THE STATE OF NEW HAMPSHIRE
GRAFTON, SS. SUPERIOR COURT
No. 07-C-048
Jane Doe, et al. v. Stephanie Raymond, et al.
ORDER ON MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT
The plaintiffs have brought suit against the defendants for negligence, alleging that the defendants are civilly liable for the injuries to the minor plaintiff Jane Doe ("Jane"), resulting from criminal actions of a third party, Christopher Raymond. The defendants have filed a Motion to Dismiss, or in the Alternative, for Summary Judgment, arguing that they owed no duty to Jane to protect her from the criminal actions of third parties. The plaintiffs object. Because, taking the facts in the light most favorable to the plaintiffs, the court determines that "special circumstances" surrounding the events alleged were sufficient to trigger a duty on the part of the defendants, the defendants' motions are denied.
STANDARD OF REVIEW
In ruling on a motion to dismiss, the court must determine "whether the plaintiff¿s allegations are reasonably susceptible of a construction that would permit recovery." Hobin v. Coldwell Banker Residential Affiliates, Inc., 144 N.H. 626, 628 (2000) (quoting Miami Subs Corp. v. Murray Family Trust & Kenneth Dash P'ship, 142 N.H. 501, 516 (1997)). This threshold inquiry involves testing the facts alleged in the pleadings against the applicable law. Williams v. O'Brien, 140 N.H. 595, 598 (1995). Dismissal is appropriate "[i]f the facts as pled cannot constitute a basis for legal relief" Hobin, 144 N.H. at 628 (quoting Buckingham v. R.J Reynolds Tobacco Co., 142 N.H. 822, 825 (1998)). When the court tests the pleadings, it "assume[s] the truth of the facts alleged in the plaintiffs pleadings and construes [a]ll reasonable inferences in the light most favorable to him." Hobin, 144 N.H. at 628 (citation omitted). However, the court "need not accept allegations in the writ that are merely conclusions of law." Konedal v. Hollis/Brookline Coop. Sch. Dist., 143 N.H. 256, 258 (1998) (quoting Gardner v. City of Concord, 137 N.H. 253, 255-56 (1993)).
In acting upon a motion for summary judgment, a court is required to construe the pleadings, discovery, affidavits and all inferences properly drawn from them in the light most favorable to the non-moving party to determine whether the moving party has established the absence of a dispute over any material fact and the right to judgment as a matter of law. Estate of Joshua T. v. State of New Hampshire, 150 N.H. 405, 407 (2003). The party objecting to a motion for summary judgment "may not rest upon mere allegations or denials of his pleadings, but hisresponse, by affidavits or by reference to depositions, answers to interrogatories, or admissions, must set forth specific facts showing that there is a genuine issue [of material fact] for trial." RSA 491: 8-a, IV (1997). "An issue of fact is material if it affects the outcome of the litigation." Panciocco v. Lawyers Title Ins. Corp., 147 N.H. 610, 613 (2002).
FACTUAL BACKGROUND
The court takes the facts in the light most favorable to the plaintiffs. See Hobin, 144 N.H. at 628; Joshua T., 150 N.H. at 407. The defendants, Stephanie Raymond ("Mrs. Raymond") and Phillip Raymond ("Mr. Raymond"), hired Jane to walk their dog in 2003, when she was ten years old. The defendants considered Jane a "lost child" who craved attention. They gave her parental advice as well as gifts, including a hand-me-down computer. The defendants' son, Christopher Raymond ("Christopher"), had divorced and moved in with the defendants prior to their hiring Jane. The defendants dispute their knowledge of Christopher's criminal or violent history, which the plaintiffs allege that the defendants knew or should have known. Specifically: (1) in 1992, Christopher physically assaulted his sister, Angie; (2) in 1995, Christopher was convicted of supplying alcohol to a minor female; (3) in 1996, when he was twenty-two years old, Christopher engaged in sexual relations with a fifteen-year-old girl on at least five occasions in the defendants' home, knowing that such conduct was against the law.
