OK, just to play Devil's Advocate for a minute here (or, now for our weekly session of Classroom Law on Court TV ):
Posted below is a past New Hampshire Supreme Court case that is very favorable to the WTS position in the Berry girls' case, and has surely been cited by them big time in their briefs (it was mentioned briefly by WTS lawyer Donald Gardner in the audio, which has been posted on these boards several times, of the oral argument session before the NH Supreme Court.)
The case, Marquay V. Eno, was a case in which plaintiff students, alleging that they were sexually abused at school, sued a school district, and certain teachers/administrators, for failing to report the alleged abuse to authorities or otherwise do anything about it. A key question answered by the Court's decision was: Does the New Hampshire child abuse reporting law (which is a criminal, not civil statute) create a private (civil) right of action, so that a civil lawsuit (as opposed to a criminal prosecution) may be brought for its violation? The answer given to that question by the NH Supreme Court, as you can read below, was a very clear: No.
This is a very relevant case since, as we know, the centerpiece of the Berry girls' case is the child abuse reporting law and the failure by the elders/WTS to report. Although the case is based (in name at least) on per se negligence, not on the failure to report, the judge, in (originally) allowing the case to proceed, must have expected to see more evidence of negligence that just failure to report by itself, since, under the precedent of this Marquay case, if failure to report is all you have, there is no (civil) case. It was evidently because he did not, at a later time, satisfactorily see such additional evidence that he dismissed the case, granting the WTS motion for summary judgment (the appeal of which is now being decided by the NH Supreme Court).
(Evidently, in the judge's view, this additional evidence, such as it was, would only have proved clergy malpractice, which is not recognized as a valid cause of action for First Amendment reasons, i.e., the state cannot constitutionally entangle itself in deciding what standards must be met for clergy practice, with all the vast and varied beliefs and practices of the myriad religions.)
Anyway, the Marquay v. Eno case reads as follows (I have posted only the portion relevant for our discussion, you can find the whole thing at:
Marquay v. Eno, 139 N.H. 708, 662 A.2d 272, 102 Ed. Law Rep. 609 (1995)
Yvonne MARQUAY and another
Michael ENO and another.
Supreme Court of New Hampshire.
July 11, 1995.
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 action, even though the defendant has violated a statutory duty. If a common law duty does exist and there is an applicable statute, the defendant, in a negligence action, will be held to the statutory standard of conduct if the plaintiff is in a class the legislature intended to protect, and the harm is of a type the legislature intended to prevent. This is the negligence per se test we articulated in Groveton Papers, Island Shores, and many other cases. Whether or not a common law duty exists, however, a plaintiff may maintain an action directly under the statute if a statutory cause of action is either expressed or implied by the legislature. This is the principle we recognized in Everett.
Although the legal commentators have seized on the distinction discussed above--i.e., whether a common law cause of action exists--it is one that few courts from other jurisdictions have appreciated. One of those few, the Oregon Supreme Court, articulated the distinction and its significance in language that we need not improve upon:
[A]n initial distinction must be made between (1) cases in which liability would be based upon violation of a statutory duty when there is also an underlying common law cause of action, and (2) cases in which liability would be based upon a violation of a statute when there is no underlying common law cause of action.
A common example of a case of the first type is an action for damages for negligence in which it is contended that violation of a duty imposed by statute is negligence per se in that the statutory duty is the standard of conduct of a reasonably prudent person, although other elements of a cause of action must still be shown. The test for determining whether violation of the statute constitutes negligence per se in such a case ... is (1) whether the injured person is a member of the class intended by the legislature to be protected, and (2) whether the harm is of the kind which the statute was intended to prevent.
[T]he approach to be taken by this court is somewhat different in cases in which there is no underlying common law cause of action and when the court is called upon to, in effect, "create" or "recognize" a new tort. In such a case it must still be determined whether the plaintiff is a member of the class protected by the statute and whether the harm inflicted is the type intended to be protected against. The court must undertake further analysis, however, by an examination of the statute to determine whether there exists any explicit or implicit legislative intent that a violation of a statute should give rise to a tort cause of action.
Bob Godfrey Pontiac, Inc. v. Roloff, 291 Or. 318, 630 P.2d 840, 844-45 (1981) (citations omitted).
Turning to the present case and keeping in mind the distinction between negligence per se and statutory causes of action under a statute, we ask two questions: (1) whether the legislature intended civil liability to flow from violation of the reporting statute; and (2) whether the doctrine of negligence per se should play any role in this case.
We hold that the reporting statute does not support a private right of action for its violation because we find no express or implied legislative intent to create such civil liability. First, we note that where the legislature has intended that civil liability flow from the violation of a statute, it has often so provided. See, e.g., RSA 358-A:10 (1984) (deceptive trade practices). Where, as here, civil liability for a statutory violation would represent an abrupt and sweeping departure from a general common law rule of nonliability, we would expect that if the legislature, which is presumed to recognize the common law, see Niemi v. Railroad, 87 N.H. 1, 9-10, 173 A. 361, 366 (1934), intended to impose civil liability it would expressly so provide. Here there was no expressed intent. Nor can we divine any implied intent. The reporting statute was originally enacted in 1965, applying only to physicians. Laws 1965, 193:1. It was amended in 1971 to extend the reporting requirement to all persons and to provide a $200 fine for its violation. Laws 1971, 531:2. In 1973, the penalty section was amended to provide that a violation would constitute a misdemeanor. Laws 1973, 532:8. Despite specific amendment of the penalty section, nothing in the legislative history suggests that civil liability was contemplated, let alone intended. In sum, considering that imposition of civil liability for all reporting violations would represent a sharp break from the common law and neither the statute nor the legislative history directly reveal any such intent, we are unwilling to say that violation of the child abuse reporting statute supports a private right of action. Accord Fischer v. Metcalf, 543 So.2d 785 (Fla.Dist.Ct.App.1989) (finding no cause of action under similar Florida reporting statute); Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587 (1991) (no cause of action under Kansas reporting statute).
We now turn to the negligence per se question, considering the relevance of the reporting statute in cases where a common law cause of action exists based on an alleged failure to exercise a recognized duty of reasonable supervision. As discussed previously, use of a statute to establish the standard of care is limited to situations where a common law cause of action exists, and then, only if the statute is "applicable." Whether a statutory standard is applicable depends, in part, on whether the type of duty to which the statute speaks is similar to the type of duty on which the cause of action is based. See Island Shores, 136 N.H. at 307, 615 A.2d at 633; Bob Godfrey Pontiac, 630 P.2d at 844-45. Because the duty to which the statute speaks--reporting of abuse--is considerably different from the duty on which the cause of action is based--supervision of students--we hold that a violation of the reporting statute does not constitute negligence per se in an action based on inadequate supervision of a student.
So, what do you think? Anyone care to post a "rebuttal brief" in favor of the Berry girls? (I just thought I might do the hard part of playing Devil's Advocate in favor of the WTS, so you can now do the easy part.)