Maine communities, uses a network of
what are called “dry hydrants.” (Id. ¶ 47.) Dry hydrants are hydrants located adjacent to
bodies of water, and firefighters can connect a fire engine or tanker to the hydrant to pump

9

water into the vehicle’s water tank. The engine or tanker then transports the water to the
fire scene. (Id.)
The Tremont and Southwest Harbor Fire Departments brought approximately 9,000
gallons of water to the fire scene. (Id. ¶ 50.) Subsequently, they relied on a “tanker shuttle”
consisting of several tanker trucks and fire engines to collect water from the dry hydrants
and transport the water to the scene.4 (Id. ¶¶ 51, 52.)
After applying the original 3,600 gallons of water to the fire scene, the Tremont
Volunteer Fire Department’s tanker truck broke down on route to a nearby pond to get
more water. (Id. ¶¶ 53, 54.) The tanker operated properly and without issue for more than
a year prior to December 4, 2013, and the tanker was serviced, inspected, and certified for
proper operation by a third party as recently as May 28, 2013. (Id. ¶¶ 55 – 56.) After
learning of the breakdown, Chief Higgins called immediately for tankers from the Trenton
Volunteer Fire Department and Bar Harbor Fire Department to assist with the tanker shuttle.
(Id. ¶ 57.) Until the tanker trucks from Trenton and Bar Harbor arrived at the fire scene,
Chief Higgins substituted another engine in place of the broken down tanker truck. (Id. ¶
58.)
At approximately 8:15 p.m. the fire was still contained to the tower structure. (Id.
¶ 59.) Firefighters continued to apply thousands of gallons of water to the structure as
consistently as possible, given the limited water supply. (Id. ¶ 61.) Around this time,

4

There are pressurized hydrants approximately two miles from the premises, in Southwest Harbor. While
Defendants did not explicitly assert they used the hydrants in their statement of material facts, Chief Higgins
did state that the closest pressurized hydrant was utilized. (Compare DSMF ¶ 51 with Declaration of Keith
Higgins ¶ 53, ECF No. 76-2.)
10

something within the structure ignited, which caused the fire to expand rapidly. (Id. ¶ 62.)
At 8:37 p.m., one of the firefighters reported that something was fueling the fire up the
backside of the tower. (Id. ¶ 63.)
The Trenton Volunteer Fire Department’s tanker truck and the Bar Harbor Fire
Department’s tanker truck arrived to the fire scene at approximately 8:40 p.m. (Id. ¶¶ 64,
65.) The Trenton volunteer firefighters and Bar Harbor firefighters set up portable dump
tanks to hold water adjacent to the structure, but before they were able to fill each portable
tank, embers from the fire fell onto and burned holes in the vinyl walls of both tanks. (Id.
¶¶ 66 – 67.) Without portable tanks into which the tankers could dump their water, hand
lines attached to each tanker’s pumper applied the tankers’ water directly to the structure.
(Id. ¶ 68.) This approach was necessarily less efficient because when the tankers were
emptied, the tankers had to leave the scene to refill the tanks.5 (Id. ¶ 69.)
At 8:41 p.m., Chief Higgins radioed the dispatcher and directed him to call the
Regional Communication Center to request any available tankers go to the fire scene. (Id.
¶ 70.) By 8:44 p.m., the entire structure was fully involved in flames. (Id. ¶¶ 71, 74.)
Although at times, the firefighters were able to “darken” the flames, they could never fully
control the fire. (Id. ¶ 77.)6
Roger Audette, Defendants’ expert witness, has opined that the fire suppression efforts met or exceeded
the fire suppression efforts expected of a reasonable volunteer fire department in the same or very similar
circumstances and the defensive firefighting tactic employed by Chief Higgins and responding firefighters
was appropriate and met the standard of care expected of a reasonable volunteer fire department in
responding to the December 4, 2013 fire at Plaintiffs’ restaurant and residence. (DSMF ¶¶ 96 – 97;
Declaration of Roger Audette ¶¶ 1 – 16, ECF No. 76-24; Expert Report at 11 – 12, 15, 21 – 23, ECF No.
76-12.)
5

