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                  THE SUPREME COURT OF NEW HAMPSHIRE

                             ___________________________


Grafton
No. 2013-206


                                KENNETH ENGLAND

                                            v.

                                   MARIA BRIANAS

                              Argued: April 3, 2014
                          Opinion Issued: June 18, 2014

      Waystack Frizzell, Trial Lawyers, of Colebrook (Jonathan S. Frizzell on
the brief and orally), for the plaintiff.


      Primmer, Piper, Eggleston & Cramer, PC, of Littleton (Gregory M. Eaton
on the brief and orally), for the defendant.

       DALIANIS, C.J. The plaintiff, Kenneth England, appeals the order of the
Superior Court (Vaughan, J.) dismissing his negligence action against the
defendant, Maria Brianas. He argues that the writ alleged facts showing that a
legal duty was owed to him by the defendant. We affirm.

      The writ contains the following allegations. For several months in 2009,
the defendant and Allen Bryson had an intimate relationship, which ended
when Bryson moved out of state. After Bryson returned to New Hampshire in
February 2010, he contacted the defendant several times, attempting to
resume their relationship; he “became enraged” when she refused. Although
the defendant told Bryson that she did not believe that they were “compatible,”
he nevertheless persisted in an abrasive and angry manner. He also left an
angry message on her telephone because he was upset that she would not
return his calls, and, when she encountered him in a restaurant, he argued
with her and used profanities. The defendant noticed tire tracks in her
driveway that she suspected were from Bryson’s truck and “felt that Bryson
was always watching her, and occasionally she would see him following her in
his car.”

      The plaintiff and the defendant met during the summer of 2008 and later
began socializing and communicating through text messages. The defendant
never told the plaintiff about her relationship with Bryson or his behavior after
he returned to New Hampshire. On February 13, 2010, while they were
together at the Eagles Club, the defendant invited the plaintiff to spend the
night at her house. Both were unaware that Bryson had broken into the
defendant’s house through the basement and was waiting for her to return
home. When the plaintiff left the defendant’s living room to get a drink in the
kitchen, Bryson stabbed him multiple times, causing serious injuries.

      The plaintiff argues that the trial court should have found that special
circumstances existed that would support a finding of a legal duty owed to him
by the defendant and, therefore, should have denied the defendant’s motion to
dismiss. The defendant counters that the trial court was correct in granting
her motion to dismiss because the plaintiff’s writ of summons did not allege
special circumstances or a special relationship sufficient to impose a duty to
warn or protect the plaintiff from Bryson’s assault.

       In reviewing the trial court’s grant of a motion to dismiss, we consider
whether the allegations in the plaintiff’s pleadings are reasonably susceptible of
a construction that would permit recovery. Plaisted v. LaBrie, 165 N.H. 194,
195 (2013). We assume that the plaintiff’s factual allegations are true and
construe all reasonable inferences in the light most favorable to him. Id. We
need not, however, assume the truth of statements that are merely conclusions
of law. Ford v. N.H. Dep’t of Transp., 163 N.H. 284, 288 (2012). “We then
engage in a threshold inquiry, testing the facts alleged in the pleadings against
the applicable law.” Signal Aviation Servs. v. City of Lebanon, 164 N.H. 578,
582 (2013) (quotation omitted). “We will uphold the trial court’s grant of a
motion to dismiss if the facts pleaded do not constitute a basis for legal relief.”
Id. (quotation omitted).

      To recover for negligence, the plaintiff must demonstrate that the
defendant had a duty to the plaintiff, that she breached that duty, and that the
breach proximately caused injury to the plaintiff. Pesaturo v. Kinne, 161 N.H.
550, 557 (2011). Absent the existence of a duty, the defendant cannot be liable



                                        2
for negligence. Carignan v. N.H. Int’l Speedway, 151 N.H. 409, 412 (2004).
“When charged with determining whether a duty exists in a particular case, we
necessarily encounter the broader, more fundamental question of whether the
plaintiff’s interests are entitled to legal protection against the defendant’s
conduct.” Walls v. Oxford Management Co., 137 N.H. 653, 657 (1993)
(quotation omitted). “In other words, ‘duty’ is a question of whether the
defendant is under any obligation for the benefit of the particular plaintiff; and
in negligence cases, the duty is always the same – to conform to the legal
standard of reasonable conduct in the light of the apparent risk.” W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 356 (5th ed.
1984). Whether a duty exists in a particular case is a question of law, which
we review de novo. Carignan, 151 N.H. at 412.

