Daroczi v . V T . Center for the Deaf CV-02-440-JM 01/28/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Chrystal Daroczi
v. Civil N o . 02-440-JM Opinion N o . 2004 DNH 027 Vermont Center for the Deaf & Hard of Hearing, Inc. d/b/a The Austine School for the Deaf
O R D E R
Chrystal Daroczi alleges in this action that Vermont Center
for the Deaf & Hard of Hearing, Inc. d/b/a The Austine School for
the Deaf (“Austine”) negligently hired, retained, and supervised
an employee who sexually harassed and attempted to molest her.
The Court has for consideration Defendant’s Motion for Summary
Judgment (document n o . 1 9 ) , and Defendant’s Motion to Strike
Portions of Plaintiff’s Errata Sheet, Affidavit and Additional
Statement of Material Facts (document n o . 2 7 ) . As discussed
herein, the Court denies the motion to strike because the
evidence Defendant challenges is admissible under the applicable
rules. Additionally, the Court denies the motion for summary
judgment, which argues that Plaintiff cannot establish harm
sufficient to recover on a claim of negligently caused emotional
distress, because the Plaintiff’s damages claim against the Defendant is in fact, not premised on the tort of negligent
infliction of emotional distress. Plaintiff’s claim instead is
premised on the Defendant’s direct liability, in negligence, for
its employee’s intentionally tortious conduct. There is no
requirement that a plaintiff offer expert testimony to support a
claim for damages caused by an intentional tort.
I. Summary Judgment Standard
Summary judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). A genuine issue is one “that properly can be resolved
only by a finder of fact because [it] . . . may reasonably be
resolved in favor of either party.” Anderson v . Liberty Lobby,
Inc., 477 U.S. 2 4 2 , 250 (1986). A material fact is one that
affects the outcome of the suit. See id. at 248.
“Summary judgment is a procedure that involves shifting
burdens between the moving and the nonmoving parties.” LeBlanc
v . Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). The
moving party bears the initial burden of establishing that there
2 is no genuine issue of material fact. See Celotex Corp. v .
Catrett, 477 U.S. 3 1 7 , 323 (1986). If that burden is met, the
opposing party can avoid summary judgment only by providing
properly supported evidence of disputed material facts that would
require trial. Id. at 324. Evidence that is “merely colorable,
or is not sufficiently probative” will not preclude summary
judgment. Anderson, 477 U.S. at 249-50 (citation omitted); see
also, LeBlanc, 6 F.3d at 842 (“the nonmoving party must establish
a trial-worthy issue by presenting enough competent evidence to
enable a finding favorable to the nonmoving party.”).
On a motion for summary judgment, the court construes the
record in the light most favorable to the non-moving party,
resolving all inferences in its favor, and determines whether the
moving party is entitled to judgment as a matter of law. Carroll
v . Xerox Corp., 294 F.3d 2 3 1 , 237 (1st Cir. 2002). The court
does not credit the nonmoving party’s “conclusory allegations,
improbable inferences, and unsupported speculation.” Medina-
Munoz v . R.J. Reynolds Tobacco Co., 896 F.2d 5 , 8 (1st Cir.
1990). Applying this standard, the facts are recited below.1
1 Defendant filed a statement of undisputed material facts in support of its motion for summary judgment. In response, Plaintiff filed a statement of disputed facts, and additional material facts, with her opposition. Defendant argues in its
3 II. Background
Daroczi is a completely deaf former Austine boarding
student. She attended Austine between the years of 1990-2002,
usually boarding from Sunday night to Friday afternoon. Austine
is a private, non-profit corporation organized and existing under
the laws of the state of Vermont with a principal place of
business in Brattleboro, Vermont.
Austine hired Dolph, a/k/a “John,” Rehkop (“Rehkop”) as part
of its staff in 1996. When hired, Rehkop was a 27-year old
college graduate. In August 1998, Rehkop was assigned or
promoted to a position as behavioral support specialist.
Rehkop’s duties then included, among other things, disciplining
students. Rehkop had access to most school buildings, and was
allowed to have unsupervised meetings with students.
