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                  THE SUPREME COURT OF NEW HAMPSHIRE

                             ___________________________


Hillsborough-northern judicial district
No. 2014-0496


      DANIELLE (GRAVELINE) GAUTHIER M/N/F MORGAN GRAVELINE

                                          v.

                   MANCHESTER SCHOOL DISTRICT, SAU #37

                              Argued: April 22, 2015
                        Opinion Issued: September 4, 2015

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


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

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

      The following facts are derived from the trial court’s order. On February
4, 2011, Morgan was involved in an altercation with another student, A.M., on
a school bus. During that altercation, A.M. punched Morgan in the face. The
bus driver reported the incident to the defendant on February 7.
       The school principal, Barry Albert, downloaded the bus driver’s report on
February 8 and met with Morgan the next day. Morgan minimized the
incident, told Albert she did not know the name of the other student involved in
the altercation, and asked Albert not to notify her mother. Although Albert
informed Morgan that he would have to notify her mother, he did not do so.

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

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

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

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

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


                                         2
v. Sanborn Reg’l Sch. Dist., 165 N.H. 694, 698 (2013) (holding that “RSA 507-
B:2 provides an exception to RSA 507-B:5 only when there is a nexus between
the injury and a governmental unit’s ownership, occupation, maintenance, or
operation of a motor vehicle or premises”). Alternatively, the plaintiff argues
that if RSA 507-B:2 and :5 apply to immunize the defendant in this case, they
violate both the right to remedy and equal protection guarantees of Part I,
Article 14 of the New Hampshire Constitution. Finally, the plaintiff asks us to
“exercise [our] discretion to resolve a question of law, by interpreting the
requirements of the parental notice provision of the Manchester School District
anti-bullying policy.” (All capitals and underlining omitted.) The defendant
cross-appeals, arguing for affirmance of the trial court’s order because: (1)
there is no common-law duty to report bullying within forty-eight hours; and
(2) it is entitled to immunity under RSA 193-F:7 (Supp. 2014) and the doctrine
of official immunity.

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

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

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




                                        3
      New Hampshire common law impose[s] a duty upon defendant
      teachers, coaches, superintendents, principals, secretaries, school
      districts and school administrative units to protect plaintiff
      students by reporting alleged sexual misconduct to the proper
      authorities or taking other protective measures, if they knew, or
      render them liable if they should have known, that plaintiffs were
      being sexually harassed, assaulted or abused by . . . [other
      teachers or coaches].

Marquay, 139 N.H. at 712.

        Before addressing the district court’s questions, we clarified the potential
roles a statutorily-prescribed standard of conduct may play in establishing civil
liability. Id. at 713-15. In short, the statute may create, either explicitly or
implicitly, a cause of action for violation of its standard of conduct or, if a
cause of action already exists at common law, “the standard of conduct to
which a defendant will be held may be defined as that required by statute,
rather than as the usual reasonable person standard.” Id. at 713. The latter
role is referred to as the doctrine of negligence per se. See id. As Marquay
made clear, however, “[t]he doctrine of negligence per se . . . plays no role in the
creation of common law causes of action” and “in many cases, the common law
may fail to recognize liability for failure to perform affirmative duties that are
imposed by statute.” Id. at 713-14. “If no common law duty exists, the
plaintiff cannot maintain a negligence action, even though the defendant has
violated a statutory duty.” Id. at 714.

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

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

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

RSA 193-F:9 (Supp. 2014). In addition, RSA 193-F:7 provides immunity
from suit, stating, in part:


                                         4
      A school administrative unit employee, school employee, chartered
      public school employee, regular school volunteer, pupil, parent,
      legal guardian, or employee of a company under contract to a
      school, school district, school administrative unit, or chartered
      public school, shall be immune from civil liability for good faith
      conduct arising from or pertaining to the reporting, investigation,
      findings, recommended response, or implementation of a
      recommended response under this chapter.

RSA 193-F:7.

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

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

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


                                        5
the parties.” Mikell, 158 N.H. at 731 (citation omitted); see also Ahrendt v.
Granite Bank, 144 N.H. 308, 314 (1999) (noting that private persons generally
have no duty to protect others from criminal acts by third persons but that
“[s]uch a duty may arise . . . if a special relationship exists” (quotation
omitted)). In Marquay we recognized that a special relationship exists between
schools and the students in their care so as to impose upon schools “certain
duties of reasonable supervision.” Marquay, 139 N.H. at 717 (emphasis
added). The specific duty involved in Marquay was that of “protect[ing] plaintiff
students by reporting alleged sexual misconduct to the proper authorities or
taking other protective measures.” Id. at 712.

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

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

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

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


                                        6
      Service Law] § 224-a, did intend a private right of action to be
      available to anyone who took the extra step of alleging that a
      violation of § 224-a constituted common-law fraud. And it is
      unlikely that New York courts, which frown on artful pleading to
      circumvent a bar against private actions, would allow such an end-
      run around the legislature’s apparent intent.

Broder, 418 F.3d at 201 (quotations, brackets, and citations omitted); see also
Kerusa Co. LLC v. W10Z/515 Real Estate Ltd., 906 N.E.2d 1049, 1055 (N.Y.
2009) (“That [the plaintiff] alleged the elements of common-law fraud does not
transmute a prohibited private cause of action to enforce Martin Act disclosure
requirements into an independent common-law tort.”).

       Because we find no common-law duty under these circumstances, we
affirm the grant of summary judgment for the defendant. Having found the
trial court’s order sustainable on this ground, we need not address the
plaintiff’s constitutional challenge to RSA 507-B:2 and :5 immunity. See
Anglin, 140 N.H. at 260. We also decline the plaintiff’s invitation to interpret
the requirements of the parental notice provision of the Manchester School
District anti-bullying policy.

                                                   Affirmed.

      DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.




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