      “[P]rivate persons have no general duty to protect others from the
criminal acts of third persons.” Walls, 137 N.H. at 656. “This rule is grounded
in the fundamental unfairness of holding private citizens responsible for
unanticipated criminal acts of third parties.” Id. at 657. In certain limited
circumstances, however, we have recognized such a duty. See Remsburg v.
Docusearch, 149 N.H. 148, 154-55 (2003) (private investigator owes duty to
third party where disclosure of information to client creates foreseeable risk of
criminal misconduct against third party); Dupont v. Aavid Thermal
Technologies, 147 N.H. 706, 713 (2002) (plaintiff sufficiently alleged facts
establishing employer’s duty to protect employee from imminent danger while
at work); Iannelli v. Burger King Corp., 145 N.H. 190, 194 (2001) (teenagers’
unruly behavior created unreasonable risk of injury to restaurant patrons,
creating duty to protect patrons from assault); Marquay v. Eno, 139 N.H. 708,
717-18 (1995) (schools share special relationship with students, creating duty
of reasonable supervision).

      The plaintiff relies upon Dupont to support his argument that “special
circumstances” existed that gave rise to a duty to warn. The facts in Dupont,
however, are not analogous to those in this case. In Dupont, Robert Hilliard,
who worked in a different department and on a different shift than did
Raymond Dupont, confronted him at his work station. Dupont, 147 N.H. at
708. Two supervisors, suspecting that the confrontation might turn violent,
escorted them out of the building. Id. After learning that Hilliard had a loaded
handgun and after observing that the confrontation became heated, the
supervisors did not call the police but, rather, ordered Dupont to return to
work. Id. Hilliard requested more time with Dupont, which the supervisors
allowed. Id. Hilliard shot and killed Dupont in the parking lot and, shortly
thereafter, shot himself. Id. Based upon these specific facts – that the
supervisors knew that Hilliard was armed and agitated, that there was a prior
history of similar incidents of potential violence, and that the supervisors failed
to take reasonable measures to prevent the attack – we concluded that the
supervisors’ alleged knowledge was sufficient to impose a duty upon the



                                         3
employer to protect Dupont from Hilliard’s attack. Id. at 714. Here, however,
there are no allegations that the defendant knew that Bryson had a knife, that
he had ever threatened to hurt the defendant or anyone else, or that he had
ever threatened to break into the defendant’s house. Consequently, the
plaintiff’s reliance upon Dupont is misplaced.

       The plaintiff also cites Jobe v. Smith, 764 P.2d 771 (Ariz. Ct. App. 1988),
as “empirical authority” for the proposition that “it is the possession of
knowledge on the part of one party that a potentially dangerous situation exists
– and is getting worse, not better – that creates the legal duty to warn another
who may be harmed that the harm may occur.” In Jobe, the plaintiff
contended that the defendant asked him to come to her home to repair her
refrigerator, knowing that her estranged boyfriend, who had a propensity for
violence, was in the house, and aware of the risk that he would attack the
plaintiff. Jobe, 764 P.2d at 771. When the boyfriend assaulted the plaintiff,
the plaintiff sued the defendant for failing to warn him of the risk. Id. As the
trial court in the instant case noted, Jobe “held that under ‘certain
circumstances’ there may be a requirement to provide warnings about ‘hidden
perils on the premises’ including the presence of a third person.” See id. at
771-72 (finding duty to warn of “homicidal maniac” in bedroom based upon
defendant’s prior knowledge about assailant’s violent tendencies). Here, the
plaintiff concedes that the defendant did not know that Bryson had broken into
her home. Thus, she was unaware of the “hidden peril on the premises.”