A. Alleged Inappropriate Conduct
Plaintiff alleges that the first time Rehkop acted
reply that Defendant’s statements of undisputed facts should be deemed unopposed where Plaintiff has denied statements contained in her amended complaint, interrogatory responses, and deposition testimony without citing any contrary sworn testimony. Fed. R. Civ. P. 56(e) provides that: “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, . . . .” Thus, the Court overrules Plaintiff’s objections to Defendant’s statements of facts where Plaintiff has not opposed Defendant’s pleading with competent evidence.
4 inappropriately towards her was in the spring of 1999 during a
semi-formal outing to an Asian restaurant, located approximately
thirty minutes from Austine. This outing included six female
students including Plaintiff, Rehkop, and another Austine staff
member chaperone named Melissa Vigilante. Plaintiff alleges that
Rehkop touched her inappropriately and flirted with her at the
restaurant. This behavior occurred as Plaintiff and Rehkop were
seated at a large table while a chef prepared food at the table.
The table was in the shape of a “U,” and people seated at the
table could see each other without obstruction. Rehkop was
seated near Plaintiff, although Plaintiff does not recall who was
sitting on either side of her.
Plaintiff alleges that Rehkop began to tease her, and “get
on her case,” at the restaurant, but she could not recall
specifically what he said. She alleges that Rehkop also touched
her inappropriately on the arm as he attempted to get her
attention. Although it is customary in the deaf community to tap
a person on the shoulder to gain that person’s attention,
Plaintiff felt that Rehkop touched her inappropriately because he
was rubbing up and down the side of her upper arm. She
testified, however, that at the time of the outing she thought
5 that Rehkop’s behavior might have been inadvertent or that “he
was just trying to be sweet.”
The next time that Rehkop behaved in an inappropriate manner
occurred during that same evening after Plaintiff had returned to
Austine from the restaurant. Plaintiff alleges that she went to
the dining room in the high school girl’s dormitory to work on
her homework. After an unspecified amount of time passed, Rehkop
came to see her. Rehkop had a “very serious expression” on his
face and Plaintiff thought that she was in trouble. Rehkop
touched Plaintiff on the shoulder to get her attention and said
“you need to come with me to the office now.” Rehkop then took
Plaintiff to the dorm R.A. office, also located within the high
school girl’s dormitory. They walked to the office without
conversation. Plaintiff cannot recall whether Rehkop had to
unlock the office before entering.2
Inside the office, Rehkop sat behind the desk with Plaintiff
seated in a chair in front of the desk. Plaintiff cannot recall
how close to the desk she was seated. She was wearing a black
2 In her affidavit, filed in support of her opposition to the motion for summary judgment, Plaintiff states that “[o]nce inside the office, M r . Rehkop closed the door behind u s . There was paper covering the windows of the office, so nobody could see inside.” Daroczi Aff., ¶ 3
6 dress with a white checker pattern that came about halfway up her
thigh. After Plaintiff sat down, they engaged in “typical
conversation.” She does not recall how long this conversation
lasted. After a period of time, Rehkop stood u p , walked around
the desk to the front, leaned against the desk, and rested his
elbow on the desk with his head in his hand. At this point,
Rehkop began to flirt with Plaintiff, which Plaintiff described
as winking at her and looking at her “from head to toe, up and
down.” Plaintiff cannot recall how many times Rehkop winked at
her. She described Rehkop’s “looking [her] up and down” as
seeing Rehkop’s eyes lustfully look at her face and then travel
down her body to her feet. She cannot recall how many times
Rehkop did this, but claims it was more than once.
Plaintiff alleges that Rehkop then asked her to “open her
legs” to which Plaintiff said “no.” Rehkop then urged her to
comply saying “come o n , come on” to which she again said “no.”
Plaintiff alleges that Rehkop then asked her if she wanted to
touch his “big dick.” As Rehkop was saying this, he put his
hands on his pants as if he was going to unbutton his pants.3
3 Plaintiff states in her affidavit that Rehkop “also put his hands on his pants as if he were going to expose himself” to her. Daroczi Aff., ¶ 3 . In that same paragraph, she adds that Rehkop was taller, heavier and presumably stronger than she was. Id.
7 Plaintiff again said “no” and Rehkop stopped. Rehkop did not
unbutton his pants. Plaintiff alleges that the conversation then
went on to “other things,” which she cannot recall.
