2022-0259, Larissa Troy v. Bishop Guertin High School & a.

plaintiff argues that the trial court erred because the plaintiff did not obtain plaintiff’s claims are barred by the statute of limitations. On appeal, the Heart of New England, Inc. (BSHNE), based upon the court’s finding that the defendants, Bishop Guertin High School (BGHS) and Brothers of the Sacred Superior Court (Temple, J.) granting summary judgment in favor of the DONOVAN, J. The plaintiff, Larissa Troy, appeals an order of the

for the defendant s. Pinson n eault and John M. Edwards on the brief, and John M. Edwards orally), Hingston on the brief), and Winer and Bennet t, LLP, of Nashua (David K. Airdo Werwas, LLC, of Chicago, Illinois (Michael A. Airdo and Brian J.

brief and orally), for the plaintiff. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the

No. 2022 - 0259 Hillsborough - s outhern judicial district

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

and student body and confirmed that McEnany had been convicted of unlawful In response, Labbe, BGHS’s headmaster at that time, addressed the faculty teaching as a convicted sex offender and failing to register as a sex offender.” In November 1997, McEnany was charged in New Hampshire “with

from BGHS in 1996 and attended college in New England that fall. disclosures, McEnany continued to teach at BGHS. The plaintiff graduated assault, who did not believe her. Following these alleged incidents and would be in trouble. The plaintiff also informed her mother of the sexual accused her of lying an d told her that if she continued to repeat the story, she assault to the BGHS Dean of Students. The plaintiff recounted that the Dean The plaintiff testified in her deposition that she reported the second

incident occurred in a classroom while students were taking an exam. sister, who witnessed the incident, to “stay away” from McEnany. The second plaintiff sat on a radiator near her sister. Afterwards, the plaintiff told her campus. The first incident occurred in the student locker area while the alleges that McEnany sexually assau lted her on two occasions on the BGHS when the plaintiff was seventeen years old and a senior at BGHS, the plaintiff The plaintiff attended BGHS from 199 p. 2 2 to 1996. In the fall of 1995,

students of his prior conviction. McEnany’s contact with female studen ts and did not alert the parents or female students. Nevertheless, BGHS did not take any action to limit McEnany would pose a risk to female students. In 199 p. 2 2, BGHS admitted consult with a psychological or mental health professional as to whether it was, at the time, an all - boys school.” Prior to hiring McEnany, Labbe d id not responsible for the hiring, “believed that it was safe” to hire McEnany “because 1990, BSHNE hired McEnany to teach at BGHS. Leo Labbe, the official that BSHNE owned and operated. Despite kn owledge of this conviction, in fifteen - year - old female student while McEnany was teaching at another school Shawn McEnany was convicted in Maine of unlawful sexual conduct with a BGHS is a private Catholic school owned and operated by BSHNE. In 1988, The following facts are supported by the summary judgment record.

and remand. conduct. Accordingly, we reverse the trial court’s grant of summary judgment should have known, that her injury was proximately caused by the defendants’ dispute as to when the plaintiff knew, or in the exercise of reasonable diligenc e, light most favorable to the plaintiff, we conclude that there is a material factual statute of limitations to permit her p. 2 2018 lawsuit. Viewing the evidence in the rule set forth in former RSA 508:4 - g, II (2010) (amended 2020), tolled the the defendants’ hiring practices until 2017, which, pursuant to the discovery personal knowledge of the causal connection between her alleged injury and p. 3 3

sex offender. Therefore, in her view, because she did not make the causal to the parents of BGHS students, or that BGHS knowingly hired a convicted until 2017, she had no knowledge either of the letter that Labbe sent in 1997 barred the plaintiff’s claims. The plaintiff argued that it was undisputed that, addressing the question of whether the application of the statute of limitations Thereafter, the parties filed cross - motions for summary judgment

these “intru sive memories” have continued into the present. often followed by “days of traumatic memories” related to the assault s and that assault.” Moreover, during college, she suffered from panic attacks that were because she was “preoccupied with [her] bad feelings and memories of the while at college, between 1996 and 2000, she struggled with her grades she was a student at BGHS. A ccording to her expert, the plaintiff reported that supervising McEnany; and (2) negligent in that they failed to protect her while alleging that the defendants were: (1) negligent in hiring, retaining, and years after the alleged assaults, the plaintiff brought two common law claims In 2017, McEnany passed away. In May 2018, more than twenty - two