The terms of Jane's employment with the defendants required that she enter the defendants' home, retrieve the dogs, exercise them, return them to the home, and mark her time on a calendar. In 2005, when the contact between Christopher and Jane occurred, both defendants were employed outside of the home. As Christopher was unemployed, he was frequently at the defendants' home without the defendants.
The defendants saw Christopher and Jane sitting together on the lawn, in the kitchen, and in the living room, and they heard Christopher speak to Jane on the phone. Christopher and Jane would kiss and touch one another in Christopher's bedroom when the defendants were home. The defendants saw Christopher touch Jane's buttocks.
On May 3, 2005, when Christopher was thirty-one years old, Mrs. Raymond saw twelve-year-old Jane on Christopher's bed in his bedroom. Mrs. Raymond told Jane that she should not be on a man's bed and that Jane's mother would not like her to be there. Mrs. Raymond believed that Jane was infatuated with Christopher. Between May 12 and May 26, 2005, Christopher sexually assaulted Jane several times.
In June 2005, Mary Doe, Jane's mother ("Mrs. Doe"), began to suspect an inappropriate relationship between Jane and Christopher. Mrs. Doe telephoned Mrs. Raymond to express her concern. Mrs. Raymond did not mention that she had seen Jane in Christopher's bedroom, and assured Mrs. Doe that there was nothing to worry about. Despite Mrs. Raymond's assurances, Mrs. Doe alerted the Lebanon police. The police interviewed Jane, then intercepted computer and phone communications between Christopher and Jane at a time when the defendant Mr. Raymond was home. Following one hour of intercepted communications, Christopher was arrested, and the home was searched.
On February 1, 2006, Christopher pleaded guilty to six counts of aggravated felonious sexual assault related to his contact with Jane. Mrs. Raymond apologized to Mrs. Doe at the sentencing hearing.
DISCUSSION
"Claims for negligence rest primarily upon a violation of some duty owed by the offender to the injured party. Absent a duty, there is no negligence." Walls v. Oxford Mgmt. Co., 137 N.H. 653,656 (1993) (citing Guitarini v. Company, 98 N.H. 118, 118 (1953)). "Whether a duty exists in a particular case is a question of law." Id. (citations omitted). "[T]he existence of a duty does not arise solely from the relationship between the parties, but also from the need for 'protection against reasonably foreseeable harm.''' Hungerford v. Jones, 143 N.H. 208, 211 (1998) (quoting Morvay v. Hanover Ins. Cos., 127 N.H. 723, 725 (1986). Because "[d]uty and foreseeability are inextricably bound together," Manchenton v. Auto Leasing Corp., 135 N.H. 298, 304 (1992) (quotation omitted), "[i]t is a question of law for determination by the court whether the defendants' conduct created such a foreseeable risk of harm to the particular plaintiff that defendants were under a duty to avoid it." Paquette v. Joyce, 117 N.H. 832,834 (1977) (citations omitted).
"All persons have a duty to exercise reasonable care not to subject others to an unreasonable risk of harm." Remsburg v. Docusearch, 149 N.H. 148, 153 (2003) (citing Walls, 137 N.H. at 656). However, "a private citizen has no general duty to protect others from the criminal attacks of third parties." Dupont v. Aavid Thermal Technologies, 147 N.H. 706, 709 (2002). "Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the law." Walls, 137 N.H. at 657-58 (quotation omitted).
In certain limited circumstances, however, we have recognized that there are exceptions to the general rule where a duty to exercise reasonable care will arise. We have held that such a duty may arise because: (1) a special relationship exists; (2) special circumstances exist; or (3) the duty has been voluntarily assumed.
Remsburg, 149 N.H. at 154 (citations omitted).
"The special circumstances exception includes situations where there is 'an especial temptation and opportunity for criminal misconduct brought about by the defendant.'" Id. (quoting Walls, 137 N.H. at 658). "These circumstances include when the opportunity for criminal misconduct is brought about by the actions or inactions of the owner or where overriding foreseeability of such criminal activity exists." Iannelli v. Burger King Corp., 145 N.H. 190, 194 (2000). "The exact occurrence or precise injuries need not have been foreseen." Id. "Rather, where the defendant's conduct has created an unreasonable risk of criminal misconduct, a duty is owed to those foreseeably endangered." Remsburg, 149 N.H. at 154. "This exception follows from the rule that a party who realizes or should realize that his conduct has created a condition which involves an unreasonable risk of harm to another has a duty to exercise reasonable care to prevent the risk from occurring." Id.