Plaintiff alleges that before she left the office Rehkop
told her not to tell anyone about what occurred during their
meeting, and that if she did he would get back at her by
reporting to Austine officials that Plaintiff’s relationship with
an Austine student, who was over 18-years old, was continuing in
secret. Plaintiff was either 13 or 14-years old at that time.
Plaintiff testified that she had already gotten into trouble
because of her relationship with that boyfriend, and that her
boyfriend had been reported to SRS, which is an abbreviation for
Vermont Department of Social and Rehabilitative Services.
Plaintiff was concerned that her boyfriend might go to jail if
Rehkop disclosed that the relationship had continued. There
were no witnesses to the meeting between Rehkop and Plaintiff.
Following the incident in the dorm R.A. office, Plaintiff
alleges that Rehkop winked at her in the hallway. Plaintiff
cannot recall how many times this occurred, but claims that it
was more than once.4 After Rehkop winked at her, which was
4 Plaintiff changed her deposition testimony to reflect at page 1 3 8 , line 1 6 , that “The winking and flirting incidents
8 whenever she walked past him, Rehkop would go back to acting
normally. Plaintiff could not recall Rehkop taking any other
actions that she considered inappropriate.
Plaintiff did not complain to Rehkop, or anyone else, about
Rehkop touching her on the arm at the restaurant in the spring of
1999. She did not tell anyone at Austine about Rehkop’s conduct
in the dorm R.A.’s office until September 1 6 , 1999. On that
date, Plaintiff told Ina Schaeffer, an Austine counselor, about
the office meeting with Rehkop. By that time, Rehkop no longer
worked at Austine. Plaintiff admits that she never told anyone
at Austine that Rehkop would wink at her, and she does not know
if anyone saw Rehkop wink at her in the hallway.
Plaintiff testified that she expected that Rehkop would get
into trouble if she reported his conduct in the dorm R.A.’s
office to school officials. Austine had trainings at the
beginning of every year where students were taught to report
problems with inappropriate conduct to John Fish or M s .
Schaeffer, who were persons in positions of authority. While
those trainings focused on inappropriate conduct by students
occurred more than once.” See Def. Reply to Pl.’s Statement of Disputed Material Facts, Ex. D (emphasis added). There is no mention or description of any additional Rehkop “flirting” in the record. The Court does not credit that conclusory allegation.
9 toward each other, not by staff directed toward students,
Plaintiff complained to M s . Schaeffer about Rehkop’s conduct.
Plaintiff testified that she did not report Rehkop’s
behavior prior to September 1 6 , 1999 for the following reasons:
(1) she was afraid that Rehkop would reveal that she continued to
see the significantly older student and that the student would be
disciplined; (2) she was afraid that she would be punished for
continuing the relationship with that student; (3) she worried
that people would think badly of her because of her relationship
with the older student; and (4) she worried that Rehkop would
make up stories about her that were not true, but that would get
her into trouble at school.
B. Plaintiff’s Alleged Injuries
During discovery, Defendant requested in its third
interrogatory that Plaintiff: “list and describe in detail each
and every mental, emotional, or nervous condition, as well as
each and every injury, illness or physical condition, you claim
to have suffered as a result of those incidents alleged in your
Amended Complaint.” Plaintiff answered: “As a result of the
incidents alleged in her Amended Complaint, [Plaintiff] has had
nightmares, flashbacks, and other manifestations of emotional
10 distress.” Pl.’s Resp. to Def.’s Interrog. N o . 3 . Plaintiff
testified at her deposition that she has bad dreams related to
Rehkop and that she sometimes feels that Rehkop is looking over
her shoulder and she gets momentarily scared; and that if she
goes into, or near the staff office in the high school girls
dormitory, she is bothered by “flashbacks” and “visions of what
happened there.” Plaintiff testified that she had bad dreams
about Rehkop pretty often but that she could not recall how many
times. She alleged that her dreams included images of Rehkop
threatening her with a knife, or placing a noose around her neck.
