THE STATE OF NEW HAMPSHIRE

HILLSBOROUGH, SS
NORTHERN DISTRICT
SUPERIOR COURT
2001

No. 01-C-83

Rebecca Roy, by m/n/f Judith Roy

v.

Clayton Currier and Cheryl Currier

ORDER ON DEFENDANTS' EXPANDED MOTION TO DISMISS [12]

Judith Roy brings this action against Clayton and Cheryl Currier ("the defendants") on behalf of the minor plaintiff, Rebecca Roy ("the plaintiff"). The plaintiff alleges that the defendants were negligent in permitting their son, Scott Currier ("Scott"), to care for her and that their negligence proximately resulted in her being sexually assaulted by the boy. The plaintiff has articulated three theories of recovery: negligent hosting, negligent entrustment and negligent supervision. The defendants seek summary judgment on all counts. The plaintiff objects.

STATEMENT OF FACTS

The plaintiff has alleged the following facts. In the course of a five-year period spanning from 1990 to 1995, the plaintiff's father, David Bower ("Mr. Bower"), periodically had custody of her. Mr. Bower frequently left the plaintiff at the home of the defendants, her aunt and uncle. The defendants, in turn, left the plaintiff's supervision to their minor son, Scott.

At the beginning of the relevant time period, the plaintiff was five years of age and Scott thirteen. At approximately that time, Scott exposed himself in a sexual manner to the plaintiff, who then told her mother, Judith Roy, about the incident. Her mother expressed concern to Mr. Bower and a "family meeting" was called. Defendant Cheryl Currier attended.

The plaintiff argues that this first instance of Scott behaving inappropriately toward the plaintiff placed the defendants on notice that he was sexually disturbed. After the occurrence, however, Mr. Bower continued to leave the plaintiff at the defendants' home for overnight visits. In the five years that followed, the defendants frequently left the plaintiff in Scott's care, leaving the two together unsupervised. On such occasions, Scott sexually molested the plaintiff. Scott has since been convicted of multiple counts of felonious sexual contact with the plaintiff based on these incidents.

DISCUSSION

The defendants now seek to dismiss the plaintiff's complaint. First, they argue that her claim for "negligent hosting" must be dismissed on the basis that they had no duty to protect her from Scott's abuse because criminal acts are not foreseeable. Second, they assert that the Court must dismiss her claim for "negligent entrustment" because this case does not involve the entrustment of a dangerous item or instrumentality. Finally, the defendants aver that the plaintiff's "negligent supervision" claim should be dismissed because that cause of action has yet to be recognized by the New Hampshire Supreme Court.

"In ruling on a motion to dismiss, the court must determine whether the facts as pled are sufficient under the law to constitute a cause of action." Jay Edwards, Inc. v. Baker, 130 N.H. 41, 44 (1987) (citations omitted). The Court examines the complaint to determine "whether on its face, it asserts a cause of action." Id. at 44-45 (emphasis in original). The Court may not dismiss the cause of action if the plaintiffs' pleadings are reasonably susceptible of an interpretation that would permit recovery. Snierson v. Scruton, 145 N.H. 73, 76-77 (2000). Furthermore, "in ruling on a motion to dismiss, all facts properly pleaded by the plaintiff are deemed true, and all reasonable inferences derived therefrom are construed most favorably to the plaintiff." Jay Edwards, Inc., 130 N.H. at 45 (quoting Weld Power Indust. v. C.S.I. Technologies, 124 N.H. 121, 123 (1983). However, the Court "need not accept statements in the complaint which are merely conclusions of law." Ronayne v. State, 137 N.H. 281, 283 (1993) (quoting Jay Edwards, Inc., 130 N.H. at 45)).

