Bryant v. Noether, et al.

2001 DNH 036

• Court: District Court, D. New Hampshire
• Decided: February 16, 2001
• Docket: CV-00-191-M
• Status: Published

Opinion

Bryant v . Noether, et a l . CV-00-191-M 02/16/01 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Richard Bryant, Plaintiff

v. Civil N o . 00-191-M Opinion N o . 2001 DNH 036 Lauren Noether, in her individual and official capacity, Sheriff Stephen Hodges, in his individual and official capacity, Deputy Richard Batstone, in his individual and official capacity, Chief Michael McCarty, in his individual and official capacity, Sgt. Karen McCarty, in her individual and official capacity, Sgt. Brian Loanes, in his individual and official capacity, and New Beginnings, Defendants

O R D E R

Richard Bryant brings suit under 42 U.S.C. § 1983 for

violations of his federal rights, and also asserts various state

law claims, against state actors involved in his arrest and

prosecution for domestic assault. At issue here is plaintiff’s

negligent hiring, training, and supervision claim against New

Beginnings, a women’s crisis center. This order resolves New

Beginnings’ motion to dismiss for failure to state a claim

(document n o . 5 ) . See Fed. R. Civ. P. 12(b)(6). Standard of Review

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is one of

limited inquiry, focusing not on "whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claims." Scheuer v . Rhodes, 416 U.S.

232, 236 (1974). In considering a motion to dismiss, "the

material facts alleged in the complaint are to be construed in

the light most favorable to the plaintiff and taken as admitted,

with dismissal to be ordered only if the plaintiff is not

entitled to relief under any set of facts he could prove."

Chasan v . Village District of Eastman, 572 F.Supp. 5 7 8 , 579

(D.N.H. 1983), aff'd without opinion, 745 F.2d 43 (1st Cir. 1984)

(citations omitted).

Although pleading requirements are minimal, they “are not

tantamount to nonexistent requirements.” Cooperman v .

Individual, Inc., 171 F.3d 4 3 , 47 (1st Cir. 1999) (citing Gooley

v . Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988)) (internal

quotation marks omitted). At the least, the complaint must set

forth facts as to each material element of the cause of action.

Id.

2 Relevant Background

Plaintiff is a Belmont, New Hampshire, police officer. His

wife is employed as a corrections officer by the Belknap County

Department of Corrections. On April 1 7 , 1997, plaintiff and his

wife argued in their home, during which some physical contact

occurred. He wife subsequently obtained a domestic violence

protective order (DVPO), with the help of a counselor from New

Beginnings.

Based on the allegations contained in the petition for the

DVPO, sworn to by his wife, plaintiff was arrested and charged

with assault. He was reassigned to administrative duty by the

police department, and was concerned that he might lose his job.

The charges were later reduced, and plaintiff accepted an offer

of compromise from the county attorney under which the charges

were nol prossed (avoiding a criminal conviction) on condition

that he attend marriage counseling.

Discussion

Plaintiff claims in this case that New Beginnings breached a

duty owed to him under New Hampshire common law, by negligently

3 hiring, training, and/or supervising the staff member who

accompanied plaintiff’s wife to Laconia District Court and

assisted her in completing the domestic violence petition. He

further alleges that he suffered damages, because his arrest and

prosecution were based on the information contained in the DVPO.

The tort of negligent hiring, training, and supervision,

recognized in New Hampshire through adoption of the Restatement

(Second) of Agency § 213, imposes direct liability on an employer

for actions of an employee, regardless of the employee’s

liability. See Cutter v . Town of Farmington, 126 N.H. 836, 840

(1985). It can be based on employer conduct such as giving

misleading, incomplete, or otherwise improper instructions to

employees, or using an employee known to be dangerous. See

Restatement (Second) of Agency § 213 cmts. c and d. Liability

“exists only if all the requirements for an action of tort for

negligence exist.” Restatement (Second) of Agency § 213 cmt. a.

But, this cause of action differs from respondeat superior, a

claim not asserted, which imposes vicarious liability on an

employer based upon an employee’s liability. See Cutter, 126

N.H. at 840. A negligent hiring cause of action does not arise,

4 however, “merely because the one employed is incompetent,

vicious, or careless.” Id. cmt. d. An employer is liable i f ,

“under the circumstances, the employer has not taken the care

which a prudent man would take in selecting the person for the

business at hand,” id. cmt. d, or in providing instructions. Id.

cmt. c.

Failure to take requisite care in selecting an employee, or

in providing instructions, would constitute a breach of a duty

owed by an employer to foreseeable third parties. Accordingly, a

material element of this cause of action requires that “the

employer antecedently had reason to believe that an undue risk of

harm would exist because of the employment.” Id. cmt. d. In

other words, to state a claim, the complaint must allege facts

that, if true, would establish that the defendant employer knew,

or should have known, the employee presented a risk to third

parties. See Cooperman v . Individual, Inc., 171 F.3d 4 3 , 47 (1st

Cir. 1999) (“plaintiff must set forth factual allegations, either

5 direct or inferential, respecting each material element”

(internal citation and quotation marks omitted)). 1

Plaintiff alleges that the New Beginnings counselor “coaxed

[his] wife into ‘making it [(the fight)] sound worse than it was’

to ensure that she would get the order granted.” Complaint ¶ 3 2 .

He also states that “[t]he New Beginnings employee suggested and

coaxed the plaintiff’s wife into exaggerating the truth to get a

DVPO.” Id. ¶ 7 8 . But, there are no allegations that New

Beginnings knew, or should have known, that its counselor would

encourage a victim of domestic violence to make materially false

statements in a petition for a DVPO, and not facts which would

support such an assertion. Nor are there any allegations in the

complaint that New Beginnings gave its counselor misleading,

incomplete, or otherwise improper instructions. Plaintiff’s

general and conclusory allegations that New Beginnings was

“negligent” and “failed” to properly hire, train, and/or

supervise the unidentified counselor, see Complaint ¶¶ 7 7 , 79-81,

1 Restatement (Second) of Torts § 317 also subjects an employer to liability for actions of an employee conducted outside the scope of employment; however, the same knowledge requirement exists under that theory. See Restatement (Second) of Torts § 317 cmt. a.

6 are not supported by any factual assertions. See Cooperman, 171

F.3d at 47-48 (discussing difference between facts and

conclusions).

Even if plaintiff were able to prove the counselor

encouraged his wife to be untruthful on her petition for a DVPO,

and that his wife did materially misstate facts, plaintiff still

could not recover from New Beginnings under the direct liability

theory of negligent hiring, training, and supervision, because he

has not alleged any facts capable of supporting a finding that

New Beginnings, as opposed to the counselor, breached a duty of

care owed to plaintiff.

Conclusion

Accordingly, plaintiff has failed to state a claim upon

which relief may be granted. New Beginning’s motion to dismiss

(document n o . 5 ) is granted, without prejudice.

7 SO ORDERED.

Steven J. McAuliffe United States District Judge

February 1 6 , 2001

cc: Richard Bryant Jeffrey A . Runge, Esq. John A . Curran, Esq. Donald E . Gardner, Esq. Gary M . Burt, Esq.