Plaintiff also testified that she has bad memories of Rehkop when
she watches a movie that depicts a “very similar experience to
mine,” or when she is “not really focusing on one thing.”5
Plaintiff alleges in her affidavit that at the time Rehkop
harassed her and attempted to molest her, she felt embarrassed
and ashamed and was particularly afraid that Rehkop would attack
her, even though she had rejected his sexual advances. Daroczi
5 Plaintiff added to her deposition testimony at page 1 5 1 , line 1 4 , that: “In addition to the nightmares, lost sleep and fear I continue to experience, I also suffered from nightmares, lost sleep, fear, flashbacks, embarrassment, and shame in the past.” Def. Reply to Pl.’s Statement of Disputed Material Facts, Ex. D. She stated in her errata sheet that the reason for the change was “confusion about question, including reference to present tense.”
11 Aff., ¶ 4 . She alleges that she continues to suffer from
nightmares, insomnia, flashbacks, fear, and feelings of
embarrassment and shame even after Rehkop left Austine in
September 1999. Id., ¶ 5 . She states that the only reason that
she did not leave Austine before 2002 was because she felt that
her then-boyfriend, another Austine student, could protect her.
Id. That boyfriend graduated from Austine in the spring of 2002.
Id. Plaintiff transferred from Austine the following fall.
Plaintiff admits that she has received no treatment and has
taken no medications for any of the alleged problems that she
experienced as a result of Rehkop’s conduct. Plaintiff has not
disclosed any expert witnesses in support of her claims of
emotional distress. Plaintiff also admits that her experiences
with Rehkop have not stopped her from engaging in any activities.
III. Motion to Strike
A. Plaintiff’s Deposition Errata Sheet
Defendant argues that Plaintiff impermissibly attempts to
alter and amend her prior sworn testimony both at deposition and
via interrogatory in her errata sheet. In particular, Defendant
argues that Plaintiff has substantially amended her version of
how Rehkop asked her to engage in sexual contact, and the impact
12 of Rehkop’s conduct on her.
Although Defendant complains that Plaintiff made her errata
sheet changes after Defendant moved for summary judgment, there
is no question that Plaintiff’s errata sheet was timely under the
rules. The only issue before the Court is whether or not
Plaintiff’s substantive changes to her deposition testimony
violated Rule 30(e), which provides that:
If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them.
Fed. R. Civ. P. 30(e) (emphasis added). Defendant argues that
the substantive changes that Plaintiff makes in her errata sheet
violate Rule 30(e), citing Greenway v . Int’l Paper Co., 144
F.R.D. 322 (W.D. L a . 1992), as support. In Greenway, the court
found that:
The purpose of Rule 30(e) is obvious. Should the reporter make a substantive error, i.e., he reported “yes” but I said “no,” or a formal error, i.e., he reported the name to be “Lawrence Smith” but the proper name is “Laurence Smith,” then corrections by the deponent would be in order. The Rule cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home
13 and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination.
Id. at 325.
The holding in Greenway on the application of Rule 30(e) is
not controlling and is not followed by this court. Other courts
have held that the plain language of the rule only requires that
“the deponent abide by a restricted time frame for making the
changes and recite the reasons for any changes.” Elwell v .
Conair, Inc., 145 F. Supp. 2d 7 9 , 88 (D. M e . 2001) (quoting Great
N . Storehouse, Inc. v . Peerless Ins. Co., 2000 WL 1901266 at *2
(D.Me. Dec. 2 9 , 2000)). In Elwell, the court criticized the
reasoning in Greenway as unpersuasive emphasizing that in
addition to the errata sheet changes, the deponent’s original
answers may be provided to the jury, and that jurors should be
able to discern the artful nature of the changes. Elwell, 145 F.
Supp. 2d at 8 7 ; see also, Tingley Sys. v . CSC Consulting, Inc.,
152 F. Supp. 2d 9 5 , 119-120 (D. Mass. 2001) (finding that the
express language of Rule 30(e) allows a deponent to change the
substance of his answers, and that the deponent need only provide
a non-conclusory reason for doing s o ) . At least one noted
commentator has urged that the interpretation applied by the
14 court in Elwell is the better view. See 7 James Wm. Moore, et
a l . , Moore’s Federal Practice, § 30.63[3] (3rd ed. 2003)
(“Although it is unseemly to see a deponent ‘rewriting’
deposition testimony, the prior (presumably less advantageous)
testimony is not expunged from the record. The deponent can be
cross-examined about the changes and impeached by the
inconsistency, with the finder of fact invited to determine that
the initial reaction was the honest reaction.”). After a review
of the conflicting authorities on this issue, the Court denies
Defendant’s motion to strike the portions of Plaintiff’s errata
sheet cited above in the notes.