       We find the instant case more analogous to Fiala v. Rains, 519 N.W.2d
386 (Iowa 1994), and Patzwald v. Krey, 390 N.W.2d 920 (Minn. Ct. App. 1986).
In Fiala, the defendant’s disgruntled boyfriend broke into her home and
severely beat the plaintiff, who was the defendant’s house guest that evening.
Fiala, 519 N.W.2d at 387. The defendant knew of the boyfriend’s propensity for
violence because, on several occasions, he had slapped, shoved, and attempted
to strangle her. Id. On the night of the assault, the plaintiff gave the
defendant a ride home from a bar. Id. at 388. They were unaware, however,
that the boyfriend was lurking outside the defendant’s home. Id. The
boyfriend broke down the door, grabbed the defendant by the throat, and
pushed her to the floor. Id. The boyfriend then attacked the plaintiff, kicking
him repeatedly in the head, knocking him unconscious. Id. The plaintiff
brought a negligence action against the defendant, contending that she owed
him a “duty to not expose him to a danger she knew, or should have known,
when she invited him into her house.” Id. (quotation omitted). The court noted
that the record was devoid of any evidence suggesting a special relationship
existed between the plaintiff and the defendant that would establish a legal
duty of care. Id. at 389. Finding no evidence that the boyfriend had ever
threatened the plaintiff and no evidence of any action immediately preceding
the assault that would have alerted the defendant to a pending danger, the
court concluded that there was no legal duty of care. Id.



                                        4
       Similarly, in Patzwald, Rita Patzwald ended her three-year relationship
with her boyfriend because of his erratic behavior, which included a physical
assault. Patzwald, 390 N.W.2d at 921. After she broke off the relationship, he
threatened to “get her” several times and left her picture, stabbed full of holes,
in her front doorway. Id. (quotation omitted). Patzwald contacted the police on
two occasions to report the continued harassment. Id. Sometime thereafter,
while Patzwald was hosting a wedding reception for her daughter at her home,
the former boyfriend appeared unexpectedly, firing a .22 caliber rifle
indiscriminately into the crowd of guests, killing one and injuring three others.
Id. The injured guests filed personal injury actions against Patzwald, alleging a
duty on her part to warn them of the former boyfriend’s potential criminal
activity. Id. The court concluded that the plaintiffs “lacked the requisite
special relationship that first must be found before a duty to warn may be
imposed.” Id. at 922. The court also determined that “no duty to warn should
be imposed because [the former boyfriend] never made specific threats against
any of the guests injured by him at the wedding reception.” Id. Accordingly,
the court held that Patzwald owed no obligation to the wedding guests to warn
them of “a harm that was by any reasonable standard, unforeseeable.” Id. at
923.

       In contrast to the defendants in Fiala and Patzwald, both of whom were
victims of physical abuse by the assailant, the defendant here was unaware of
Bryson’s propensity for violence. She knew only that he was upset because she
had told him that they were incompatible, that he left her an angry message on
her telephone, and that he used profanities when he saw her in a restaurant.
This alleged conduct was insufficient, as a matter of law, to make Bryson’s
attack foreseeable such that the defendant had a duty to warn the plaintiff.

      “The common law narrowly defines those responsible civilly for failure to
prevent criminal assaults by third parties.” Berry v. Watchtower Bible & Tract
Soc., 152 N.H. 407, 415 (2005). Otherwise, “close friends, neighbors and
extended family [would] find themselves at risk of civil liability for situations
they did not create and over which they exercise no control.” Id. Because we
conclude that the defendant did not owe the plaintiff a duty to warn him “that
she had a potentially dangerous stalker who had been harassing her,” we
uphold the trial court’s grant of the defendant’s motion to dismiss.

                                                  Affirmed.

      CONBOY, LYNN, and BASSETT, JJ., concurred.




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