McKenna v. American Institute, et al. CV-94-671-B 11/03/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Marsha A. McKenna and James F. McKenna
_____ v. Civil No. 94-671-B
American Institute for Foreign Study Scholarship Foundation, et al.
O R D E R
Plaintiffs Marsha McKenna and her son James McKenna ("Jimmy
McKenna") claim that an au pair supplied by defendants sexually
assaulted Jimmy McKenna. Both plaintiffs bring claims of
negligence, breach of warranty, breach of contract, negligent
infliction of emotional distress, and violation of New
Hampshire's Consumer Protection Act. Mrs. McKenna brings claims
of misrepresentation and defamation against defendants, and Jimmy
McKenna claims that defendants were strictly and/or vicariously
liable for the assault. Defendants move to dismiss both
plaintiffs' negligence, breach of warranty, negligent infliction
of emotional distress, and Consumer Protection Act claims, and
Jimmy McKenna's strict and/or vicarious liability claim. For the
reasons that follow, I grant defendants' motion to dismiss both
plaintiffs' Consumer Protection Act claims and Mrs. McKenna's negligence and negligent infliction of emotional distress claims,
I grant in part and deny in part defendants' motion to dismiss
both plaintiffs' breach of warranty claims and Jimmy McKenna's
strict and/or vicarious liability claims, and I deny defendants'
motion to dismiss Jimmy McKenna's claims of negligence and
negligent infliction of emotional distress.
I. BACKGROUND
Plaintiffs allege the following facts:
For a fee, defendants provide families in the United States
with young European adults (called "au pairs") who will care for
children and perform other domestic chores in return for room and
board and pocket money. Sometime in the fall of 1992, defendants
sent plaintiff Marsha McKenna a brochure explaining their
business and a "Host Family Application." She informed
defendants that she needed an au pair to help her care for her
son, plaintiff Jimmy McKenna. After paying a $200 application
fee, Marsha McKenna signed a "Host Family Agreement," which
incorporates the brochure by reference, and paid defendants'
$3,450.00 fee.
Defendants' brochure states, among other things, that all au
pairs will be "carefully selected," "screened," and "of good
2 character." Furthermore, defendants' brochure states that they
will provide au pairs with "an intensive four-day orientation and
training program." Defendants sent Marsha McKenna information
about a Danish man named Mads Runge Lilholm, whom defendants had
approved for placement with the McKennas. The "Interview Report"
which defendants sent Marsha McKenna states: "Mads is a
wonderful young man with a love of children . . . . He is open
and kind and you can't help liking him. He will be a wonderful
au pair."
Based on these and other representations defendants made
about Lilholm, Marsha McKenna agreed to accept Lilholm as an au
pair. She picked him up at Logan Airport on December 11, 1992.
Defendants did not provide Lilholm with any orientation or
training. On January 3, 1993, Marsha McKenna left Lilholm alone
with Jimmy McKenna at the family's condominium at the Sunday
River Ski resort in Bethel, Maine. Lilholm wrestled Jimmy to the
ground, pulled down his pants to expose his genitals, and, using
a camera, took pictures of Jimmy's genitals or pretended to do
so. Lilholm told Jimmy that he "would be in a lot of trouble" if
he told his parents what Lilholm had done.
The next day, Jimmy went skiing with his mother and seemed
emotionally distraught. The following Saturday, Jimmy told his
3 father, James M. McKenna, about the incident. Mr. McKenna
decided to consult a pediatrician before alarming Mrs. McKenna.
On Wednesday, January 13, 1994, Mrs. McKenna again left Jimmy
alone at the condominium with Lilholm. En route to Boston, she
learned of Lilholm's behavior in a telephone conversation with
Mr. McKenna. She called the Bethel police department and asked
them to send a police officer to the condominium to protect Jimmy
until she arrived. She and Mr. McKenna drove to the condominium
in separate cars. Shortly after the they arrived, the Bethel
police removed Lilholm from the condominium. Although Lilholm
did not admit to actually wrestling Jimmy to the ground and
photographing or pretending to photograph his genitals, he
admitted that, ostensibly to discipline Jimmy, he had threatened
to do so.