B. Plaintiff’s Affidavit Filed In Support of Her Objection
Similar to its argument supporting the motion to strike
portions of Plaintiff’s errata sheet, Defendant argues that it is
inappropriate and impermissible for a party opposing a motion for
summary judgment, such as the Plaintiff here, to “spice up” her
prior deposition testimony through an affidavit. The First
Circuit has found that “[w]hen an interested witness has given
clear answers to unambiguous questions, he cannot create a
conflict and resist summary judgment with an affidavit that is
clearly contradictory, but does not give a satisfactory
15 explanation of why the testimony is changed.” Colantuoni v .
Alfred Calcagni & Sons, 44 F.3d 1 , 4-5 (1st Cir. 1994); see also,
Morales v . A.C. Orssleff’s EFTF, 246 F.3d 3 2 , 35 (1st Cir. 2001)
(a party may not create an issue of fact simply by submitting a
subsequent contradictory affidavit); Torres v . E.I. Dupont de
Nemours & Co., 219 F.3d 1 3 , 20-21 (1st Cir. 2000) (post-summary
judgment affidavit that contradicted sworn deposition testimony
did not indicate that there was confusion at the time of the
deposition or that the prior testimony was in error). This
language does not mean, however, that all changes to a party’s
testimony are prohibited. The court has held that it would be an
abuse of discretion to disregard an affidavit pertaining to
previously identified incidents that are merely described with
more specificity in the affidavit. Hernandez-Loring v .
Universidad Metropolitana, 233 F.3d 4 9 , 55 (1st Cir. 2000).
Although the Plaintiff’s affidavit is perhaps close to the
line, the Court does not find that the testimony in Plaintiff’s
affidavit clearly contradicts her prior sworn testimony, or that
it describes any completely new incidents. Although the
Plaintiff did reply “I think that’s i t , I guess” and “That’s it”
in response Defendant’s counsel’s question asking “Other than bad
16 dreams, feeling like Rehkop is looking over your shoulder, and
occasional flashbacks or bad memories, are there any other
problems you attribute to Rehkop?” the Court does not find that
Plaintiff’s response precluded her from adding any additional
details regarding the incidents that she complained of or the
harm that she suffered in her affidavit. See Hinkley v . Baker,
122 F. Supp. 2d 5 7 , 59 n.1 (D. M e . 2000) (finding that answering
“Yes” to a deposition question inquiring whether a deponent had
disclosed all bad or offensive conduct did not foreclose the
deponent from providing additional details regarding the alleged
incidents of abuse in a subsequent affidavit). Here, the
Plaintiff’s affidavit elaborates on the circumstances surrounding
the incidents that she previously been described. To the extent
that Plaintiff’s subsequent elaboration undermines her
credibility, she may be confronted with her deposition testimony
at trial. With regard to Plaintiff’s description of the injuries
that she suffered, Plaintiff’s affidavit repeats the changes to
her deposition testimony, which this Court has already found
permissible under Rule 30(e). Accordingly, the Court denies
Defendant’s motion to strike portions of Plaintiff’s affidavit.
17 C. Plaintiff’s Statement of Additional Material Facts
Defendant argues that Plaintiff’s statement of additional
material facts contains “gross misrepresentations” of the
testimony given by Amanda Schauer, Noella Kolash, Samantha Turner
and Nicole Woods, former Austine students who also claim to have
been harassed or molested by Rehkop.6 More significantly,
Defendant argues that these facts “are not in any way ‘material’
to the legal argument posed by Defendant’s motion for summary
judgment, which focuses solely on M s . Daroczi’s allegations
concerning M r . Rehkop’s conduct towards her, the harm she
allegedly suffered as a consequence, and the standard of proof
necessary to prevail at trial for such claims.” Def.’s Reply to
Pl.’s Statement of Disputed Material Facts at 3 5 .