"When determining whether a duty is owed, we examine the societal interest involved, the severity of the risk, the likelihood of occurrence, the relationship between the parties, and the burden upon the defendant." Hungerford, 143 N.H. at 211. In summarizing the law, the Restatement (Second) of Torts sets f011h the basis of duty as a balancing test, from which the three exceptions above have stemmed:
It is not possible to state definite rules as to when the actor is required to take precautions against intentional or criminal misconduct. As in other cases of negligence, it is a matter of balancing the magnitude of the risk against the utility of the actor's conduct. Factors to be considered are the known character, past conduct, and tendencies of the person whose intentional conduct causes the harm, the temptation or opportunity which the situation may afford him for such misconduct, the gravity of the harm which may result, and the possibility that some other person will assume the responsibility for preventing the conduct or the harm, together with the burden of the precautions which the actor would be required to take.
Restatement (Second) of Torts, §302B, comment f at 93 (1965).
The plaintiffs assert that the defendants owed a duty of care to Jane due to a "special relationship" between the parties, specifically, between the defendants and the criminally acting third party (their son, Christopher), and between the defendants and Jane. The plaintiffs cite Walls for this proposition: "The first [exception] arises when a special relationship, such as that of innkeeper-guest, or common carrier-passenger, exists between the parties." Walls, 137 N.H. at 658 (citing Restatement §314A). The court interprets this language and that of the Restatement to create a duty when a "special relationship" exists between the defendant and the injured party, not when a relationship exists between the defendant and the criminally acting third party, unless the third party is under the defendant's control. See Restatement (Second) of Torts, §302B, comment e (F) at 92 (1965).
The foremost case in which the New Hampshire Supreme Court has held that a duty exists because of the existence of a special relationship is Marquay v. Eno, 139 N.H. 708 (1995). The court held that a school has a duty to the students in its care, citing Restatement (Second) of Torts §314A at 118 (1965) for the proposition that: '''One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a ... duty to the other.'" Marquay, 139 N.H. at 717.
The defendants point out that the factors influencing the court's decision in Marquay v. Eno are not present in this case: specifically, "the compulsory character of school attendance, . . . the expectation of parents and students for and their reliance on a safe school environment, and the importance to society of the learning activity which is to take place in public schools," are not present in the employment of a voluntary dog-walker. Id. Furthermore, the defendants did not take formal custody of Jane. Their reaching out to her in the form of gifts and advice does not suffice to create a relationship in loco parentis, as exists between a student and school. Accordingly, the court finds that no "special relationship" between the defendants and Jane existed sufficient to impose a legal duty upon the defendants to protect Jane from the criminal actions of third parties.
However, the court finds and rules that "special circumstances" surrounding the events were sufficient to trigger a duty on the part of the defendants. "Where the actor has brought into contact or association with the other a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct, under circumstances which afford a peculiar opportunity or temptation for such misconduct," a duty exists to prevent the harm to the "other." Restatement (Second) of Torts §302B, comment e, (D) at 91 (1965). In the present case, the defendants knew or should have known that their son was particularly likely to commit intentional misconduct, because (1) Christopher had a history of mental illness; (2) Christopher had been convicted of supplying alcohol to a minor girl; (3) Christopher knowingly had prior illegal sexual relations with a minor girl in the defendants' home; and (4) the defendants saw Christopher speaking with and touching Jane, including on her bottom. The harm which came to pass was particularly foreseeable, given that the defendants perceived Jane as a "lost child" who "craved attention"; Mrs. Raymond believed that Jane was romantically interested in Christopher, and Mrs. Raymond saw Jane lying on Christopher's bed days before the assaults took place. Christopher and Jane had the opportunity to be at the defendants' home alone together during the day, as she performed her dog-walking tasks and he remained at home. The potential harm from a relationship between a thirty-one-year-old and a twelve-year-old is great, and the cost of avoidance low.