6

Defendants cite a photograph taken by Mary Ellen Martel at approximately 8:47 p.m. (DSMF ¶ 80; DSMF
Ex. 18, ECF No. 76-22; DSMF Ex. 19, Martel Photo 8:47 (removable media thumb drive).)
11

During the first hour of the response to the fire, Chief Higgins called for the power
company to shut off power to the structure. (DSMF ¶ 84; Defendants’ Reply Statement at
59.) Because power lines continued to supply electrical power to the structure, there was
a risk of electrocution for firefighters who operated beneath live overhead power lines.
(DSMF ¶ 82.) For example, live electrical lines, including lines connected to the structure,
can burn off, detach, and fall onto firefighters and equipment. (Id. ¶ 83.) At approximately
8:51 p.m., the power company shut down the grid on the Tremont/Southwest Harbor side
of Mount Desert Island, which shut off power to the structure. (Id. ¶ 85.)
Defendants Tadd Jewett, Matthew Lindsley, and Matthew Tetreault are members of
the Tremont Volunteer Fire Department, and Colton Sanborn, is a member of the
Southwest Harbor Volunteer Fire Department. (DSMF ¶¶ 102, 104.) During his deposition,
Mr. Cousins testified that he has no idea what Defendants Jewett, Lindsley, Tetreault, and
Sanborn did or did not do related to the fire suppression effort. (Id. ¶ 123.) Plaintiffs claim
Defendant Sanborn “gave a thumbs up and big smile” to their daughter and, on three
occasions in the spring and summer of 2014, “revved up” his engine and yelled “immatur[e]
expletives” from his window at members of Plaintiffs’ family. (Id. ¶ 124.) 7
Defendant Town of Tremont is a municipality organized under the laws of the State
of Maine that serves the Tremont community. (Id. ¶ 105.) Defendant Tremont Volunteer
Fire Department is an incorporated fire-fighting unit organized under Title 13-B of the
Maine Revised Statutes. (Id. ¶ 106.) The Southwest Harbor Volunteer Fire Department is

7

Plaintiffs filed this action in December 2014.
12

an incorporated fire-fighting unit organized under Title 13-B of the Maine Revised Statutes.
(Id. ¶ 107.)
The Verified Complaint
In the verified complaint, Plaintiffs include many accusations regarding Defendants
Keith and Heath Higgins and their dislike of Plaintiffs. For example, they state that
“[f]irefighters were told not to frequent Cap’n Nemo’s establishment [i.e., the restaurant]
or they would be reprimanded,” and that “Heath Higgins spoke out in public on several
occasions that if Cap’n Nemo’s ever caught fire they would let it burn. Witnesses will
verify this.” (Complaint at 4, ¶¶ 1, 3.) Plaintiffs have not provided any witness affidavits
to support the assertion, and they have not attested that they heard such a statement or by
whom the statement might have been relayed to them.
Plaintiffs also discuss municipal licensing challenges they had to overcome because
Defendants Keith and Heath Higgins alleged their restaurant did not meet applicable
standards. (Id. at 4 – 7, ¶¶ 5 – 9, 11 – 12.) Plaintiffs attached to their unverified amended
complaints certain documents, including emails and town meeting minutes from 2010 and
2011.

Assuming the documents are admissible (the documents have not been

authenticated), the documents demonstrate that Fire Chief Keith Higgins informed
Tremont officials that the Fire Marshal’s Office was working with Plaintiffs to finalize a
few items on a list of fire hazard-related deficiencies. (ECF Nos. 16-3, 16-4, 36-2, 36-3,
36-4.) In a December 14, 2010, letter to the Fire Marshal, Defendant Chief Higgins
reported a long list of “concerns our department has about the condition of a mixed use

