MAINE SUPREME JUDICIAL COURT                                                        Reporter of Decisions
Decision:    2015 ME 122
Docket:      Was-14-462
Submitted
  On Briefs: July 1, 2015
Decided:     September 3, 2015

Panel:          SAUFLEY, C.J., and MEAD, GORMAN, JABAR, and HJELM, JJ.



                             MELANIE (CURRIE) STEADMAN

                                                    v.

                                        STEVEN PAGELS

HJELM, J.

         [¶1]     Steven Pagels appeals from a judgment of the District Court

(Calais, Alexander, J.) finding him liable to Melanie (Currie) Steadman for sexual

assault and battery, intentional infliction of emotional distress, and negligent

infliction of emotional distress, and awarding Steadman both compensatory and

punitive damages. Pagels contends that the court erroneously admitted evidence of

his prior bad acts, see M.R. Evid. 404(b), and improperly found Pagels liable for

both intentional and negligent infliction of emotional distress. Pagels also argues

that several of the court’s findings are not supported by evidence in the record.1

We affirm.


   1
      Our review of the record demonstrates that, contrary to Pagels’s argument, the evidence supports the
factual findings that he challenges, see Pelletier v. Pelletier, 2012 ME 15, ¶ 13, 36 A.3d 903 (findings of
fact will be affirmed on appeal if they are supported by competent evidence in the record), and we do not
discuss this argument further.
2

                                         I. BACKGROUND

        [¶2] We review the evidence in the light most favorable to Steadman as the

prevailing party. Jacob v. Kippax, 2011 ME 1, ¶ 2, 10 A.3d 1159.

        [¶3] Steadman, who was born in 1986, is Pagels’s biological daughter. As a

child, she lived in the family residence in Cherryfield with Pagels; her mother, who

was married to Pagels; her two younger brothers; her half-sister, who was born to

her mother from a prior relationship; and occasionally Pagels’s son from a prior

relationship.

        [¶4] When Steadman was approximately seven or eight years old,2 Pagels

began to sexually assault her in ways that escalated over time. Early on, the sexual

contact consisted of Pagels touching her breasts and genitals. Pagels began taking

Steadman’s clothes off during the assaults when she was between the ages of ten

and eleven. When Steadman was approximately twelve years old, her half-sister,

whom Pagels had also sexually assaulted, left the family residence to go to college.

Pagels’s assaults against Steadman then began to include incidents where he

required her to touch his penis, and forcibly penetrated her with his penis,

    2
      Pagels filed an untimely answer to the complaint. Over Steadman’s objection, the court allowed the
portion of the answer that responded to the allegations in the complaint but did not allow any affirmative
defenses, such as the statute of limitations, or a jury trial demand. The Legislature has repealed the
statute proscribing a statute of limitations for claims of sexual acts against minors. See 14 M.R.S.
§ 752-C (2014). Additionally, any statute of limitations period is tolled while a plaintiff has a significant
mental disability, such as Steadman's. See 14 M.R.S. § 853 (2013) (this section has since been amended,
see P.L. 2013 ch. 329, § 1 (codified at 14 M.R.S. § 853 (2014))). Therefore, as the court noted, based on
the combined effect of these two statutes, it is doubtful that an affirmative defense based on the statute of
limitations would have been availing to Pagels.
                                                                                 3

including occasions when he bound her with rope.        The assaults occurred in

various locations. When Steadman attempted to resist, Pagels threatened to beat

her if she did not comply. Pagels also told Steadman that if she disclosed the

assaults to her mother, the mother would become angry and jealous of Steadman.

      [¶5] Nonetheless, in 2001 Steadman reported some of the assaultive conduct

to her mother but was too afraid to divulge many of the details. Her mother

removed Steadman from the home, and Steadman and her mother ultimately

resettled in Calais. Steadman’s mother divorced Pagels and was granted “full

custody” of Steadman while Steadman’s brothers remained with Pagels.

      [¶6] On weekends, Steadman’s mother returned to the family home in

Cherryfield to visit her sons, leaving Steadman alone in Calais. As her mother

spent an increasing amount of time at the Cherryfield residence, Steadman

eventually learned that her mother had reconciled with Pagels and in fact had

remarried him. Later, her mother permanently returned to Cherryfield to live with

Pagels. Although her mother left money for food, Steadman often purchased drugs

and alcohol instead.