Negligent Hosting:

The plaintiff has alleged that the defendants owed her a duty of care to protect her from Scott's assaults because they voluntarily agreed to care for her. The Restatement (Second) of Torts 324A (1965), provides, in pertinent part:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Id. The New Hampshire Supreme Court has cited this section with approval in other contexts. See Williams v. O'Brien, 140 N.H. 595, 600 (1995) (citing 324A(c)); Corson v. Liberty Mut. Ins. Co., 110 N.H. 210, 213-14 (1970) (addressing 324A(b) and comment d). The Court finds 324A(a) applicable when a party gratuitously undertakes to care for a minor child because caregivers should recognize that supervision is necessary to protect minors from harm. The Court therefore finds and rules that the defendants owed a duty of care to the plaintiff once they had volunteered to care for her. Should they be found to have acted unreasonably in leaving her with Scott, they may properly be held liable for any resultant damages.

The defendants assert that they owed no duty to the plaintiff to protect her from Scott's molestation because the boy's criminal acts were not foreseeable. See Walls v. Oxford Management Co., Inc., 137 N.H. 653, 657 (1993). Walls does state that "[u]nder 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. . . ." Id. at 657-58 (emphasis added). Assuming the truth of the facts alleged by the plaintiff, however, the defendants did have a reason to expect that Scott might behave in a sexual manner toward the plaintiff and subject her to criminal acts because he previously had exposed himself to her. Consequently, the defendants' argument fails. Accordingly, the defendants' motion to dismiss is DENIED with respect to the plaintiff's claim for "negligent hosting."

Negligent Entrustment:

The plaintiff's claim for negligent entrustment must fail as a matter of law. The facts of this case do not involve the entrustment of a dangerous instrumentality. See Langlois v. Pomerleau, 143 N.H. 456, 460 (1999) (upholding trial court's directed verdict against plaintiff on negligent entrustment claim for damages resulting from fire when plaintiff offered no evidence that parents had entrusted child with lighters and matches). Here, as in Langlois, the gravamen of the plaintiff's claim is negligent supervision, not negligent entrustment. Id. Consequently, the defendants' motion to dismiss is GRANTED with respect to the plaintiff's claim for negligent entrustment.

Negligent Supervision of Scott:

The defendants are correct when they state that the New Hampshire Supreme Court has not yet recognized a cause of action for negligent parental supervision. The court, however, has not rejected the concept of negligent supervision, but rather has indicated that no case has come before it in which the doctrine might properly apply. See Langlois, 143 N.H. at 459 (noting that "[t]o date, we have declined to recognize the tort of negligent supervision. . . ."); Towle v. Kiman, 134 N.H. 263, 265 (1991) (declining to adopt tort of negligent supervision "at this time" "on the facts alleged by this plaintiff"); Clark v. McKerley, 126 N.H. 778, 780 (1985) (refusing to "take up such a significant issue of first impression in a case submitted on briefs, when the record reveals an alternative basis for decision"). The Court concludes that under the circumstances of this case, our Supreme Court would recognize a claim for negligent supervision.

Taking the facts in the light most favorable to the plaintiff, as the Court must in the context of a motion to dismiss, a reasonable factfinder could conclude that Scott's exposing himself to the plaintiff demonstrated a propensity on his part to sexually abuse her. See Langlois, 143 N.H. at 459 (requiring plaintiff to prove child's dangerous propensities in order to sustain negligent supervision claim); see also Webster's Ninth New Collegiate Dictionary 943 (1985) (defining "propensity" as "an often intense natural inclination or preference"). The Court further finds and rules that the defendants' leaving the plaintiff unsupervised in Scott's presence could be found "socially unreasonable." See Towle, 134 N.H. at 265 (stating tort liability premised on "socially unreasonable" conduct). The defendants routinely left the minor female plaintiff alone with their much older son, who had shown signs of sexual disturbance. The Court cannot say as a matter of law that such action does not constitute "socially unreasonable conduct." Consequently, the defendants' motion to dismiss the plaintiff's cause of action for negligent supervision is DENIED.

CONCLUSION

Accordingly, the defendants' Expanded Motion to Dismiss [12] is GRANTED with respect to the plaintiff's claim for "negligent entrustment," but DENIED with respect to the plaintiff's claims for "negligent hosting" and "negligent supervision."

So ordered.

Dated: October 15, 2001     _____________________________
                                            CAROL ANN CONBOY
                                            PRESIDING JUSTICE