Dupont v. Aavid Thermal Techs., Inc.

Decision Date15 May 2002
Docket NumberNo. 2001–027.,2001–027.
Citation798 A.2d 587,147 N.H. 706
Parties Raymond E. DUPONT, Administrator of the Estate of Raymond E. Dupont, Jr., v. AAVID THERMAL TECHNOLOGIES, INC. & another.
CourtNew Hampshire Supreme Court

McKean, Mattson & Latici, P.A., of Gilford (Steven M. Latici on the brief and orally), for the plaintiff.

Devine, Millimet & Branch, P.A., of Manchester (Robert C. Dewhirst and Michael J. Kenison on the brief, and Mr. Dewhirst orally), for the defendants.

McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Wilbur A. Glahn, III on the brief) and New England Legal Foundation, of Boston, Massachusetts (Michael E. Malamut on the brief), for Business and Industry Association of New Hampshire, as amicus curiae.


The plaintiff, Raymond E. Dupont, administrator of the estate of Raymond E. Dupont, Jr., appeals the orders of the Superior Court (McGuire , J.) denying his second motion to amend his writ of summons and granting the motion of the defendants, Aavid Thermal Products, Inc. (ATP), and its parent company, Aavid Thermal Technologies, Inc. (ATTI) to dismiss his negligence action. We affirm in part, reverse in part and remand.

The facts, as alleged in the plaintiff's first amended writ of summons and viewed in the light most favorable to him, are as follows. On January 21, 1998, Robert Hilliard shot and killed the decedent, Raymond E. Dupont, Jr., in the parking lot of ATP's Laconia facility. After shooting the decedent, Hilliard shot and killed himself.

Hilliard was a co-worker of the decedent, although he worked in a different department and on a different shift. Hilliard initially confronted the decedent at his work station. The decedent's supervisor observed Hilliard in the decedent's work area, knew that Hilliard was not scheduled to work that day and that his presence violated company policy, but did not contact company security personnel. The confrontation concerned Hilliard's belief that the decedent was having an affair with his girlfriend. At some point after the confrontation began, the decedent's supervisor elicited the help of another supervisor, and both supervisors, suspecting that the confrontation might turn violent, escorted Hilliard and the decedent out of the building and into the company parking lot. As the supervisors observed the conversation becoming more heated and Hilliard becoming more agitated, another co-worker informed them that Hilliard had a loaded handgun. After learning of this, the supervisors did not call the police, but attempted to terminate the conversation by ordering the decedent to return to work. Hilliard requested more time with the decedent, which the supervisors allowed. Hilliard then shot the decedent and soon after shot himself.

One of the decedent's co-workers knew that Hilliard was addicted to pain medication, was violent and aggressive, and had previously threatened the decedent with violence. Another co-worker, who also knew that Hilliard was abusing a pain medication, learned on the day of the shooting that he was on his way to the Laconia facility to confront the decedent and that he was armed. Neither employee reported this information to company supervisors.

The plaintiff brought a common law negligence action against the defendants, who moved to dismiss it. While the motion to dismiss was pending, the plaintiff moved for leave to amend the writ, which the court granted. The court granted the defendants' motion to dismiss on the ground that the defendants had no duty to protect the decedent from Hilliard's attack, and thus could not be liable for it as a matter of law. Following the dismissal of his first amended writ, the plaintiff filed a second motion to amend his writ. The court found that the motion was untimely because there was no longer any writ to amend, and denied it.

On appeal, the plaintiff argues that dismissal of his first amended writ was error because the employment relationship in and of itself gave rise to a duty to protect against foreseeable third party criminal attacks and imposed upon the defendants the duty to protect the decedent from Hilliard's attack. The plaintiff also contends that the conduct of the decedent's supervisors imposed a duty upon the defendants to protect the decedent from Hilliard's attack. Finally, he argues that denial of his second motion to amend was error because it denied him the opportunity to cure the deficiencies the court noted in its order dismissing the first amended writ.

"We review motions to dismiss to determine if the plaintiff's allegations are reasonably susceptible of a construction that would permit recovery." Langlois v. Pomerleau, 143 N.H. 456, 460, 726 A.2d 1285 (1999) (quotation omitted). We then engage in a "threshold inquiry that tests the facts in the complaint against the applicable law." Williams v. O'Brien, 140 N.H. 595, 597–98, 669 A.2d 810 (1995). In so doing, we assume the truth of all well-pleaded facts alleged by the plaintiff, construing all inferences in the light most favorable to the plaintiff. See Bohan v. Ritzo, 141 N.H. 210, 213, 679 A.2d 597 (1996).