      [¶7] After Steadman left her family’s home in Cherryfield, she experienced

nightmares, cut and burned herself, and used illegal drugs.      She left school,

although she did graduate from an alternative education program, and as a juvenile

was charged with several drug-related offenses. After she completed school she
4

became involved in a series of abusive relationships. She moved to Florida with an

abusive man and became addicted to crack cocaine. Later, she returned to Maine

and attended a methadone clinic. When she applied to college, she had no choice

but to ask Pagels for money to buy books. He insisted she work for him but when

he made sexual advances toward her, she left.

      [¶8] In July 2012, Steadman commenced this action, asserting claims for

sexual assault and battery, intentional infliction of emotional distress, and

negligent infliction of emotional distress. Before trial, Pagels filed a motion in

limine to exclude evidence of his past sexual conduct with other females. The

court issued a pretrial order denying the motion, but limiting the evidence as

follows:

      [Pagels’s] motion to exclude evidence of prior “sexualized” acts
      between [Pagels] and two other named individuals is DENIED. The
      Court finds this evidence, as described by both [Steadman] and
      [Pagels], is relevant to show motive, opportunity, pattern, practice and
      interest in relations with individuals under the age of 18 in the home,
      office, and on boats under [Pagels’s] control. The relevant evidence
      of acts on this issue would be limited to evidence of contacts between
      [Pagels] and the witnesses when the witnesses were under the age of
      18, and statements [Pagels] made to the witnesses, at any time,
      regarding the contacts that occurred when the witnesses were under
      18.

The court also ruled that Steadman could call one of the witnesses, Pagels’s sister,

to testify out of order because of scheduling issues and that because of the
                                                                                       5

sequence of testimony, “some of her testimony may be conditionally admitted,

subject to later qualification.”

      [¶9] A three-day bench trial began on September 29, 2014. Steadman

testified to the history of assaults inflicted by Pagels, and she further testified about

her course of mental health counseling. She presented evidence that she has been

diagnosed with post-traumatic stress disorder, major depressive disorder,

obsessive-compulsive disorder, and opiate addiction in remission. Because of her

psychiatric conditions, the Social Security Administration found Steadman to be

fully disabled.

      [¶10]       During the trial, Steadman also called three witnesses whose

testimony is at issue on this appeal. The first of those witnesses was Steadman’s

half-sister, who is seven years older than Steadman and whose testimony was

presented through a transcript from her deposition. She testified that when she was

an adolescent, Pagels spanked her bare buttocks, touched her breasts, and got on

top of her and engaged in simulated intercourse. She further testified that the

sexual assaults against her ended when she left the family residence to go to

college.   The second witness was Pagels’s sister, who testified that in the

mid-1970s, when she was approximately sixteen years old and Pagels was twenty,

he sexually assaulted her as many as six times. The third witness was a woman

who had babysat Steadman and her siblings, and who worked briefly for Pagels’s
6

boat company. She testified that he sometimes touched her arms in a way that

made her feel uncomfortable, and that once he told her that he wanted “to be with”

her and invited her to try out the bed in his apartment.

      [¶11] Pagels repeatedly objected to evidence of his conduct toward these

other females.    Although the court sustained some of Pagels’s objections, it

overruled others. In many of those instances when the court admitted the evidence

over Pagels’s objections, it explicitly stated that it would consider the evidence

only on issues of motive, opportunity, and other purposes that are permitted

pursuant to Maine Rule of Evidence 404(b), and that it would not treat the

testimony as evidence of Pagels’s character.

      [¶12]    In October 2014, the court issued a twenty-eight-page decision

containing comprehensive findings of fact.        The court found Pagels liable to

Steadman for all three tort claims alleged in her complaint. The court assessed

damages without distinguishing among the three liability claims.        As special

damages, the court awarded $33,594.10 for the costs of past medical care,

consultation and treatment; $10,000 for future treatment and counseling; and

$45,000 for lost earnings. The court also awarded general damages of $1,300,000

for past, present and future pain, suffering, mental anguish, and loss of enjoyment

of life, and it assessed $500,000 in punitive damages.
                                                                                     7

      [¶13] In its findings, the court did not refer to any of the incidents described

at trial by Pagels’s sister or the former babysitter. The court, on the other hand, did

refer to the testimony of Steadman’s half-sister and set out findings consistent with

the testimonial descriptions of Pagels’s sexual assaults of her. The court then

stated, “The sexual or sexualized contacts with the stepdaughter ended when she

entered college in the Fall of 1997.         The most serious sexual assaults on

[Steadman] began shortly thereafter.”

      [¶14] Pagels did not file a motion for further findings of fact, see M.R.