13

structure in our community,” and stated that he felt it was the Department’s duty to “protect
the family and patrons from any hazards.” (ECF Nos. 16-2, 36-1.)
Plaintiffs also attached to their pleadings an email communication Chief Higgins
addressed to one “Millard Billings” on April 27, 2012. In the email, Chief Higgins
proposed that the Town install additional dry hydrants at three or four locations. (ECF Nos.
16-3, 36-6.)
Plaintiffs also attached to their pleadings a police report authored by Deputy Sheriff
Shane Campbell. According to the report, Deputy Campbell received a complaint from
Robert Cousins in June 2014 (six months after the fire) concerning the disappearance of a
plywood sign from the site of the former restaurant. In his investigation of the matter,
Deputy Campbell spoke with Chief Higgins, and Chief Higgins reportedly stated he was
familiar with the sign because it read “Fire Department Special, Blackened Had, Warm
Beer,” and that members of the department were offended by the sign. Later, Defendant
Tetreault admitted to Deputy Campbell that he had removed the sign. (ECF Nos. 16-8, 367.) The District Attorney declined prosecution. (ECF Nos. 16-9, 36-8.)
In the verified complaint, Plaintiffs assert that Judy Cousins observed Defendant
Heath Higgins operate a hose during the fire, and that he applied the water on the area 25
feet from the flames. When the water ran out, Judy Cousins asked him where the water
was and he responded, “In the ocean.” (Verified Compl. ¶ 16.) Plaintiffs also assert that

14

during the fire, Robert Cousins asked Defendant Jewett why no water was being put on the
fire, and Defendant Jewett responded that there was a concern for a “flare up.” 8 (Id. ¶ 17.)
Declaration of Plaintiff Judy Cousins
Judy Cousins filed a sworn declaration as part of Plaintiffs’ opposition to the motion
for summary judgment. In the declaration, Judy Collins asserts that the 1000 gallons of
water transported by one of the ladder trucks that responded to the fire was used for a
neighbor’s roof and could have extinguished the fire if used on Plaintiffs’ property. She
also recounted some incidents that reflect some animosity or disagreement between
Plaintiffs and certain members of the Tremont Volunteer Fire Department.
Third-Party Witness Affidavits
With their amended pleadings, Plaintiffs included affidavits from third parties Scott
Grierson and Sarah Macquin. Mr. Grierson is a former Tremont selectperson. In his April
1, 2015, affidavit Mr. Grierson states in part:
As Chairman of the Tremont Board of Selectm[e]n, I moderated meetings
during which I observed a pattern of antagonism and discord between several
members/representatives of the Tremont Volunteer Fire Department and
Robert Cousins, representing his family’s restaurant Captain Nemos.
Between 2003 and 2009, I was present when comments and discussions
pertaining to Robert Cousins and his restaurant Captain Nemos were made
both before, during, and after official meetings by certain representatives of
the Tremont Volunteer Fire Department that demonstrated a high level of
antagonism with and clear dislike for Mr. Cousins and his establishment.
(Affidavit of Scott Grierson, ECF Nos. 16-11, 36-10.)

8

Defendants deny that Defendant Jewett made this statement, but they do not cite a statement from
Defendant Jewett denying the statement. (Defendants’ Reply Statement at 48.)
15

In her April 1, 2015, affidavit, Ms. Macquinn, a member of the Southwest Harbor
Fire Department and the Tremont Volunteer Fire Department, asserts that she was
disturbed by the actions of some Tremont firefighters and the plan of attack during the fire
on Plaintiffs’ property. She maintains that the defensive plan of attack (i.e., no one to enter
the interior of the building) ordered by Chief Higgins was not required as an interior attack
would have suppressed the fire. Ms. Macquinn, who resigned from her position a month
after the fire, also reported that Captain Heath Higgins did not apply water to the structure,
but instead applied water “everywhere but the structure.” (Affidavit of Sarah Macquinn,
ECF Nos. 16-10, 36-9 ¶ 17.)
DISCUSSION
Defendants first contend that Plaintiffs have failed to generate any facts from which
a reasonable jury could conclude that Defendants were negligent. Defendants maintain
that because Plaintiffs cannot prevail on their negligence claim, they cannot prevail on their
constitutional claims.
A. Plaintiffs’ State Law Claims
1. Negligence
In counts XI and XII, Plaintiffs allege that Defendants breached the standard of care
that governed their firefighting duties. To prevail on a negligence claim, a plaintiff must
establish that the defendant owed a duty of care to the plaintiff, that the defendant breached
the duty of care, and that the plaintiff suffered an injury/damages as the result of the breach
of the duty of care. Murdock v. Thorne, 2017 ME 136, ¶ 11, 166 A.3d 119, 122; Lougee
Conservancy v. CitiMortgage, Inc., 2012 ME 103, ¶ 29, 48 A.3d 774, 785. “Whether a
16