To prevail upon his negligence claims against the defendants, the plaintiff must show that: (1) they owed the decedent a duty; (2) they breached this duty; and (3) the breach proximately caused the decedent's injury. See Hickingbotham v. Burke, 140 N.H. 28, 34, 662 A.2d 297 (1995). Whether the defendants owed the decedent a duty is a question of law. See Walls v. Oxford Management Co., 137 N.H. 653, 656, 633 A.2d 103 (1993).

The accepted maxim is that a private citizen has no general duty to protect others from the criminal attacks of third parties. See id . In certain limited circumstances, however, we have recognized such a duty. We have held that the duty to protect may arise because: (1) a special relationship exists, see Marquay v. Eno, 139 N.H. 708, 717, 662 A.2d 272 (1995) ("schools share a special relationship with students entrusted to their care, which imposes upon them certain duties of reasonable supervision"); (2) special circumstances exist, see Iannelli v. Burger King Corp., 145 N.H. 190, 194, 761 A.2d 417 (2000) (unruly behavior of rowdy youths created unreasonable risk of injury to restaurant patrons and gave rise to duty of restaurant owner to protect patrons); or (3) the duty has been voluntarily assumed, see Walls , 137 N.H. at 659, 633 A.2d 103 (landlord who undertakes to provide security has duty to act with reasonable care with respect to protecting tenants from criminal attack).

I. Special Relationship

We first address the plaintiff's contention that the defendants owed the decedent a duty to protect against Hilliard's attack because of the "special" nature of the employment relationship. We decline to hold that the employment relationship is the type of "special" relationship that gives rise to a duty to protect against foreseeable criminal attacks by third parties.

This is an issue of first impression for this court. Although some courts have assumed for analytical purposes that the employment relationship is "special," see, e.g. , Ozment v. Lance, 107 Ill.App.3d 348, 63 Ill.Dec. 281, 437 N.E.2d 930 (1982), we are not aware of any decisions imposing liability upon an employer for the criminal acts of a third person based solely upon the "special" nature of an employment relationship. Indeed, at oral argument, the plaintiff conceded that no such decisions exist.

Courts in other jurisdictions have expressly declined to impose liability upon an employer merely because of the employment relationship. See Parham v. Taylor, 402 So.2d 884, 886–87 (Ala.1981), overruled on other grounds by Lathan Roof America, Inc. v. Hairston, No. 1001162, 828 So.2d ––––, ––––, 2002 WL 363662, at *6 (Ala. Mar.8, 2002) ; Thoni Oil Magic Benzol Gas Stations, Inc. v. Johnson, 488 S.W.2d 355, 357–58 (Ky.1972). The courts in Parham and Thoni explained as follows:

In the ordinary situation we indulge the assumption that people will obey the law rather than violate it. Thus, absent unusual circumstances, an employer need not anticipate injury to an employee through the criminal acts of third persons. In the ordinary situation an employer has no duty to provide police protection for employees.... In spite of police protection afforded by the state it is a fact of life that citizens are sometimes assaulted, beaten, robbed, raped or murdered at home, at work or on the streets. This is a problem which confronts all citizens equally and for which there is often no civil remedy.... We feel ... that employers should not be saddled with ... liability [for the criminal acts of third persons] except in the most extraordinary and highly unusual circumstances.

Parham , 402 So.2d at 886 (quotation omitted); Thoni , 488 S.W.2d at 357.

The plaintiff argues that the employer-employee relationship is similar to the school-student relationship we found "special" in Marquay . In Marquay , we followed the Restatement (Second) of Torts § 314A at 118 (1965), which delineates the types of relationships that give rise to a duty to aid or protect. Under the Restatement (Second) of Torts § 314A, these relationships are those of common carrier/passenger, innkeeper/guest, landowner/invitee and "[o]ne who is required by law to take or who voluntarily takes ... custody of another under circumstances such as to deprive the other of his normal opportunities for protection." In Marquay, we held that there was a special relationship between schools and students under this fourth category of special relation. Marquay , 139 N.H. at 717–18, 662 A.2d 272. We noted, in particular, that school attendance was compulsory and that students, therefore, could not avail themselves of the protection of their parents or guardians. Id . at 717, 662 A.2d 272. Under these circumstances, we held that the social importance of protecting children's interests outweighed the importance of immunizing schools from extended liability. Id .


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