Marquay v. Eno

• Court: New Hampshire Supreme Court
• Writing for the Court: HORTON; JOHNSON
• Citation: Marquay v. Eno, 139 N.H. 708, 662 A.2d 272 (N.H. 1995)
• Decision Date: 11 July 1995
• Docket Number: No. 93-198,93-198
• Parties: , 102 Ed. Law Rep. 609 Yvonne MARQUAY and another v. Michael ENO and another.

Page 272

662 A.2d 272

139 N.H. 708, 102 Ed. Law Rep. 609

Yvonne MARQUAY and another v. Michael ENO and another.

No. 93-198.

Supreme Court of New Hampshire.

July 11, 1995.

Van Dorn & Cullenberg, Hanover (Sheldon M. Katz on the briefs and orally), for plaintiffs.

Stebbins, Bradley, Wood & Harvey, Hanover (David H. Bradley on the joint briefs and orally), for defendant Bonnie Robinson.

Devine, Millimet & Branch, P.A., Manchester (Cynthia A. Satter on the joint briefs and orally at rehearing), for defendant David Miller.

Robert L. Hermann, Jr. Law Office, Manchester (David Woodbury and Mary Ann Mueller on the joint briefs) for defendants Mascoma Valley Regional School Dist., School Administrative Unit # 62, School Administrative Unit # 32, John Carr, Daniel Whittaker and Patricia Rocke.

McNeill & Taylor, P.A., Dover (Malcolm R. McNeill, Jr. and Lynne Dennis on the joint brief), for defendant Richard Bressett.

Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (Theodore Wadleigh on the joint supplemental brief), for defendants Jean Sullivan, William Bellion, Barbara K. Mitchell, and Terri Pelletier.

Bouchard & Mallory, P.A., Manchester (Christine Friedman on the brief and on the joint supplemental brief), for defendants Michael Eno and Brian Erskine.

Daschbach, Kelly & Cooper, Lebanon (Deborah J. Cooper on the joint supplemental brief).

Kidder & Lawson, Laconia (Bradley F. Kidder on the joint supplemental brief).

Brian Adams, pro se, filed no brief.

James F. Allmendinger, Concord, by brief, for NEA-New Hampshire, as amicus curiae.

HORTON, Justice.

This case comes to us by way of certified State law questions from the United States District Court for the District of New Hampshire (McAuliffe, J.). See Sup.Ct.R. 34.

The plaintiffs are three women who were students in the Mascoma Valley Regional School District. In separate complaints filed in the district court, each plaintiff alleges that she was exploited, harassed, assaulted, and sexually abused by one or more employees of the school district. According to the complaints, Lisa Burns was sexually abused by Brian Erskine, a high school teacher, beginning in her sophomore year and continuing beyond graduation; Jennifer Snyder was sexually abused by Michael Eno, a sports coach and teacher, beginning in the seventh grade and continuing beyond graduation; and Yvonne Marquay was sexually abused by Eno beginning in the seventh grade and by Brian Adams, also a teacher, beginning in high school. Each plaintiff also alleges that a host of school employees, including other teachers, coaches, superintendents, principals and secretaries either were aware or should have been aware of the sexual abuse. None of the complaints alleges where any of the sexual abuse occurred, or whether it occurred during school hours.

The plaintiffs seek damages against the "abusing employees," the "non-abusing employees," the school district and the school administrative units on a variety of State and federal theories. State law claims against the abusing employees are based on negligence, assault and battery, and due process and equal protection violations of the State Constitution. State claims against the non-abusing employees, who knew or should have known of the abuse, and against the school district and school administrative units are based on negligence; violation of RSA 169-C:29 (1990), the child abuse reporting statute; violation of RSA 354-A:8 (1984) (recodified at RSA 354-A:17 (Supp.1994)), the State anti-discrimination statute; violation of due process and equal protection guarantees of the State Constitution; and respondeat superior. After the defendants moved to dismiss various State law claims, the district court certified to us the following questions:

(1) Does N.H.REV.STAT.ANN. § 169-C:29 create a private right of action such that plaintiff students may recover against defendant teachers, coaches, superintendents, principals, secretaries, school districts and school administrative units based on their failure to report alleged incidents of sexual abuse and misconduct by defendant teachers/coaches Eno, Adams, and Erskine, if they knew, or if they had reason to know of such abuse and misconduct?

(2) Does New Hampshire common law impose a duty upon defendant teachers, coaches, superintendents, principals, secretaries, school districts and school administrative units to protect plaintiff students by reporting alleged sexual misconduct to the proper authorities or taking other protective measures, if they knew, or render them liable if they should have known, that plaintiffs were being sexually harassed, assaulted or abused by defendants in positions such as those occupied by defendants Eno, Adams and Erskine?