plaintiff is owed a duty of care is a matter of law.” Stanton v. Univ. of Maine Sys., 2001
ME 96, ¶ 8, 773 A.2d 1045, 1049. Whether a breach occurred and whether the breach
caused the harm in question are questions of fact. Murdock, 2017 ME 136, ¶ 13; Reid v.
Town of Mount Vernon, 2007 ME 125, ¶ 14, 932 A.2d 539, 544 (existence of breach is
“ordinarily” a question of fact).
In support of their negligence claim, Plaintiffs cite 30-A M.R.S. §§ 3153 and 3154.
(Am. Complaint at 38 – 39.) Section 3153 imposes the duty on fire chiefs to “direct all
operations to prevent further destruction and damage.” Id. § 3153(2)(E).9 Section 3154
provides that “[f]irefighters are under a duty to extinguish all fires to which they are called,
to protect lives and property endangered by fires and to carry out all other related activities
as directed by the fire chief.” Id. § 3154(1).
While the statutes might impose upon Defendants certain general duties in their fire
suppression efforts, Plaintiffs must present evidence of the standards that governed the
efforts under the circumstances in this case, and evidence from which a reasonable jury
could conclude Defendants breached the duty and caused harm to Plaintiffs. “When a court
imposes a duty in a negligence case, the duty is always the same—to conform to the legal
standard of reasonable conduct in the light of the apparent risk.” Searles v. Trs. of St.
Joseph’s Coll., 1997 ME 128, ¶ 5, 695 A.2d 1206, 1209 (quotation marks omitted).
“Negligence is the proximate cause of damage if it plays a substantial part in causing the
Pursuant to the statutes, fire chiefs will “[p]rovide for the maintenance of all fire equipment owned by the
municipality.” 30-A M.R.S. § 3153(2)(C). While the evidence of record demonstrates that a TVFD tanker
truck broke down on the night of the fire, Plaintiffs have not introduced evidence that would support a
finding that Defendant Keith Higgins breached his duty to maintain the tanker truck. The mere fact the
truck broke down does not establish a breach of duty on the part of a fire chief.
9

17

damage and the damage is a direct result of the negligence or the damage was a reasonably
foreseeable result of the negligence.” Wheeler v. White, 1998 ME 137, ¶ 10, 714 A.2d 125,
128. A showing that there is the “possibility” that a breach was the proximate cause of
harm will not suffice, as a causation showing requires more than speculation or conjecture.
Allen v. McCann, 2015 ME 84, ¶ 9, 120 A.3d. 90, 92. “[E]ven if the probabilities are
evenly balanced, a defendant is entitled to a judgment.” Id.
Defendants contend that expert testimony is required to establish the standard of
care that governs the assessment of fire hazards, fire suppression techniques, and causation.
“[E]xpert testimony may be necessary ‘where the matter in issue is within the knowledge
of experts only, and not with the common knowledge of lay[persons].’” Montany v.
University of New England, 858 F.3d 34, 37 (1st Cir. 2017) (quoting Cyr v. Giesen, 108
A.2d 316, 318 (Me. 1954)). That is, when the standard of care against which a defendant’s
conduct will be measured and/or the harmful results of a breach of the standard are within
the understanding of experts only, the testimony of an expert witness generally is required.
Maravell v. R.J. Grondin & Sons, 2007 ME 1, ¶ 11, 914 A.2d 709, 712 – 13. An expert is
not required, however, if the nature of the alleged breach and the harm it causes are
sufficiently obvious to lie within the common knowledge. Id.
Here, Plaintiffs challenge the techniques Defendants used to suppress the fire.
Plaintiffs question the decision to employ a defensive rather than an interior attack and
Defendants’ decision to apply water to the fire and nearby properties in the manner they
did. While it is perhaps conceivable that certain firefighting approaches could be within
common knowledge, proper firefighting techniques generally and which technique to apply
18