Although this is the first application in New Hampshire of the Restatement (Second) of Torts §302B, comment e, (D) ("special circumstances") of which the court is aware, the court believes its holding to be consistent with prior decisions of the New Hampshire Supreme Court.
In Ianelli v. Burger King, 145 N.H. 190 (2000), the New Hampshire Supreme Court held the defendant restaurant owed the plaintiff customer a duty of reasonable care from the criminal aggressions of third parties, reasoning:
A duty exists on the part of a landowner when it is foreseeable that an injury might occur as a result of the landowner's actions or inactions. ... In this case, the question becomes, could the defendant have anticipated a risk of injury to the plaintiffs when other patrons were engaged in offensive conduct for a measurable period of time? We answer that question in the affirmative.
Ianelli, 145 N.H. at 193-94. As in Ianelli, the defendants in the present case were aware of the conduct leading up to the criminal activity, and failed to take any reasonable precautions to prevent the assaults from coming to pass.
In Dupont v. Aavid Thermal Technologies, 147 N.H. 706, 709 (2002), the New Hampshire Supreme Court held "that while employers have no general duty to protect employees from criminal attacks, such a duty may arise when the employer has unreasonably created a condition of employment that foreseeably enhances the risk ofcriminal attack." The court further held that "[a]n employer has a duty to protect an employee who, while acting within the scope of employment, 'comes into a position of imminent danger of serious harm and this is known to the employer or to a person who has duties of management. '" Id. at 713 (quoting Restatement (Second) of Torts §314B). In Dupont,
the plaintiff alleged that the supervisors knew that [the decedent's co-worker] was armed and agitated, and thus they allegedly knew that the decedent was in a 'position of imminent danger of serious harm.' He further alleged that the supervisors failed to take reasonable measures to prevent the attack they suspected would occur. He also alleged that there was a prior history of similar incidents of potential violence in the workplace and of employees bringing weapons to work. ... [W]e hold that these allegations sufficiently establish that the defendants owed the decedent a duty to protect him from [his co-worker's] attack.
Id. at 714.
The New Hampshire Supreme Court likewise imposed a duty for the criminal actions of third parties in Remsburg v. Docusearch, 149 N.H. 148 (2003). In that case, the defendant investigator provided a third party with information regarding the identity and address of the plaintiff¿s decedent, which information the third party used to track down and kill the decedent. The Court reasoned that even if murder were not an imminently foreseeable consequence of providing personal information, "[t]he threats posed by [the crimes of] stalking and identity theft lead us to conclude that the risk of criminal misconduct is sufficiently foreseeable so that an investigator has a duty to exercise reasonable care in disclosing a third person's personal information to a client." Id. at 155. Remsburg was partially decided under the "special circumstances" exception. The court reasoned that "there is 'an especial temptation and opportunity for criminal misconduct brought about by the defendant,'" Id. at 154 (quoting Walls, 137 N.H. at 658), and "where the defendant's conduct has created an unreasonable risk of criminal misconduct, a duty is owed to those foreseeably endangered," Id. (quoting Walls, 137 N.H. at 658). Likewise, in the present dispute, the defendants provided an especial opportunity for criminal misconduct by bringing into proximity in their home a "lost" pre-teen girl and an age-inappropriate thirty-one-year-old with a penchant for young girls, by giving them unsupervised time and space alone together, and by failing to heed their own suspicions or to alert Jane's mother to their suspicions about the developing relationship between Christopher and Jane.
