Marquay v. Eno

New Hampshire Supreme Court · Torts

Tortschild abuse reporting statuteRSA 169-C:29private right of actionnegligence per sespecial relationshipschool supervisionnegligent retention

Facts

Three former students alleged that they were sexually abused by teachers or coaches employed by the Mascoma Valley Regional School District, in some instances beginning in junior high or high school and continuing beyond graduation. They also alleged that various other school employees, including teachers, coaches, superintendents, principals, and secretaries, either knew or should have known of the abuse. The complaints asserted state-law claims based on negligence, the child-abuse reporting statute, the state anti-discrimination statute, state constitutional provisions, and respondeat superior. The certified questions focused on whether school personnel, school districts, and school administrative units could be liable under New Hampshire law for failing to report or prevent the abuse.

Issue

Does RSA 169-C:29 create a private right of action for failure to report child abuse, and can its violation constitute negligence per se in these cases? What common-law duties do school employees and school entities owe to protect students from sexual abuse by school employees, including duties that may extend beyond graduation? Do the alleged facts support a damages remedy directly under part I, article 2 of the New Hampshire Constitution?

Rule

A statute may support civil liability in two distinct ways: as an express or implied statutory cause of action, or as negligence per se where an underlying common-law duty already exists. RSA 169-C:29 creates no private right of action, and its reporting duty is not the standard of care for negligent supervision claims because reporting differs from supervision; however, it may inform the standard of care in negligent hiring or retention claims if reporting would have prevented subsequent abuse. Schools have a special relationship with students that creates a duty of reasonable supervision for employees with supervisory responsibility and for principals and superintendents, limited by foreseeability and by the period in which parental protection is impaired. A school and officials with hiring or firing authority may also be directly liable for negligent hiring or retention of employees they knew or should have known had a propensity to sexually abuse students, including for injuries after graduation where there is a causal connection between the employment and the injury. No constitutional tort for damages will be recognized where established remedies are adequate.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a public middle school in Concord, New Hampshire, several staff members suspected that a music teacher was sexually abusing a 13-year-old student but never made the report required by New Hampshire's child-abuse reporting statute. Years later, the student sues those staff members seeking damages based solely on their violation of the reporting statute.

How should the court rule on the student's statute-based claim?

Explanation. The majority distinguished between a statutory cause of action and negligence per se. A plaintiff may sue directly under a statute only if the legislature expressly or impliedly intended civil liability. The child-abuse reporting statute contains criminal penalties but no indication of legislative intent to create a private damages action, and the court refused to infer one. Thus a claim based solely on violation of the statute fails. (Derived from Marquay v. Eno (n.d.).)