until her internet search in 2017. abuse by McEnany and the psycholo gical problems she was experiencing,” claims that she “did not make any connection in her mind between the sexual abuse they had endured at the hands of [BGHS’s] faculty members.” She that BGHS “had previously been sued by other students relative to sexual “bishopaccountability.org,” she first learned of McEnan y’s history of abuse a nd alleges that upon reading newspaper articles on the website McEnany’s abuse” and motivated her “to Google search his name.” She also school. She alleges that these two events caused her to start “thinking about plaintiff read a newspaper article detailing sexual abuse at another private post by the school acknowledging her athletic career at BGHS. Further, the plainti ff received a message from her brother - in - law discussing a Facebook disclosures and of McEnany’s prior conviction in May 2017. That spring, the Rather, the plaintiff asserts that she first became aware of BGHS’s public

mother denied receiving the second letter. that her sisters never discu ssed these events with her, and that the plaintiff’s asserts that she had no knowledge at that time of BGHS’s public disclosures, plaintiff’s two younger sisters attended BGHS. Nevertheless, the plaintiff had be en rehabilitated such that he could return to teaching. At that time, the when it hired him, but explained that L abbe personally believed that McEnan y second letter acknowledged BGHS’s prior knowledge of McEnan y’s conviction due to his pending criminal charges, McEnan y had been reassigned. The McEnan y did not engage in any improper conduct at BGHS, and explained that The first letter disclosed the details of McEnan y’s prior conviction, claimed that also sent two letters to BGHS families concerning McEnany’s criminal history. and that BGHS hired McEnany despite knowing of his prior conviction. BGHS sexual contact with a fifteen - year - old female student while teaching in Mai ne p. 4 4

to any offense under RSA chapter 632 - A (2016 & Supp. 2022) and RSA 639:2 (2016) to We note that RSA 508: p. 4 4 - g was amended in 2020 to allow a party alleging to have been subjected 1

causal relationship to the act or omissi on complained of. 1 reasonable diligence should have discovered, the injury and its II. Three years of the time the plaintiff discovers, or in the exercise of I. Twelve years of the person’s eighteenth birthday; or

later of: occurred, may commence a personal action based on the inc ident within the RSA 632 - A” and who was under 18 years of age when the alleged offense provide d that a person “alleging to have been subjected to any offens e under limitations barred the plaint iff’s claims. As relevant here, former RSA 508: p. 4 4 - g The narrow question raised in this appeal is whether the statute of

application of the law to the facts de novo. Id. the grant of summary judgment is proper. Id. We review the trial court’s material fact, and if the moving party is entitled to judgment as a matter of law, Ins. v. Vt. Mut. Ins. Co., 151 N.H. 71, 72 (200 p. 4 4). If there is no genuine issue of from them, in the light most favorable to the non - moving party. See Peerless consider the affidavits and other e vidence, and all inferences properly drawn judgment. When reviewing a trial court’s grant of summary judgment, we of the discovery rule when granting the defendants’ motion for summary On appeal, the plaintiff argues that the trial court erred in its application

for reconsideration, which the court denied. This appeal followed. occurred on the employer’s property,” s ee RSA 508: p. 4 4 - g, II. The plaintiff moved abuser; (3) that the defendants employed the abuser; and (4) that the abuse or should have known: “(1) that she ha s been abused; (2) the identi t y of her satisfy her burden of proving t hat the discov ery rule applied because she knew not bring this action by her thirtieth birthday,” see RSA 508:4 - g, I, and failed to court found that the record “conclusively demonstrates” that the plaintiff “did are barred by the statu te of limitations as set forth in RSA 508:4 - g, I. The trial defendants’ motion for summary judgment and ruling that the plaintiff’s claims In February 2022, the trial court issued an order granting the

expired on the plaintiff’s thirtieth birthday, in 2008. former RSA p. 5 508: p. 4 4 - g, I (2010) (amended 2020) b ecause the statute of limitations her claims. Instead, in their view, summary judgment was proper pursuant to plaintiff failed to satisfy her burden of proving that the discovery rule applied to discovery rule of former RSA 508:4 - g, II. The defendants argued that the of her claims are within the three - year statute of limitations set forth in the and the defendants’ prior knowledge of McEnany’s conviction until 2017, both connecti on between her alleged injuries, the alleged sexual abuse by McEnany, 5

accurate and will limit its analysis accordingly. when the action was filed in 2018. This opinion ass umes the parties’ positions are legally parties agreed that the applicable statute of limitations is the version of RSA p. 5 508:4 - g in effect “commence a personal action at any time.” RSA 508:4 - g (Supp. 2022). However, in this case, the