(3) If the Court finds that the identified defendants owed a duty to report the alleged conduct of Eno, Adams and Erskine under N.H.REV.STAT.ANN. § 169-C:29 and/or New Hampshire common law, does that duty also apply to known conduct occurring after plaintiffs' graduation from high school?

(4) Does the alleged failure of defendant teachers, coaches, superintendents, principals, secretaries, school districts and school administrative units to report the alleged sexual misconduct of Eno, Adams and Erskine, or, does the alleged conduct of Eno, Adams and Erskine, if proved, constitute a violation of plaintiffs' right to enjoy life and liberty and to seek and obtain happiness as guaranteed by Part 1, Art. 2 of the New Hampshire Constitution so as to give rise to a private right of action and right of recovery in favor of plaintiff students?

(5) Does the alleged failure of defendant teachers, coaches, superintendents, principals, secretaries, school districts and school administrative units to report the alleged sexual misconduct of Eno, Adams, and Erskine, constitute a violation of the plaintiff students' rights to equal protection under the law as guaranteed by Part 1, Art. 2 of the New Hampshire Constitution so as to give rise to a private right of action and right of recovery in favor of plaintiff students?

I. Relationship of Statutory Violation to Civil Liability

The first certified question asks whether RSA 169-C:29, which, under penalty as a misdemeanor, requires that any person "having reason to suspect that a child has been abused or neglected shall report the same [to the State]," creates a private right of action in favor of abused children against those who have violated the statute's reporting requirement. In light of the discussion in the parties' briefs, answering this question requires consideration of a broader issue that this court has yet to address comprehensively; namely, the relationship between statutory duties and civil liability.

At first glance, our cases appear to be inconsistent on this issue. Everett v. Littleton Construction Co., 94 N.H. 43, 46 A.2d 317 (1946), instructs that "the violation of a penal statute is an actionable wrong only when the Legislature expressly so provides ..., or when the purpose and language of the statute compel such inference...." Id. at 46, 46 A.2d at 319 (quotation omitted). We have also held, however, that "a causal violation of a statutory standard of conduct constitutes legal fault in the same manner as does the causal violation of a common-law standard of due care," Moulton v. Groveton Papers Co., 112 N.H. 50, 52, 289 A.2d 68, 71 (1972), and that "[t]he breach of a statutory duty results in liability ... when the plaintiff is in a class the statute is designed to protect and the injury is of the type that the statute is intended to prevent," Island Shores Estates Condo. Assoc. v. City of Concord, 136 N.H. 300, 307, 615 A.2d 629, 633 (1992). The plaintiffs assert that Everett effectively has been overruled and that because the legislature intended to protect schoolchildren from the type of abuse alleged, civil liability may be based on violation of the statute. The defendants argue that Everett remains controlling, but acknowledge that several of our subsequent opinions have predicated civil liability on the violation of a statute; they suggest that we have yet to delineate clearly when civil liability can be based on the violation of a statute.

The apparent inconsistency in our jurisprudence arises from a failure to distinguish two distinct bases of civil liability: (1) statutorily expressed or implied causes of action; and (2) negligence per se. The former, recognized in Everett, is the principle that whether or not the common law recognizes a cause of action, the plaintiff may maintain an action under an applicable statute where the legislature intended violation of that statute to give rise to civil liability. The doctrine of negligence per se, on the other hand, provides that where a cause of action does exist at common law, the standard of conduct to which a defendant will be held may be defined as that required by statute, rather than as the usual reasonable person standard. See Broderick v. Watts, 136 N.H. 153, 160, 614 A.2d 600, 604 (1992). The doctrine of negligence per se, however, plays no role in the creation of common law causes of action. Thus, in many cases, the common law may fail to recognize liability for failure to perform affirmative duties that are imposed by statute. But cf. Weldy v. Town of Kingston, 128 N.H. 325, 330-31, 514 A.2d 1257, 1260 (1986).

Recognizing this distinction, we first inquire whether the plaintiff could maintain an action at common law. See Morris, The Role of Criminal Statutes in Negligence Actions, 49 Colum.L.Rev. 21, 21-22 (1949); Thayer, Public Wrong and Private Action, 27 Harv.L.Rev. 317, 329-31 (1914); see also Linden, Tort Liability for Criminal Nonfeasance, 44 Canadian B.Rev. 25, 27, 41 (1966); Fricke, The Juridical Nature of the Action Upon the Statute, 76 Law Q.Rev. 240, 265 (1960). Put another way, did the defendant owe a common law duty of due care to the plaintiff? If no common law duty exists, the plaintiff cannot maintain a negligence...