2014-0496, Danielle (Graveline) Gauthier m/n/f Morgan Graveline v. Manchester School District, SAU #37

bus driver reported the incident to the defendant on February 7. a school bus. During that altercation, A.M. punched Morgan in the face. The 4, 20 11, Morgan was involved in an altercation with another student, A.M., on The following facts are derived from the trial court’s order. On February

School District, SAU #37. We affirm. (Garfunkel, J.) granting summary judgment to the defendant, Manchester next fr iend of Morgan Graveline, appeals an order of the Superior Court HICKS, J. The plaintiff, Danielle (Graveline) Gauthier, as mother and

(Robert J. Meagher on the brief and orally), for the defendant. McDonough, O’Shaughnessy, Whaland & Meagher PLLC, of Manchester

and orally), for the plaintiff. Backus, Meyer & Branch, LLP, of Manchester (B J Branch on the brief

No. 2014 - 0 496 Hillsborough - northern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

her school” and the defendant’s operation of the school premises. See Dichiara comply with a school district policy that expressly governed the ‘operation[’] of that the court erred in finding no nexus between her claim that Albert “failed to defendant immune from suit pursuant to RSA 507 - B: p. 2 2 and :5. She maintains On appeal, the plaintiff argues that the trial court erred in finding the

B:5” and did “not fall within the exception under RSA 507 - B: p. 2 2.” motion, ruling that it was “barred by the grant of immunity under RSA 507 plaintiff of the alleged bullying. The court grant ed the defendant’s cross remaining count — a negligence cl aim based upon Albert’s failure to notify the appeal. The parties then filed cross motions for summary judgment on the dismissed one of the two counts, and that dismissal is not challenged on Th e plaintiff brought suit to recover for Morgan ’s injuries. The trial court

within 48 hours of receiving the report.” the parents of a student who has been reported as a perpetrator of bullying the parents of a student who has been reported as a victim of bullying and to policy provides that “[t]he P rincipal or administrative designee shall report to bullying or cyberbullying.” RSA 193 - F:4, II (h). T he defendant’s anti - bullying cyberbullying and the parent or parents or guardian of the perpetrator of the report, to the parent or parents or guardian of a victim of bullying or other things, “[a] procedure for notification, within 48 hours of the incident policy prohibiting bullying and cyberbullying. The policy must contain, among mandates the adoption, by each school district’s school board, of a written policy implemented pursuant to RSA 193 - F:4, II (Supp. p. 2 2014). That statute At all relevant times, the defendant had in place a written anti - bullying

messages. told her about the February 4 bus incident and the threatening Facebook Morgan’s mother, the plaintiff, in the emergency room and, for the first time, face, and mouth. She was transported to the emergency room. Albert met with fight broke out. Morgan was hit several times, sustaining injuries to her head, that time and told A.A. to see him af ter lunch. After Albert left the cafeteria, a would both be in the cafeteria at lunch that day. Albert went to the cafeteria at messages on the morning of February 15 and knew that A.A. and Morgan anoth er student, A.A., on February 13 and 14. Albert learned about the Meanwhile, Morgan received threatening Facebook messages from

was given a three - day suspension. Albert met with A.M. on February 14. A.M. admi tted hitting Morgan and

informed Morgan that he would have to notify her mother, he did not do so. the altercation, and asked Albert not to notify her mother. Although Albert incident, told Albert she did not know the name of the other student involved in February 8 and met with Morgan the next day. Morgan minimized the The school principal, Barry Albert, downloaded the bus driver’s report o n p. 3 3

of action and whether: child abuse reporting statute, see RSA 169 - C:29 (2014), create s a private right Hampshire certified to us certain questions of state law, including whether the In Marquay, the United States District Court for the District of New

RSA chapter 19 p. 3 3 - F. Accordingl y, we pause to examine Marquay and the applicable provisions of Eno, 139 N.H. 708, 720 (1995), and not barred by RSA chapter 193 - F. plaintiff contends that this is a common law claim cognizable u nder Marquay v. [chapter] 193 - F, the anti - bullying statute, was implicated in the assault.” The notify her parent of [an incident] report that he received.. . and that RSA protect and supervise [Morgan] and that he breached this duty by failing to According to th e plaintiff, her “claim is that [Albert] had a common law duty to we review de novo.” Mikell v. Sch. Admin. Unit #33, 158 N.H. 723, 731 (2009). “The existence of a duty in a particular case is a question of law, which