426, 431 (2003). “Rather, that the pl aintiff could reasonably discern that [s he] the plaintiff's injury has manifested itself.” Furbush v. McKittrick, 149 N.H. this rule “is not intended to toll the statute of limitations until the full extent of connection between the h arm and the defendant’s negligent or wrongful act, until a plaintiff discovers, or should reasonably have discovered, the causal As to both prongs, although the discovery rule tolls the limitations period

at any point prior to May 201 p. 5 5. had the burden to establish that at least one of these prongs was not satisfied 160 N.H. at 713. Here, because the plaintiff filed this action in May 2018, she the plaintiff has the burden of proving that the discovery rule applies. Beane, defendant has establi shed that the statute of limitations would bar the action, negligent act.” Perez v. Pike Inds., 153 N.H. 158, 160 (2005). Once the have discovered, either the alleged injury or its causal connection to the alleged d oes not apply unless the plaintiff did not discover, and could not reasonably caused by conduct of the defendant. Id. “Thus, the discovery rule exception reasonably should have known that the plaintiff’s injury was proximately that the plaintiff has been injured; and second, a plaintiff must know or 708, 713 (2010). First, a plaintiff must know or reasonably should have known statute of limitations begins to run. Beane v. Dana S. Beane & Co., 160 N.H. rule is a two - pronged rule requiring both prongs to be satisfied before the Div. for Children, Youth & Families, 173 N.H. 613, 618 (2020). The discovery causal link to a wrongful act or omission by another party.” Petition of N.H. of relief when they did not and reasonably could not know of the harm or its “The purpose of the discovery rule is to provide injured parties an avenue

complained of.” RSA p. 5 508:4 - g, II. discovered, the injury and its causal relationship to the act or omission plaintiff discovers, or in the exercise of reasonable diligence should have discovery rule by bringing this action within “[t]hree years of the time the judg ment to the defendants on the basis that the plaintiff failed to satisfy the must decide is narrow: whether the trial court erred by granting summary did not file suit before her thirtieth birthday in 2008. Therefore, the issue we plaintiff was under eighteen years of age, and that it is not disputed that she chapter p. 6 632 - A (2016 & Supp. 2022), that the alleged offense o ccurred when the employee, McEnany, committed an “offense” against her enumerated in RSA actions. See RSA 508:4. Here, the plaintiff alleges that the defendants’ incorporates the so - called “disco very rule” exception applicable to all personal “Personal Actions” in RSA 508:4 (2010). On the other hand, Section II personal actions alleging sexual assault of a minor than the general rule for The effect of Section I is to provide a longer statute of limitations for 6

of reasonable diligence, would have learned that the employer church had cour ts. . . have held that the plaintiff, at the age of majority and in the exercise statute of limitations. In that case, the court observed that a “majority of childhood sexual abuse claim, ruling that the discovery rule did not toll the case in which the Tennessee Court of Appeals dismissed the plaintiff’s Doe v. Catholic Bishop for Memphis, 30 p. 6 6 S.W.3d 712 (Tenn. Ct. App. 2008), a sufficient to put the plaintiff on notice. Specifically, the court quoted at length an employment relationship between the abuser and the defendants is The trial court relied on a number of out - of - state cases to conclude that

retaining, and supervising McEnany. between the injury and the defendants’ alleged acts or omissions in hi ring, employed by the defendants di ffers from her knowing of the causal connection the plaintiff’s knowledge that she had been injured and that her assailant was claims that she now brings in her action against the defendants. Simply put, aware of the causal connection between her injury and the two common law based only upon McEnany’s employment, the plaintiff should have b ecome defendants. In so finding, the trial court erred. We cannot conclude that, the time of the abuse, the plaintiff knew that McEnany was employed by the In reaching this conclusion, the trial court relied primarily on th e fact that, at injury and th e defendants’ conduct immediately following the alleged assaults. plaintiff knew or should have known of the causal connection between her the defendants’ conduct prior to May 2015. The trial court found that the knew or should have known of the causal connection between her injuries and assaults prior to May 2015. Accordingly, we consider whe ther the plaintiff knew or should have known that she suffered an injury as a result of the We begin our discussion by noting that the parties agree that the plaintiff