Civ. P. 52(b), but appealed the judgment.

                                  II. DISCUSSION

      [¶15] Pagels argues that the court erroneously admitted evidence of prior

bad acts and that it improperly found him liable for negligent infliction of

emotional distress. We address these contentions in turn.

A.    Evidence of Prior Bad Acts

      [¶16] Pagels claims that pursuant to Maine Rule of Evidence 404(b), the

court erroneously admitted evidence of his prior bad acts through the testimony of

Steadman’s half-sister, his own sister, and the woman who had babysat for the

family. He asserts that the evidence of prior bad acts is tantamount to improper

character evidence barred by Rule 404(b), and that the court’s judgment

demonstrates that the court used the evidence improperly.
8

        [¶17]    At the time of trial, Maine Rule of Evidence 404(b) provided,

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show that the person acted in conformity therewith.”3 That

rule, however, allowed an exception to the general principle of exclusion by

permitting the admission of evidence of prior bad acts for any other “permissible

purpose,” see State v. DeLong, 505 A.2d 803, 805 (Me. 1986), such as “motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident.” In re Rachel J., 2002 ME 148, ¶ 17, 804 A.2d 418 (quotation marks

omitted); M.R. Evid. 404(b) Advisory Committee’s Note. Here, when the court

admitted evidence of prior bad acts that Pagels committed against others, it stated

expressly that it would consider that evidence for only those non-propensity

purposes. This is consistent with the court’s pretrial order limiting the scope and

purpose of evidence of prior bad acts. We examine this series of rulings for

reversible error.

        1.      Testimony of Steadman’s Half-Sister

        [¶18]    At the outset of the trial, Steadman offered into evidence the

transcribed testimony of her half-sister. Pagels objected, claiming that it contained

inadmissible evidence of his prior bad acts against her. The court overruled the


    3
     M.R. Evid. 404(b) has since been replaced, effective January 1, 2015, with restyled language that
does not affect the substance of the rule. See M.R. Evid. 404(b) (restyled Maine Rules of Evidence).
                                                                                                           9

objection, stating that “I am allowing evidence of prior acts as they related to plan,

motive, opportunity, consistent practice, things like that, you know, not—

obviously, not—obviously, I’m not considering with regard to character, but for

those other things.” The court also noted that “it [would] have to go over [the

deposition] after [it heard] all the testimony.” Because Pagels objected to the

admission of this evidence, “we review the trial court’s decision to admit the

evidence pursuant to Rule 404(b) for clear error and its determination pursuant to

Rule 403 for an abuse of discretion.”4                   State v. DeMass, 2000 ME 4, ¶ 11,

743 A.2d 233; In re Rachel J., 2002 ME 148, ¶ 17, 804 A.2d 418.

        [¶19] In its written decision, the court issued findings, which are based on

the testimony of Steadman’s half-sister, that Pagels had “inappropriate physical

contacts with his stepdaughter” several times and that the contact ended when she

entered college in the fall of 1997. The court further found that soon thereafter,

“[t]he most serious sexual assaults on [Steadman] began.” As described by the

court, the sole use of evidence that Pagels sexually assaulted the half-sister

therefore was on the issue of Pagels’s motive and opportunity—that when one

victim of Pagels’s sexual assaults left the family home, he redirected his attention

to Steadman, which corresponds to and corroborates evidence that the assaults
   4
      Although Pagels did not renew his objection to the testimony later in the trial after the court had the
opportunity to read the deposition transcript, he made his objection clear on the record when Steadman
offered the transcript into evidence. Because the court was fully aware of Pagels’s opposition to the
evidence, his objection remained preserved.
10

against her significantly worsened at that time. The court therefore considered this

evidence for a “permissible purpose,” DeLong, 505 A.2d at 805, namely, the

evolution of Pagels’s tortious conduct committed against Steadman herself.

      [¶20] This application of the evidence was relevant to the issues in the case

and was not improper, because the court did not treat it as propensity evidence in

violation of Rule 404(b). See State v. Larson, 577 A.2d 767, 770 (Me. 1990) (“[A]

court sitting as the factfinder is presumed to accept admissible evidence only for

the purpose for which it may be admitted.”).        The court’s description of the

evidence and its express discussion about its significance corroborates the

assurance that it articulated on the record when it admitted the evidence over

Pagels’s objection that it would not consider the deposition testimony as evidence

of Pagels’s character but would consider it only for purposes not prohibited by

Rule 404.