in a particular case are matters that typically cannot fairly be considered as within the
common knowledge of laypersons. To the contrary, firefighting requires a level of training
and expertise that is not known to a layperson. Given the claims in this case (i.e., that
Defendants should have used an interior rather than a defensive approach and should not
have applied water to nearby structures or areas), expert testimony is necessary for
Plaintiffs to establish the standard of care required and whether an alternative approach
would have generated a different result. In other words, which approach Defendants should
have employed to confront the fire on Plaintiffs’ property and whether a different approach
would have produced a different result are topics that require expert testimony.
A review of the record reveals that Plaintiffs have not designated an expert
witness.10 The “lack of expert evidence in regard to a different outcome” in the absence of
an alleged breach “makes ‘the link between [the negligent act] and the alleged damage …
overly speculative.’” Corey v. Norman, Hanson & DeTroy, 742 A.2d 933, 940 (Me. 1999)
(quoting Steeves v. Berstein, Shur, Sawyer & Nelson, P.C., 1998 ME 210, ¶ 13, 718 A.2d
186, 190). Because expert testimony is required to establish the standard of care required,
whether Defendants satisfied the applicable standard, and, if not, whether Defendants’
failure to satisfy the applicable standard caused harm to Plaintiffs, and because Plaintiffs
have failed to designate an expert witness to testify to the issues, Plaintiffs cannot prevail

Plaintiffs’ contention that their reference to Kris Bearscove as an expert witness in their Initial Disclosure
(ECF No. 84-8) constitutes a designation of an expert witness is unpersuasive. Plaintiffs did not provide
the expert witness information required by Federal Rule of Civil Procedure 26(a)(2). In addition, the
declaration of Kris Bearscove (ECF No. 84-9) demonstrates that Kris Bearscove is not prepared to offer an
opinion in support of Plaintiffs’ claim.
10

19

on their negligence claims. Accordingly, Defendants are entitled to summary judgment on
Counts XI and XII.11
2. Emotional distress
In Count VIII, Plaintiffs assert a claim for the infliction of emotional distress. A
claim for emotional distress requires proof of either an underlying breach of a duty of care
(negligent infliction claim) or an intentional or reckless act involving extreme and
outrageous conduct (intentional infliction claim). Bryan v. Watchtower Bible & Tract
Soc., 1999 ME 144, ¶¶ 25, 30 & 31, 738 A.2d 839, 847 & 848. Because Plaintiffs have
not designated an expert to testify that Defendants’ approach to the fire was substandard,
Plaintiffs cannot proceed on their claim for emotional distress. That is, the record will not
support a finding that Defendants breached a duty of care, or engaged in tortious reckless
or intentional conduct, which finding would be necessary to sustain a claim for emotional
distress.12

Plaintiffs’ failure to raise a genuine issue in support of their state law claims obviates the need to address
the state law immunity doctrines raised in Defendants’ motion. (Motion at 12 – 13.)
11