When defendants confronted Lilholm, he claimed that Mrs.
McKenna concocted the story to punish Lilholm for rebuffing her
sexual advances. Without investigating, defendants repeated this
version to another host family in an attempt to convince them to
accept Lilholm.
Plaintiffs allege that Lilholm caused Jimmy and Mrs. McKenna
severe emotional distress, that Jimmy now freguently wets his
bed, has nightmares about Lilholm and is obsessed with his own
4 physical safety. Plaintiffs further allege that Jimmy has seen a
therapist and that some of Jimmy's emotional damage may be
permanent.
On December 30, 1994, plaintiffs filed their Complaint. In
Counts I-IV, plaintiffs claim that defendants were negligent in
supplying them with a pedophile as an au pair. In Counts V-VIII,
plaintiffs claim that defendants breached the warranties
defendants gave them and on which they relied in accepting
Lilholm as their au pair. In Counts IX-XII, plaintiffs claim
defendants breached their contract. In Counts XIII-XVI,
plaintiffs claim defendants negligently caused them emotional
distress. In Counts XVII-XVIII, Mrs. McKenna claims that
defendants misrepresented Lilholm's character and their selection
process. In Counts XIX-XX, Mrs. McKenna sues defendants for
defamation. In Counts XXI-XXII, Jimmy McKenna claims that
defendants are strictly or vicariously liable for Lilholm's
actions. In Counts XXIII-XVI, plaintiffs claim defendants
violated New Hampshire's Consumer Protection Act.
In their Partial Motion to Dismiss, defendants moved to
dismiss all counts except for IX-XII (breach of contract), XVII-
XVIII (misrepresentation), and XIX-XX (defamation), presumably
5 for failure to state a claim upon which relief could be granted.
Fed. R. Civ. Proc. 12 (b) (6) .
I I . STANDARD OF REVIEW
When considering a motion to dismiss a complaint, I accept
the well-pleaded factual allegations in the complaint as true and
then determine whether the allegations are sufficient, under any
theory, to state a claim for the relief sought. Armstrong v.
Jefferson Smurfit Corp., 30 F.3d 11, 12 (1stCir. 1994). Neither
bald assertions nor legal conclusions enjoy the presumption of
truth. United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir.
1992). I will, however, draw all reasonable inferences in
plaintiff's favor. Rockwell v. Cape Cod Hosp., 26 F.3d 254, 255
(1st Cir. 1994) .
III. CHOICE OF LAW
I must use New Hampshire's choice-of-law rules when, as in
this case, jurisdiction is based on diversity of citizenship.
See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496
(1941); American Title Insurance Co. v. East West Financial
Corp., 959 F.2d 345, 348 (1st Cir. 1992). Plaintiffs' claims
6 sound in both contract and tort. In contract actions, in the
absence of an express agreement by the parties. New Hampshire
applies the "the law of the State with the most significant
relationship to the contract." Glowski v. Allstate Insurance
C o ., 134 N.H. 196, 197 (1991); Consolidated Mutual Insurance Co.
v. Radio Foods Corp., 108 N.H. 494, 496-97 (1968). In tort
actions, the New Hampshire Supreme Court applies the flexible
"Leflar" test, examining five main choice influencing factors to
determine which state's law applies.1 Keeton v. Hustler
Magazine, Inc., 131 N.H. 6, 14 (1988).
I find that New Hampshire law is clearly the correct law to
apply to both plaintiffs' contract and tort claims. Most of the
significant events that created the alleged contract between
plaintiff Marsha McKenna and defendants are alleged to have taken
place in New Hampshire. Plaintiffs allege that Mrs. McKenna read
1 These factors are: 1) the predictability of results; 2) the maintenance of reasonable orderliness and good relationships among the States in the federal system; 3) simplification of the judicial task 4) advancement of the governmental interest of the forum; 5) the court's preference for what it regards as the sounder rule of law. Id.
7 defendants' brochure in New Hampshire, filled out the "Host
Family Application" in New Hampshire, and signed the "Host Family
Agreement" in New Hampshire. Furthermore, because the McKennas
reside in New Hampshire, the contract was to be performed
primarily in New Hampshire. Therefore, New Hampshire is the
state with the most significant relationship to the contract.