Defendant does not state affirmatively in its moving papers
that it does not contest for purposes of summary judgment the
Plaintiff’s allegation that Defendant was negligent. To the
contrary, Defendant disputes Plaintiff’s allegation that
Defendant knew or should have known of Rehkop’s propensity to
engage in sexual misconduct. See Def.’s Mem. of Law at 2 .
6 Defendant did not to support its challenge to Plaintiff’s statement of additional material facts with any citations to competent evidence.
18 Defendant then denies legal responsibility for any such conduct
by Rehkop. Id. Plaintiff’s statement of additional material
facts, in part discussing claims by other Austine students of
harassment and molestation by Rehkop from 1997 to 1999 and
Austine’s notice of those claims, are relevant to the issue of
whether Austine was negligent in hiring, retaining and
supervising Rehkop. In light of Austine’s disavowal of any
responsibility for Rehkop’s conduct in its moving papers, the
Court finds unpersuasive Defendant’s argument that Plaintiff’s
additional statement of material facts should be struck from the
record; the motion to strike is denied. For purposes of
consideration of the motion for summary judgment, the Court finds
that Defendant has not contested by appropriate record support
Plaintiff’s claim that Austine either knew, or should have known,
about the risk of Rehkop engaging in the sexual misconduct
alleged in Plaintiff’s Amended Complaint.
IV. Motion for Summary Judgment
A. Choice of Law
In determining what state law applies in a diversity action,
such as this, a federal district court applies the forum state’s
choice of law rules. Lexington Ins. C o . v . Gen. Accident Ins.
19 C o . of Am., 338 F.3d 4 2 , 46 (1st Cir. 2003).
When New Hampshire is the forum for a suit in which one or more other States also have an interest, we treat potential conflicts of law as follows: we first decide whether a relevant law is substantive or procedural; if it is substantive, we determine whether it actually conflicts with the laws of another interested State; if it is procedural, we generally apply our own law.
Keeton v . Hustler Magazine, 549 A.2d 1187, 1191 (N.H. 1988). The
issue of whether this Court should apply the law of New Hampshire
or Vermont to the Plaintiff’s negligence claims is substantive.
As such, the Court must determine whether an actual conflict
exists in the law of the two states.
Defendant argues that there is no conflict between the laws
of New Hampshire and Vermont with regard to the proof required
for Plaintiff’s claim for damages for negligently caused
emotional distress. Plaintiff disputes Defendant’s assertion
arguing that unlike New Hampshire law, there is no requirement
under Vermont law that a plaintiff offer expert testimony to
recover damages for negligently caused emotional distress.
Having carefully reviewed the amended complaint and the
parties’ summary judgment papers, the Court has determined that
the parties have briefed an issue that is not even before the
court. There is no claim for damages in the Plaintiff’s
20 complaint based on either “negligently caused emotional
distress,” or “negligent infliction of emotional distress.”
Rather, in all three counts of Plaintiff’s amended complaint she
seeks damages based on Defendant’s alleged direct liability, in
negligence, for damages caused by the intentionally tortious acts
of Defendant’s employee. The Court finds no actual conflict
between the laws of New Hampshire and Vermont with regard to
claims alleging direct liability for damages based on negligent
hiring, retention, or supervision. Under the law of either
state, the Court finds that the Plaintiff has raised a genuine
issue for trial on the Defendant’s liability, and that Plaintiff
need not offer expert testimony in order to recover damages.
The Supreme Court of New Hampshire recognized claims based
on negligent hiring, retention, and supervision in a context
closely analogous to that before the Court. In Marquay v . Eno,
662 A.2d 2 7 2 , 281 (N.H. 1995), court found that a school has a
duty not to hire or retain employees that it knows or should know
have a propensity for sexually abusing students. “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
21 employee.” Id.; see also, Trahan-Laroche v . Lockheed Sanders,
657 A.2d 4 1 7 , 419 (N.H. 1995) (a principal may be found directly
liable for damages resulting from the negligent supervision of
its agents’ activities).
Similarly, Vermont courts have recognized that a principal
or master has a duty to exercise reasonable care to supervise or
control his agent or servant if he knows or should know of the
need for exercising such control, and has the opportunity to do
so. See Brueckner v . Norwich Univ., 730 A.2d 1086, 1093 (Vt.