“Under Maine’s jurisprudence, a court properly may determine, as a matter of law, whether undisputed
(or assumed) facts suffice to state a claim for intentional infliction of emotional distress.” LaChapelle v.
Berkshire Life Ins. Co., 142 F.3d 507, 511 (1st Cir. 1998). To the extent Plaintiffs assert a claim against
Defendant Colton Sanborn based on conduct he engaged in after the fire, i.e., expressing “thumbs up and
big smile” to their daughter and, on three occasions in the spring and summer of 2014, revving his vehicle
engine and yelling “immatur[e] expletives” at members of Plaintiffs’ family (DSMF ¶ 124), while such
conduct might be offensive, under Maine law, civil liability does not ordinarily arise from expressive
conduct of this kind. Curtis v. Porter, 784 A.2d 18, 22 (Me. 2001) (“To withstand a defendant’s motion for
summary judgment on a claim of intentional infliction of emotional distress, a plaintiff must present facts
[demonstrating, inter alia, that] the conduct was so extreme and outrageous as to exceed all possible bounds
of decency and must be regarded as atrocious, utterly intolerable in a civilized community.” (internal
quotation marks omitted)); see, e.g., Berry v. Worldwide Language Resources, Inc., 716 F. Supp. 2d 34, 54
(D. Me. 2010) (“Liability … does not extend to mere insults, indignities, threats, annoyances, petty
oppressions ….” (quoting Restatement (Second) of Torts § 46 cmt. d)); Botka v. S.C. Noyes & Co., 2003
ME 128, ¶¶ 10 & 19, 834 A.2d 947, 951, 953 (affirming entry of summary judgment where plaintiff alleged
12

20

3. Constitutional Claims under 42 U.S.C. § 1983
Plaintiffs assert claims against Defendants for the alleged deprivation of Plaintiff’s
rights under the Due Process Clause (Count IV) and the Equal Protection Clause (Count II)
of the Fourteenth Amendment. Defendants argue they are entitled to summary judgment
based on the doctrine of qualified immunity, given that Plaintiffs have not raised a genuine
issue whether Defendants’ fire suppression efforts breached the applicable standard of care.
(Motion at 13.)
Pursuant to the federal civil rights statute:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage ... subjects, or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law ...
42 U.S.C. § 1983.
Section 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a
method for vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S.
266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). To maintain
a claim under section 1983, a plaintiff must establish: “1) that the conduct complained of
has been committed under color of state law, and 2) that this conduct worked a denial of
rights secured by the Constitution or laws of the United States.” Barreto-Rivera v. MedinaVargas, 168 F.3d 42, 45 (1st Cir. 1999).

defendant “interrupted, berated, insulted, and harassed” plaintiff, “initiated a physical confrontation,” and
“acted imperiously”).
21

Defendants do not dispute that they acted under color of state law in their role as
volunteer firefighters. Instead, they argue that Plaintiff cannot demonstrate liability under
§ 1983 where Plaintiffs cannot establish that Defendants breached the applicable standard
of care. Defendants also contend they are protected from liability by the doctrine of
qualified immunity.
Government officers are entitled to qualified immunity unless they violate a
constitutional right that was “clearly established” when they engaged in the conduct at
issue. Hunt v. Massi, 773 F.3d 361, 367 (1st Cir. 2014). “Qualified immunity shields an
officer from suit when she makes a decision that, even if constitutionally deficient,
reasonably misapprehends the law governing the circumstances she confronted.” Brosseau
v. Haugen, 543 U.S. 194, 198 (2004) (citing Saucier v. Katz, 533 U.S. 194, 206 (2001)).
“This strain of immunity aspires to ‘balance [the] desire to compensate those whose rights
are infringed by state actors with an equally compelling desire to shield public servants
from undue interference with the performance of their duties and from threats of liability
which, though unfounded, may nevertheless be unbearably disruptive.’” Cox v. Hainey,
391 F.3d 25, 29 (1st Cir. 2004) (quoting Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir.
1992)).
Defendants’ assertion of qualified immunity requires the Court to assess: (1)
“whether the facts, taken most favorably to the party opposing summary judgment, make
out a constitutional violation” and (2) “whether the violated right was clearly established
at the time that the offending conduct occurred.” Ford v. Bender, 768 F.3d 15, 23 (1st Cir.
2014). When a court considers whether the constitutional right was clearly established at
22