314, 321 (2020) (quotation omitted). fact.” Balzotti Global Grp., LLC v. Shepherds Hill Proponents, LLC, 173 N.H. between the injury and the defendant’s alleged act or omission is a question of plaintif f exercised reasonable diligence in discovering the causal connection discovered.” RSA 508:4 - g, II; see also Beane, 1 p. 6 60 N.H. at 713. “Whether the what a plaintiff “in the exercise of reasonable diligence should have subjective knowledge is not dispositive of her claim. Rather, the standard is “the discovery rule em ploys an objective standard.” Accordingly, the plaintiff’s bringing suit.” Id. (quotation omitted). Moreover, as the plaintiff concedes, and could not have had with due diligence, the information essential to 617, 624 (2005). The discovery rule appli es only when a plaintiff “did not have, reasonable inquiry. Portsmouth Country Club v. Town of Greenland, 152 N.H. A party attempting to invoke the discovery rule will be held to a duty of

obviate the protections of the discovery rule. Beane, 1 p. 6 60 N.H. at p. 7 713. certain of this causal connection; the possibility that it existed will suffice to the discovery rule inapplicable.” Id. (quotation omitted). A plaintiff need not be suffered some harm caused by the defendant ’ s conduct is sufficient to render 7

these courts with respect to the discovery rule’s causal connection requirement administering it s football program). We agree with the analyses employed by defendant’s knowledge of the abuser ’ s history or the school’s conduct in was insufficient to demonstrate that she was on notice to in vestigate the (p laintiff ’ s knowledge that her abuser had previously assaulted other women Hernandez v. Baylor University, 2 p. 7 74 F. Supp. 3d 602, 616 - 17 (W.D. Tex. 2017) an assault does not give a plainti ff knowledge of an institution’s conduct); that is the basis of the plaintiff’s action and, in the context of a Title IX action, 967, 979 (N.D. Cal. 2020) (the “touchstone” of accrual is notice of the injury supervisor”); Karasek v. Regents of University of California, 500 F. Supp. 3d knowledge of a causal connection between the tort and t he employer and of a “tortfeasor’s employer and supervisor does not necessarily equate to rulin g dismissing plaintiff’s childhood sexual abuse claims because knowledge (applying the federal discovery rule to reverse trial court’s summary judgment knowledge); Ouellette v. Beaupre, 977 F.3d 127, 141 - 42 (1st Cir. 2020) deliberately indifferent to prior sexual harassment of w hich it had actual when the plaintiffs knew or had reason to kno w that the university was alleging sexual abuse by a university’s employee because the claims accrued F.4 th 686, 704 (6 th Cir. 2022) (reversing dismissal of plaintiffs’ Title IX action reached similar conclusions. See, e.g., Snyder - Hill v. Ohio State University, 48 Courts addressing this issue in analogous legal and factual contexts have also Turner v. Roman Catholic Diocese, 987 A.2d 960, 982 - 83 (Vt. 2009). employee of the defendant. See Doe, 306 S.W.3d at 726 - 27 (citing cases); see plaintiff is placed on inquiry notice simply because the perpetrator is an As the Doe C ourt observed, other courts have declined to conclude that a

Catholic Diocese of Pittsburg h, 6 p. 7 7 Pa. D. & C. 4th 393, 407 (Pa.Com.Pl. 2004))). involvement contributed to the injuries. . ..’” (q uoting Matthews v. Roman is no duty of inquiry where there is no reason to suspect that a party’s are charged with keeping students safe. See Doe, 306 S.W.3d at 727 (“‘[T] here repeat her allegations. The alleged conduct occurred in a school, where adults of Students who, in response, accused her of lying a n d warned her not to this case, the plaintiff asserts that she reported the second assault to the Dean childhood sexual abuse arise in varied and complicat ed factual settings. In standard. Portsmouth Country Club, 152 N.H. at 624. Allegations of LLC, 173 N.H. at 321. Further, the discovery rule employs an objective rule. T h is inquiry presents a question of fact. See, e.g., Balzotti Global Grp., abuser’s employer is alone sufficient to trigger the application of the discovery We decline to establish a per se rule that the plaintiff’s knowledge of the

of the injury. Id. at p. 7 726. reasonable diligence,” would have discovered th at the employer was the cause that it “was for the jury to decide whether the plaintiff, in the exercise of 722. However, the Doe C ourt a cknowledged that other courts have concluded matter of law, the stat ute of limitations was not tolled.” Doe, 306 S.W.3d at knowledge of the clergy member’s prior sexual abuse, and that therefore, as a p. 8 8

concurred. M AC DONALD, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,

proceedings. grant of summary judgment and remand this case to the trial court for further the 1997 public disclosures. In light of our holding, we r everse the trial court’s trial court did not address them and did not consider the evidence regarding We decline to address the defendants’ alternative arguments because the

defendants. and conclude that the trial court erred in granting summary judgment to the