In Berry v. Watchtower Bible and Tract Society o/New York, Inc., 152 N.H. 407 (2005), the New Hampshire Supreme Court did not impose a duty on the defendant, but did follow an analysis under the Restatement (Second) of Torts consistent with this court's reasoning today. In Berry, the plaintiffs had been abused by their father for years during their childhood. The defendant was the Jehovah's Witness church where the children's mother reported the abuse and asked for advice. She was told to be a good wife and to refrain from reporting the abuse. When the children became aware of the advice the church elders had given their mother, they sued, alleging that the church had a duty to report the abuse and to protect them from known ongoing harm. The Berry Court denied that the church owed the plaintiffs a duty, responding that the plaintiffs' mother "had her own independent and overarching duty to protect her children from abuse perpetrated by her husband and had a common law obligation to intervene regardless of any advice she received." Id. at 414. The Court distinguished Ianelli, Remsburg, and Dupont, explaining that in those cases, "the defendants exercised control, either over commercial property or information they sold to third parties. Their activities and conduct created a condition or enhanced a foreseeable risk of criminal conduct which they could independently and affirmatively control." Id. (citing Iannelli, 145 N.H. at 193-95; Remsburg, 149 N.H. at 153-55). "The same was true in Dupont, where workplace supervisors allegedly did not act appropriately in protecting an employee from a criminal attack on workplace premises." Id. at 414-15 (citing Dupont, 147 N.H. at 713-14). In Berry, however, the Court found the situation to be sufficiently distinct to warrant a different result. The church elders "learned of alleged criminal activity happening on property [the church] did not own or control and occurring solely between family members. The elders did not create the risk of harm to the children nor control its cessation or continuation." Id. at 415. The present case bears a greater similarity to Ianelli, Remsburg, and Dupont than to Berry. Here, the criminal misconduct took place on the defendants' premises, and the defendants had the ability to control it. Unlike the elders in Berry, the defendants here could have removed the opportunity for abuse, but failed to take steps to do so. Unlike Berry, Jane did not have the benefit of her mother's knowledge of the abuse, nor did her mother have the opportunity to exercise her independent and superseding duty to stop the abuse. On the facts as alleged, Mrs. Doe did not suspect a relationship between Christopher and Jane until after the abuse had occurred. The defendants had not informed her of the relationship as they saw developing, and when Mrs. Doe ultimately did deduce the existence of inappropriate contact between Christopher and Jane, Mrs. Raymond assured her that there was no basis for her concern. Thus, until after the assaults had occurred, Jane did not have the Berry children's alternative protections against the foreseeable harm.
The New Hampshire Supreme Court's most recent treatment of the subject, Ward v. Inishmaan Associates Limited Partnership, 156 N.H. 22 (2007), is specifically limited to a landlord's liability to a tenant for the criminal actions of third parties. The Court followed the precedent in Walls, which cited the Restatement (Second) of Torts with approval in determining four potential, and three viable, exceptions to the general rule that landlords owe no duty to protect their tenants from the criminal actions of third parties. Because Ward's "evidence failed to establish that the defendants created or were responsible for a physical defect on the premises that foreseeably enhanced the risk of criminal attack[,] [n]or did the plaintiffs evidence establish that the defendants undertook to provide security against criminal attacks," the Court found no basis on which to impose a duty upon the defendant. The Court's fact-based holding in Ward does not undercut the reasoning leading to this court's decision today: Ward recognized the possibility of a duty, but found that the plaintiffs facts fell short of establishing the existence of that duty, whereas this court finds and rules that the plaintiffs have created disputes of material fact concerning the existence of a duty sufficient to survive a pre-trial disposition on the merits.
Having established an issue of disputed fact on the existence of a duty, in order to prevail upon their negligence claims against the defendants, the plaintiffs must show that the defendants breached their duty and that the breach proximately caused the decedent's injury. See Dupont v. Aavid Thermal Technologies, 147 N.H. 706, 709 (2002) (citing Hickingbotham v. Burke, 140 N.H. 28, 34 (1995)). Such issues are not currently before the court.
Because, for the foregoing reasons, the plaintiffs allegations are reasonably susceptible of a construction that would permit recovery, the defendants' motion to dismiss is denied. Because, for the foregoing reasons, there are genuine issues of material fact concerning the existence of a duty, the defendants' motion for summary judgment is denied.
SO ORDERED.
May 23, 2008 Steven M. Houran,
Presiding Justice