RSA 507:2 and :5 immunity is unconstitutional becomes moot. statutory or common law duty lies in this case, the plaintiff’s argument that contained in RSA 19 p. 3 3 - F:7.” If we accept the defendant’s argument that no statutory duty under RSA [chapter] 193 - F carries with it the blanket immunity not identified a common law duty to support a negligence action, and any argues that summary judgment should be affirme d because “[t]he plaintiff has if it may have reached the right result on mistaken grounds”). The defendant on alternative grounds. S ee id. (noting that “we will uphold the trial court even (quotation omitted), we first address the defendant’ s argume nts for af firmance nonconstitutional ground,” Anglin v. Kleeman, 140 N.H. 257, 260 (1995) reaching a constitutional issue in a case that can be decided on a issue of constitutional law, and “[t]his court has a strong policy against Because the plaintiff’s RSA 507 - B:2 and :5 immunity argument raises an

of official immunity. (2) it is entitled to immunity under RSA 19 p. 3 3 - F:7 (Supp. 201 p. 4 4) and the doctrine there is no common - law duty to report bullying within forty - eight hours; a nd cross - appeals, arguing for affirmance of the trial court’s ord er because: (1) anti - bullying policy.” (All capitals and underlining omitted.) The defend ant requirements of the parental notice provision of the Manchester School District “exercise [our] discretion to resolve a qu estion of law, by interpreting the A rticle 14 of the New Hampshire Constitution. Finally, the plaintiff asks us to violate both the right to remedy and equal protection guarantees of Part I, that if RSA 507 - B:2 a nd :5 apply to immunize the defendant in this case, they operation of a motor vehicle or premises”). Alternatively, the plaintiff argues the injury and a governmental unit’s ownership, occupation, maintenance, or B:2 provides an exception to RSA 507 - B:5 only when there is a nexus between v. Sanborn Reg’l Sch. Dist., 165 N.H. 694, 698 (2013) (holding that “RSA 50 7 - 4

from suit, stating, in part: RSA 193 - F:9 (Supp. 201 p. 4 4). In addition, RSA 193 - F:7 provides immunity

or the state. this chapter against any school dist rict or chartered public school, shall this chapter create a private right of action for enforcement of under any other general or special law, including criminal law, nor chapter shall supersede or replace existing rights or remedies Private Right of Action Not Permitted. Nothing in this

private right of action. RSA 193 - F:9 provides: The statute at issue in this case explicitly states that it does not create a

supervision.” Id. at 717. entrusted to their care, which imposes upon them certain duties of reasonable we recognized that “sch ools share a special relationship with students action based on inadequate supervision of a student,” i d. at 716. Nevertheless, supplied a standard of care, under the doctrine of negligence per se, “in an re porting statute neither created a private right of action, id. at 715, nor Turning to the d istrict c ourt’s questions, w e held that the child abuse

violated a statutory duty.” Id. at 71 p. 4 4. plaintiff cannot maintain a negligence action, even though the defendant has imposed by statute.” Id. at 713 - 14. “If no common law duty exists, the may fail to recognize liability for failure to perform affirmative duties that are creation of common law causes of action” and “in many cases, the common law made clear, however, “[t]he doctrine of negligence per se. . . plays no role in the role is referred to as the doctrine of negligence per se. See id. As Marquay rather than as the usual reasonable person standard.” Id. at 713. The latter whic h a defendant will be held may be defined as that required by statute, cause of action already exists at common law, “the standard of conduct to implicitly, a cause of action for violation of its standard of conduct or, if a liability. Id. at 713 - 15. In short, the statute may create, either explicitly or roles a statutorily - prescribed standard of conduct may play in esta blishing civil Before addressing the d istrict c ourt’s questions, we clarified the potential

Marquay, 139 N.H. at 712.

teachers or coaches]. being sexually h arassed, assaulted or abused by. . . [other render them liable if they should have known, that plaintiffs were authorities or taking other protective measures, if they knew, or students by reporting alleged sexual misconduct to the proper di stricts and school administrative units to protect plaintiff teachers, coaches, superintendents, principals, secretaries, school New Hampshire common law impose[s] a duty upon defendant p. 5 5

and extent of that duty depends upon the nature of the relationship between the parties and protection against reasonably foreseeable harm. The existence harms. “In general, the concept of duty ar ises out of the relationship between overarching “duty to protect and supervise” in all instances and against all Moreover, we do not read Marquay to impose upon schools an

i s the duty to report in accordance with the school’s anti - bullying policy. protect and supervise,” the only specific duty she actually claims was breach ed invocation of Marquay and her mention of a “negligent breach of the duty to notification.” (Emphasis omitted.) Nevertheless, d espite the plaintiff’s its ‘in loco parentis’ duty to comply with its adopted pol icy for parental with the parental notification policy” and c ontends the defendant “breach[ed] describes her common law negligence claim as “resting on the failure to comply clear that her claim is inextricably intertwined with RSA chapter 193 - F: she accept it as accurate. Furthermore, statements in the plaintiff’s br ief make (Emphasis added.) As neither party has challenged that characterization, we the alleged bullying in accordance with the school’s anti - bullying policy.” “alleg[ing] that the defendant breached its duty to notify [Morgan’s] mother of c omplaint, the trial court characterized the plaintiff’s remaining claim as Although neither party provided the court with a copy of the plaintiff’s