the time, the court must determine (a) “whether the contours of the right, in general, were
sufficiently clear,” and (b) “whether, under the specific facts of the case, a reasonable
defendant would have understood that he was violating the right.” Id.
1. Substantive due process
“[T]o establish a substantive due process claim plaintiffs must first establish a
deprivation of a ‘protected interest’ in life, liberty, or property.” Velez-Diaz v. VegaIrizarry, 421 F.3d 71, 79 (1st Cir. 2005) (citing Washington v. Glucksberg, 521 U.S. 702,
722 (1997), and Rivera v. Rhode Island, 402 F.3d 27, 33 – 34 (1st Cir. 2005)). Plaintiffs
must also demonstrate that the deprivation of the protected right was caused by government
conduct. Id.
In this case, Plaintiffs have demonstrated a loss of property, but without expert
testimony, they cannot show that Defendants caused the loss of the property. Furthermore,
where executive action is at issue (as opposed to legislative action), the threshold liability
question is “whether the behavior of the governmental officer is so egregious, so
outrageous, that it may fairly be said to shock the contemporary conscience.” GonzalezFuentes v. Molina, 607 F.3d 864, 880 (1st Cir. 2010) (quoting County of Sacramento v.
Lewis, 523 U.S. 833, 847 n. 8 (1998)). Significantly, “negligence, without more, is simply
insufficient to meet the conscience-shocking standard.” Id. (quoting J.R. v. Gloria, 593
F.3d 73, 80 (1st Cir. 2010)). Because Plaintiffs have not demonstrated a non-speculative
evidentiary basis to support a finding of negligence or other tortious conduct, or that
Defendants’ conduct caused Plaintiffs’ loss of property, Plaintiffs have similarly failed to

23

establish a factual basis for a substantive due process claim. In other words, the facts, when
viewed most favorably to Plaintiffs, do not support a substantive due process violation.
Even if the facts could support the finding of a constitutional violation, the record
lacks any evidence or citation to any authority to suggest that the “contours of the [alleged]
right were sufficiently clear” or that a “reasonable defendant would have understood he
was violating that right” under the circumstances of this case. Ford, 768 F.3d at 23.

In

the event the record could be construed to find a constitutional violation, therefore,
Defendants are entitled to qualified immunity.
In addition, because Plaintiffs have failed to substantiate the due process claim, the
Town of Tremont is also entitled to summary judgment. City of Los Angeles v. Heller, 475
U.S. 796, 799 (1986) (per curiam) (holding that, in suits brought under 42 U.S.C. § 1983,
an underlying constitutional violation by officers is necessary for a successful municipal
liability claim); Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 504 (1st Cir. 2011) (“An
underlying constitutional tort is required to proceed under a municipal liability theory.
Where, as here, there is no constitutional violation by the employees of the municipality,
there can be no liability predicated on municipal policy or custom.”).
2. Equal protection
The evaluation of an equal protection claim begins with consideration of two issues:
(1) whether “the person, compared with others similarly situated, was selectively treated”;
and, if so, (2) whether “such selective treatment was based on impermissible considerations
such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or
malicious or bad faith intent to injure a person.” Rubinovitz v. Rogato, 60 F.3d 906, 910
24

(1st Cir. 1995) (quoting Yerardi’s Moody St. Rest. & Lounge, Inc. v. Bd. of Selectmen, 878
F.2d 16, 21 (1st Cir. 1989)). As explained above, Plaintiffs have not provided a sufficient
evidentiary basis for a jury to conclude that Defendants violated the applicable firefighting
standards or that they suffered any loss as the result of Defendants’ conduct. Plaintiffs,
therefore, cannot establish that they were treated differently than anyone else would have
been treated under the circumstances. Plaintiffs’ equal protection claim, therefore, fails.
CONCLUSION
Based on the foregoing analysis, I recommend the Court grant Defendants’
Amended Motion for Summary Judgment (ECF No. 77), and enter judgment in favor of
Defendants on all remaining claims.
NOTICE
A party may file objections to those specified portions of a magistrate
judge's report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. Section 636(b)(1)(B) for which de novo review by the
district court is sought, together with a supporting memorandum, within
fourteen (14) days of being served with a copy thereof. A responsive
memorandum shall be filed within fourteen (14) days after the filing of the
objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court's order.

/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 28th day of June, 2018.

25