      [¶21] Further, although Pagels argues that the magnitude of the damages

awarded to Steadman demonstrates that the court took an inflamed view of his

conduct, the damages award is fully supported by a measured assessment of

evidence of the harm he caused to Steadman. See Lee v. Scotia Prince Cruises

Ltd., 2003 ME 78, ¶ 21, 828 A.2d 210. Therefore, nothing in the record supports a

claim that the court violated its own ruling, and the court’s ruling that admitted the

testimony of Steadman’s half-sister was not an erroneous application of Rule 404.
                                                                                 11

      [¶22] Similarly, contrary to Pagels’s argument on appeal, admission of

Steadman’s half-sister’s testimony was not improper pursuant to Rule 403 because

the court was entitled to conclude that the probative value of that evidence was not

substantially outweighed by the risk of unfair prejudice. See State v. Lockhart,

2003 ME 108, ¶ 37, 830 A.2d 433 (evidence determined to be admissible pursuant

to Rule 404 is then subjected to scrutiny pursuant to Rule 403); Field & Murray,

Maine Evidence § 404.4 at 142 (6th ed. 2007). Any unfair prejudice created by the

evidence would be the court’s misuse of it as proof of Pagels’s propensity to

engage in the assaultive conduct alleged by Steadman.        See State v. Thomes,

1997 ME 146, ¶ 11, 697 A.2d 1262 (the nature of the prejudice created by

admission of evidence of prior bad acts is “an undue tendency to move the tribunal

to decide on an improper basis.” (quotation marks omitted)); see also Field

& Murray, Maine Evidence § 404.5 at 145 (noting that when evidence of prior bad

acts describes sex crimes, the risk of unfair prejudice is enhanced and requires the

court to exercise “great caution” in deciding whether to admit the evidence).

      [¶23] Here the risk of unfair prejudice was ameliorated when the court

stated on the record that it would not treat the evidence in a way that would

improperly breach the prohibition against character evidence created in

Rule 404(b).    Because the evidence carried probative value to explain the

chronology of abuse that Pagels inflicted on Steadman, and because the court
12

expressly circumscribed the use to which it would put the evidence, it acted within

the bounds of the discretion created by Rule 403 when it admitted the evidence.

         2.    Testimony of Pagels’s Sister and the Family’s Babysitter

         [¶24] Pagels also argues that the court erred by admitting testimony from

his sister and the family babysitter about his conduct toward them. We need not

address these claims of error, however, because there is no indication that the court

relied on this evidence or gave it any weight whatsoever in reaching its verdict.

The court’s findings spanned nearly thirty pages, and, in contrast to findings based

on the testimony of Steadman’s half-sister, they made no mention of the testimony

presented by either of these witnesses of prior bad acts, and the findings did not

even refer to either of those witnesses.5 Additionally, Pagels did not move for the

issuance of further findings of fact to address the question of whether the testimony

of either his sister or the former babysitter influenced the court’s verdict in any

way. Thus, we are left without any suggestion in the court’s decision that it treated

their testimony as material to its adjudication of Steadman’s claims. In fact, the

absence of any reference to this evidence in the court’s findings suggests that the

court placed no weight on it, even though the court had concluded that the




     5
     The court’s findings made reference to a babysitter who described Steadman’s behavior, but that
babysitter was a different person than the one who testified about Pagels’s advances toward her.
                                                                                                         13

evidence was admissible. Therefore, even if the court committed error6 when it

admitted that testimony—an issue we need not decide—Pagels has not

demonstrated that the evidence was a factor in the court’s decision, and any error

was therefore harmless. See M.R. Civ. P. 61.

B.       Emotional Distress Claims

         [¶25] The court found Pagels liable to Steadman on her claims for both

intentional infliction of emotional distress (IIED) and negligent infliction of

emotional distress (NIED). Pagels contends here that the court erred by finding

him liable for NIED because that claim was subsumed by the liability Steadman

established for IIED. See Curtis v. Porter, 2001 ME 158, ¶ 19, 784 A.2d 18.