Marquay is unavailing. distinction the plaintiff seeks to draw is illusory and her reliance upon constitutes due care, in relation to her negligence claim.” We conclude that the prevention policies as evidence that a jury could consider on the issue of what however, to admit “RSA [chapter] 193 - F and the [defendant’s] bullying p rotect and supervise” Morgan in accordance with Marquay. S he hopes, under respondeat superior, for Albert’s breach of his “common law duty to of action” or negligence per se, but, rather, seeks to hold the defendant liable, relying upon either “a statutory violation and an allegedly created private right exist [such a duty] at common law.” The plaintiff counters that she is not hours” and argues that “[a]bsent the ‘bullying’ policy and statute, there did not the plaintiff seeks to enforce “a duty to report alleged bullying to a parent in 48 requires that we discern the nature of her claim. T he defendant contends that Determination of whether the plaintiff may maintain her action first

recommended response under this chapter. findings, recommended response, or implementation of a conduct arising from or pertaining to th e reporting, investigation, public school, shall be immune from civil liability for good faith school, school district, school administrative unit, or chartered legal guardian, or employee of a company under contract to a public school employee, regular school volu nteer, pupil, parent, A school administrative unit employee, school employee, chartered p. 6 6

grant a direct private right o f action under [New York Public [I]t is unlikely that the New York legislature, while not intending to

Broder v. Cablevision Systems Corp., 418 F.3d 187 (2d Cir. 2005): for the Second Circuit in affirming dismissal of a common law fraud claim in legislature. We find instructive the logic of the United States Court of Appeals facts alleged in this case would undermine the policy thus expressed by the See RSA 193 - F: 7,:9. Recognition of a common law right of action under the expressed intent that a breach of RSA chapter 193 - F not give rise to liability. by a third party”). Our reluctance to do so is support ed by the legislature’s give rise to a common - law duty to notify parents about threatened harm posed about generalized threats made at school, and the circumstances here do not 1253 - 54 (N.Y. 2012) (noting “[t]here is no statutory duty to inform parents has already affirmatively addressed the misconduct”), aff’d, 978 N.E.2d 1251, school to notify a parent about a fight between two students when the school notice of first assault and finding “it unreasonable to impose a duty on the liable in negligence for failure to prevent second assault on student despite York, 925 N.Y.S.2d 71, 73 (App. Div. 2011) (concluding school and city not bullying under the facts alleged in this case. Cf. Stephenson v. City of New We similarly decline to extend Marquay to create a duty to report

create a duty to prevent a student’s suicide in this case.” Id. Marquay] — and the duty of reasonable supervision — extends so far as to students. Id. at 732. We disagreed that the “special relationship [recognized in Mikell, we declined to impose liability up on a school for the suicide of one of its We have s ubsequently declined to extend Marquay. For instance, i n

Mikell, 158 N.H. at 731 (discussing Marquay). is compromised, and only to those risks that are reasonably foreseeable.” we “limited the duty . . . to only those periods of time when parental protection thus have stepped into the role of paren tal proxy.” Id. at 717 - 18. In addition, school employees who have supervisory responsibility over students and who upon every school employee, but rather held that “the duty falls upon those there was not unlimited. We declined to impose a personal duty of supervision Even in Marquay, however, we made clear that the duty we recognized

taking other protective measures.” Id. at p. 7 712. students by reporting alleged sexual misconduct to the proper authorities or added). T he specific duty involved in Marquay was that of “protect[ing] plaintiff duties of reasonable supervision.” Marquay, 139 N.H. at 717 (emphasis schools and the students in their care so as to impose upon schools “certain omitted)). In Marquay we recognized that a special relationship exists between “[s]uch a duty may arise . . . if a special relationship exists” (quotation have no duty to protect others from criminal acts by third persons but that Granite Bank, 144 N.H. 308, 314 (1999) (noting that private persons generally the parties.” Mikell, 158 N.H. at 731 (citation omitted); see a lso Ahrendt v. 7

DALIANIS, C.J.