I must also rely on New Hampshire law to decide plaintiffs'
tort claims. Plaintiffs argue that the alleged tortious acts
physically occurred in a variety of jurisdictions: defendants'
London office failed to screen Lilholm; defendants may have
decided to place Lilholm with the McKennas at their headguarters
in Connecticut; defendants' regional manager, based in
Massachusetts, failed to supervise Lilholm; Mrs. McKenna picked
up Lilholm at Logan Airport in Massachusetts; and Lilholm
sexually molested Jimmy McKenna in Maine. However, the parties
agree that Lilholm was hired to work for Mrs. McKenna primarily
in New Hampshire, and that both plaintiffs are domiciled here.
To apply variously the law of England, Connecticut, New
Hampshire, and Maine depending only on where physical acts
chanced to have happened would complicate my task enormously and
lead to unpredictable, perhaps contradictory, results without
furthering any of the aims of the Leflar choice-of-law test. Therefore, I will decide plaintiff's tort claims based on the law
of New Hampshire.
IV. DISCUSSION
A. Counts I-II, XIII-XIV, Marsha McKenna, Negligence and Negligent Infliction of Emotional Distress
In Counts I-II and XIII-XIV, Marsha McKenna essentially
requests compensation for the emotional distress defendants
caused her by negligently selecting an alleged pedophile to care
for her son. In Corso v. Merrill, 119 N.H. 647 (1979), the New
Hampshire Supreme Court held that to state a claim under this
theory, in addition to alleging causation, bystanders such as
Mrs. McKenna must allege that the harm they suffered was
foreseeable. Id. at 656. Bystanders' emotional distress is
"foreseeable" if (1) they had a close relationship with the
victim, (2) they were near the victim when s/he was injured, and
(3) they perceived the incident when it happened and saw the
victim immediately afterwards. Id. In addition, bystanders'
must allege that their emotional injury was manifest in objective
physical symptoms. Id.; Thorpe v. State Dept, of Correections,
133 N.H. 299, 303-05 (1990).
9 Mrs. McKenna does not satisfy the requirements of geographic
and temporal proximity announced in Corso. She alleges that she
was not at the condominium when Lilholm molested her son, and
that she did not learn of the assault until nine days afterward.
In addition, she fails to allege that she suffered any objective
physical harm from emotional distress caused by defendants'
negligence.2
Plaintiffs attempt to distinguish this case from Corso and
its progeny by pointing to Counts I-IV, in which they state that
defendants directly owed Mrs. McKenna a duty of care. They claim
that this allegation transforms Mrs. McKenna from a bystander
into a direct victim of defendants' negligence. I need not
accept such a bald legal conclusion as true. AVX Corp., 962 F.2d
at 115. Furthermore, even if plaintiffs' Complaint sufficiently
alleges that defendants directly owed Marsha McKenna a duty of
2Plaintiffs submitted an affidavit with their objection to defendants' motion to dismiss in which Mrs. McKenna, a diabetic, alleges that, beginning shortly after she learned that Lilholm had molested her son and continuing for two years, her physicians could not keep her blood sugar levels under control. She further alleges that she believes that the escalation of her blood sugar level was related to the distress caused by defendants' negligence. Irrespective of the relevance of this affidavit, I may not consider evidence extraneous to the allegations in plaintiffs complaint to decide a motion to dismiss for failure to state a claim. See Fed. R. Civ. P. 12(b).
10 care, the injury she alleges is the same as the injury alleged by
the parents in Corso: emotional distress due to the injury
defendants negligently inflicted on her son. I decline to
eviscerate Corso based solely on an abstract distinction.
