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Marquay v. Eno

Citation. Marquay v. Eno, 139 N.H. 708 (N.H. July 11, 1995)
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Brief Fact Summary.

In connection with a suit by female students (Plaintiffs), against school district, officials, teachers, coaches, and employees (Defendants), arising out of allegations of exploitation, harassment, assault, and sexual abuse, the United States District Court for the District of New Hampshire certified state law questions.

Synopsis of Rule of Law.

The relation of the parties determines whether any duty to use due care is imposed by law upon one party for the benefit of another. If there is no relationship, there is no duty.


Plaintiffs, former students in a public school district, brought separate complaints alleging abuse, sexual and otherwise, by one or more of the employees of the school district. Also alleged was that several other school district employees knew, or should have known, of the abuse. The federal district court in which the suits were brought certified questions for the Supreme Court of New Hampshire.


Did the state statute create a private right of action in favor of abused children against those who have violated the statute’s reporting requirements?
* Was violation of the reporting statute negligence per se?


The court answered the certified questions (as follows) and remanded the case to the federal district court.
* The reporting statute does not support a right of private action for its violation because there was no express or implied legislative intent to create such civil liability.
* Because the duty to which the statute speaks – reporting abuse – is different from the duty on which the cause of action is based, a violation of the reporting statute does not constitute negligence per se in an action based on inadequate supervision of a student.


Concerning the responsibility owed by municipalities to members of the general public, a special relationship must exist to create a heightened duty on the part of the municipality. Thus, the Supreme Court of New Hampshire conducts its analysis in terms of the duty owed by school district employees and whether such relationships were present in the instant case.
* The court first addressed the question of whether all school district employees had a common law duty to protect students in circumstances such as those brought before the bar. The court answered, briefly, yes and no. The threshold question is one of the relationship between the employee in question and the student putatively at risk. “[t]he duty falls upon those school employees who have supervisory responsibility over students and who thus have stepped into the role of parental proxy. Those employees who share such a relationship with a student and who acquire actual knowledge of abuse or who learn of facts which would lead a reasonable person to conclude a student is being abused are subject to liability if their level of supervision is unreasonable and is a proximate cause of a student’s injury.” Thus, the court clarified that “[t]he principal or superintendent rarely has primary supervisory authority over a student. Because, however, it is the school to which parents turn over
custody of their children and from which they expect safety and because the superintendent and principal are charged with overseeing all aspects of the school’s operation, a duty of supervision is owed to each student. Where the principal or superintendent knows or should know that a particular school employee poses a threat to a student, entrustment of the student to the care of that employee will not satisfy the duty of reasonable supervision.”
* Finally, with regard to the issue of foreseeability, the court notes, “Where the plaintiff can establish that the school knew or reasonably should have known of such a propensity, the school will generally be liable for the foreseeable sexual abuse of students by that employee.”
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