Pagels goes on to argue that as a result of the court’s determination of liability for

the two counts, the court awarded damages in excess of what could be supported

by only the IIED claim—in effect, giving Steadman a double recovery. Pagels,

however, did not argue to the court at any time that a finding of liability for IIED

would, as a matter of law, foreclose a finding of liability for NIED. Pagels could

have raised the issue preemptively prior to trial, and the argument also could have

been the basis for post-judgment relief in the trial court. Because he did not do so,


     6
     Pagels objected to the testimony of his sister and therefore preserved the claim of error for appellate
review. He did not, however, object to the portions of the former babysitter’s testimony he challenges
here. (He did object to other portions of that testimony, and the court sustained many of them.) If we
were to reach that challenge, we therefore would consider the issue only for obvious error. See Searles v.
Fleetwood Homes of Pa., Inc., 2005 ME 94, ¶ 33, 878 A.2d 509.
14

Pagels has failed to preserve this issue for appeal and raises it for the first time

here, and so we do not consider it. See Dobson v. Dep’t of the Sec’y of State,

2008 ME 137, ¶ 3, 955 A.2d 266. Rather, Pagels’s challenge to the court’s finding

that he is liable to Steadman on her claim for NIED must be limited to the more

general question of whether the evidence is sufficient to support the verdict on that

count. See Pelletier v. Pelletier, 2012 ME 15, ¶ 13, 36 A.3d 903.

      [¶26] To succeed on her NIED claim, Steadman was required to prove that

Pagels owed a duty to her; that he breached that duty; that Steadman sustained

severe emotional distress; and that Pagels’s breaching conduct caused that harm.

Curtis, 2001 ME 158, ¶ 18, 784 A.2d 158. In Curtis, we noted that there is no

general duty to avoid causing emotional harm to others through negligent conduct.

Id. For that reason, claims for NIED are often pleaded improvidently, and, in fact,

are more properly treated as claims for recovery of emotional distress damages that

must be pursued through tort claims that are less limited in scope. Id. ¶ 22.

Nonetheless, independent claims for NIED may be viable in bystander claims or

when the parties stand in a “special relationship” to each other. Id. ¶ 19.

      [¶27] The relationship between a custodial parent and child is a “special

relationship” that gives rise to a heightened responsibility of care. See Estate of

Cilley v. Lane, 2009 ME 133, ¶ 17, 985 A.2d 481; Lenoci v. Leonard, 21 A.3d 694,

699 (Vt. 2011); see also Restatement (Third) of Torts: Liability for Physical
                                                                                                      15

& Emotional Harm § 40(b)(7) (2012) (a custodian has a special relationship with

the person who is in that person’s custody, if the custodian is required by law to

exercise custody and “has a superior ability to protect” the person in custody).

Such a relationship therefore supports a claim for NIED.

        [¶28] Here, the evidence warranted a finding by the court that Pagels was

Steadman’s custodial parent during the years when he assaulted her and that the

parties were therefore in a special relationship that imposed a legal duty on Pagels

to avoid causing severe emotional harm to his daughter through conduct that was

sexually and physically assaultive and emotionally abusive. Therefore, presented

with this evidence, the court acted within its authority in finding that the

relationship between Steadman and Pagels gave rise to a duty that supports a claim

for NIED.

        [¶29] The evidence also plainly supported the court’s findings that Pagels

breached this duty,7 that Pagels’s tortious conduct caused injury to Steadman, and

that the injury Steadman suffered rose to the level of severe emotional distress.

The court therefore did not err when it concluded that Pagels was liable to

Steadman on her claim for NIED.


   7
       Pagels argues there is no evidence that any actionable conduct was “negligent.” In making that
argument, Pagels views an NIED claim too narrowly. A claim for NIED is based on the breach of a duty.
For the reasons set out in the text, Pagels was subject to a duty of care not to inflict severe emotional
harm on his daughter. The evidence warranted a finding that he breached that duty, thus rendering him
liable for NIED.
16

        [¶30] Additionally, the court’s judgment establishes that the court did not

award double damages for the same emotional distress resulting from Pagels’s

negligent and intentional infliction of emotional distress. In its order, the court

addressed the liability issues first and concluded that Steadman had proved each of

the three tort claims that she had asserted against Pagels. The court then addressed

the amount of Steadman’s total general and special damages without attributing or

assigning her injuries to a specific cause of action. It is therefore clear that the

judgment is for a comprehensive but single award of damages, even though there

were several legal theories that supported that unified award.

        [¶31] We therefore conclude that the court’s formulation of the judgment

and award of damages was not erroneous.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Daniel A. Pileggi, Esq., Roy, Beardsley, Williams & Granger,
        LLC, Ellsworth, for appellant Steven Pagels

        Sarah I. Gilbert, Esq., Elliott & MacLean, LLP, Camden, for
        appellee Melanie (Currie) Steadman


Calais District Court docket number CV-2012-35
FOR CLERK REFERENCE ONLY