Plaintiffs claim that hunt v. Philbrick, 59 N.H. 59 (1879), a
one-paragraph opinion written 116 years ago, provides an
exception to the reguirements of Corso for parents whose children
are sexually molested. In hunt, the trial court instructed the
jury that if it found that defendant had fraudulently seduced
plaintiff's daughter by promising her and plaintiff that he would
marry her, and that defendant had impregnated plaintiff's
daughter, it could compensate plaintiff for the "injury done to
his wounded and mortified feelings." Id. at 60. The New
Hampshire Supreme Court merely upheld the jury instructions,
stating only that "General damages are such as may be presumed to
result necessarily from the wrong complained of." Id.
_____ Given that the New Hampshire Supreme Court has cited hunt
only twice in this century, and even then only in passing, it is
doubtful that hunt retains any value as precedent.3 Even if it
3In Thorpe, after citing a string of cases in support of the objective physical manifestation reguirement, the court cites hunt in opposition. 133 N.H. at 305. In the next sentence, it
11 does, the court distinguishes it from cases like the present one
because hunt involved an intentional tort, not mere negligence.
See Siciliano v. Capitol City Shows, 124 N.H. 719, 726 (1984).
In Siciliano, one child was seriously injured and another was
killed when the defendants' amusement park ride malfunctioned.
Id. at 723. The court refused to recognize a cause of action for
loss of society of a negligently injured or killed child because
doing so would abrogate the "well-defined limiting factors" on
liability established in Corso. Id. at 727-28. The court
specifically distinguished hunt and several other cases because
they do not deal with negligence, but instead concern intentional
interference with parental custody, which exposes the tortfeasor
to greater liability. See id.
Plaintiffs do not allege that defendants committed any
intentional torts. I see no reason to extrapolate from hunt to
extend liability beyond the limits established in Corso.
Therefore, I dismiss plaintiff Marsha McKenna's claims of
negligence and negligent infliction of emotional distress.
holds that "expert testimony is reguired to prove that the plaintiff experienced physical symptoms from the alleged emotional distress." Id. This indicates that the court considered, and rejected, extending the holding of hunt beyond its facts.
12 B. Counts III-IV, XV-XVI, James McKenna, Negligence and Negligent Infliction of Emotional Distress.
Defendants argue that I must dismiss Jimmy McKenna's
negligence claims for two reasons. First, defendants argue that
they owed Jimmy McKenna no duty of care independent of the
contractual duties they may have owed him as a possible third-
party beneficiary to the contract with his mother. Regardless of
whether Jimmy McKenna was a third-party beneficiary, I find that
plaintiffs have sufficiently alleged that defendants owed him a
duty of care which they breached.
In their motion to dismiss, defendants correctly point out
that New Hampshire does not recognize a cause of action for
negligent failure to perform a contract. PR's Landscaping, Inc.
v. New England Tel, and Tel. Co., 128 N.H. 753, 757 (1986);
Lawton v. Great Southwest Fire Ins. Co., 118 N.H. 607, 613
(1978); Barrett v. New England Tel, and Tel. Co., 80 N.H. 354,
360 (1922); DCPB, Inc. v. City of Lebanon, 957 F.2d 913, 915
(1992). In other words, a plaintiff may not recover in tort for
breach of a contractual duty. For example, in Lawton, the
defendant insurance company refused to reimburse the plaintiff
according to the terms of the policy. 118 N.H. at 609.
Plaintiff sued defendant in tort for recklessly and/or
13 negligently failing to carry out the terms of the policy. Id.
The New Hampshire Supreme Court held that plaintiff failed to
state a claim because he failed to allege "a breach of duty owed
by the defendant to the plaintiff independent of the contract."
See id. at 613.
The same transactions or relations which create a
contractual duty, however, may also create a separate duty of
care which may be the basis of a cause of action in tort. See J .
Dunn & Sons, Inc. v. Paragon Homes of New England, Inc., 110 N.H.
215, 217-218 (1970); Busick v. Homeowners Loan Corp., 91 N.H.
257, 258 (1941); Dustin v. Curtis, 74 N.H. 266, 269 (1907). For
example, in Dunn, plaintiffs sued defendant, a supplier of pre
fabricated homes, in tort, claiming that in breaching its
contract with them, defendant caused "irreparable harm to their
reputations and business prospects . . . loss of profits,
embarrassment, and mental anguish."4 110 N.H. at 216. The court
explained:
The fact that the duty alleged to have been violated is related to obligations growing out of or coincidental with a contract will not prevent the action from being
Presumably, the plaintiffs sued in tort to avoid an arbitration clause favorable to the defendant. See id. at 216- 17 .