1999) (finding that a principal may be found directly liable for
damages resulting from negligent supervision of its agents’
activities and citing Trahan-Laroche, 657 A.2d at 4 1 9 ) ; Kennedy
v . Roman Catholic Diocese, 921 F. Supp. 2 3 1 , 234 (D. V t . 1996)
(finding that the defendant’s exercise of control of some
activities of its priests did not impose a legal duty to protect
the plaintiff absent some notice that a priest accused of sexual
abuse might engage in the volitional criminal acts at issue);
Bradley v . H.A. Manosh Corp., 601 A.2d 9 7 8 , 981 (Vt. 1991) (“If
the actor is a servant upon his master’s premises, a duty to act
reasonably to control that servant’s actions arises if the master
has knowledge of (1) ability to control, (2) need to control, and
22 (3) opportunity to control that servant.”). Although the Court
has not located any Vermont case that has decided a claim based
on alleged negligent hiring or retention, the Supreme Court of
Vermont has implied that such claims are valid under Vermont law.
See Huminski v . Lavoie, 787 A.2d 489, 520-521 (Vt. 2001) (finding
that plaintiff’s complaint alleging, among other things,
negligent hiring and supervision, required more thorough analysis
to determine whether the claims were subject to the doctrine of
absolute prosecutorial immunity); Doe v . Doe, 768 A.2d 1291,
1292-93 (Vt. 2001) (reversing an order of summary judgment in
defendant’s favor in a case where plaintiff alleged that she was
sexually abused by a state employee and stated claims based o n ,
among other things, negligent hiring and supervision).
In a claim for damages based on negligent hiring, retention
or supervision, the defendant is liable for all foreseeable
damages caused by the defendant’s employee or agent. Marquay,
662 A.2d at 281. Recoverable damages for an intentional assault,
for example, may include the plaintiff’s pain and suffering
caused by the assault without the necessity for support by expert
testimony. In a recently decided case, the Supreme Court of New
Hampshire expressly found that damages for mental suffering are
23 recoverable without the necessity of showing actual physical
injury or offering expert testimony in cases alleging the
intentional tort of assault if the damage is of a kind that
normally results from an assault and reasonable in extent. Silva
v . Warden, N.H. State Prison, N o . 2003-196, 2003 WL 23008815 at
*2 (N.H. Dec. 2 4 , 2003) (citing Fischer v . Hooper, 732 A.2d 396,
402 (N.H. 1999); see also, Restatement, Second, Torts § 905, Cmt.
on Clause (b) (“The principal element of damages in actions for
battery, assault or false imprisonment, . . . , is frequently the
disagreeable emotion experienced by the plaintiff.”);
Restatement, Second, Torts § 9 0 7 , Cmt. b . (“Nominal damages can
be awarded when the defendant has invaded an interest of the
plaintiff protected against nonharmful conduct of the sort
committed by the defendant and no harm has been proved.”).
The Court finds unpersuasive the Defendant’s argument that
Plaintiff’s claim for emotional distress damages should be found
precluded under Thorpe v . Department of Corrections, 575 A.2d 351
(N.H. 1990), because she has not identified an expert witness.
It is true that the court in Thorpe held that expert testimony is
required “in all negligence cases where emotional distress
damages are claimed.” Id. at 354. But while Defendant’s
24 argument appears to be correct on its face, it is only
deceptively s o . Plaintiff’s claim against the Defendant is based
on a negligence theory, but Plaintiff does not allege that her
injuries were “negligently caused.” Rather, Plaintiff seeks to
hold the Defendant directly liable for injuries that she suffered
as a result of Defendant’s employee’s intentionally tortious
conduct. The Court finds Thorpe distinguishable in that the
plaintiff in that case did not allege that he was subjected to
intentional wrongdoing. Since the Defendant’s motion for summary
judgment addresses a claim that was not pled in this action,
there is no basis for granting the Defendant summary judgment.
V. Conclusion
For the reasons set forth above, Defendant’s motion to
strike (document n o . 27) is denied, and Defendant’s motion for
summary judgment (document n o . 19) is denied.
SO ORDERED.
James R. Muirhead United States Magistrate Judge Date: January 2 8 , 2004
cc: John A . Houlihan, Esq. Charles P. Bauer, Esq. Katherine M . Strickland, Esq. Pietro J. Lynn, Esq.