14 one in tort. The purpose of the contractual duty is to secure the receipt of the thing bargained for, while the tort duty which results from the contract relation of the parties is that a party must refrain from conducting itself so as to cause a particular harm to the other party.
Id. at 218.
_____ It then held that the plaintiffs had successfully stated
claims in tort against defendant for intentional and negligent
interference with their business. Id.
_____ More specifically, in New Hampshire, employers have a non
contractual duty to hire, train, and supervise their employees so
that they will not cause unreasonable harm in the course of their
employment. See Cutter v. Town of Farmington, 126 N.H. 836, 840-
841 (1985). Employers are directly liable, not liable via
respondeat superior, to parties injured by their negligently
hired, trained, or supervised employees. Id. For example, in
Palmer v. Keene Forestry Association, 80 N.H. 68 (1922),
plaintiff employed defendant to cut some trees in his field. Id.
at 68. While performing the work, one of defendant's employees
dropped a lit match into dry grass, causing a fire which
destroyed plaintiff's property. Id. The court held that if
defendant knew or should have known that its employees had a
propensity to smoke while working and would work in plaintiff's
15 dry field, defendant was directly liable to plaintiff for the
damage caused by the fire. Id. at 69-70.
Construing plaintiffs' factual allegations in the light most
favorable to them, I find that plaintiffs have alleged that
defendants owed Jimmy McKenna a non-contractual duty to select,
train, and supervise the au pair defendants placed with the
McKennas to avoid subjecting Jimmy McKenna to an alleged
pedophile.
Second, defendants argue that paragraph four, page two of
the Host Family Agreement (signed by Marsha McKenna) releases
them from liability for anything less than gross or wilful
negligence. I reject defendants' arguments. Neither party has
addressed the guestion of whether parents may release their
children's right to bring tort claims under the circumstances
presented in this case. I am unwilling to decide this crucial
issue without some argument from the opposing parties.
Alternatively, I deny defendants' motion to dismiss because
they have failed to satisfy the reguirements necessary for me to
execute any release from liability. To recognize an exculpatory
clause under New Hampshire law, I must find that defendants have
shown that:
16 1) the clause does not contravene public policy due to a special relationship between the parties or a disparity in bargaining power;
2) the plaintiff understood the significance of the exculpatory provision or a reasonable person would have understood the significance of the exculpatory provision; and
3) the parties contemplated the plaintiff's claims when they executed their agreement.
See Wright v. Loon Mountain Recreation Corp., 663 A.2d 1340,
1341-42 (1995); Barnes v. N.H. Karting Assoc., 128 N.H. 102, 106-
07 (1986).
Without deciding the meaning of the paragraph which
defendants cite, I find that defendants have not shown that
plaintiffs' allegations, read in the light most favorable to
plaintiffs, satisfy the elements necessary for me to execute any
exculpatory provision.
C. Counts V-VIII - Breach of Warranty
Plaintiffs allege that defendants breached both implied and
express warranties. New Hampshire law does not recognize a cause
of action for breach of implied warranty in purely service
contracts. See Bolduc v. Herbert Schneider Corp., 117 N.H. 566,
569 (1977); Brescia v. Great Road Realty Trust, 117 N.H. 154, 157
(1977) (no cause of action for breach of implied warranty beyond
17 that provided for sales of goods by N.H. Rev. Stat. Ann. §§ 382-
A:2-314-15). Therefore, I dismiss Counts V-VIII to the extent
that they rely on a breach of implied warranty theory.
Defendants argue that I should dismiss plaintiffs' breach of
express warranty claims for two reasons. First, defendants
contend that plaintiffs failed to allege that defendants gave
them any express warranties. This is simply incorrect. In
paragraphs 13-15 of their complaint, plaintiffs allege that
defendants expressly warranted, among other things, that Lilholm
was "of good character," and that he was "a wonderful young man
with a love of children [who would be] a wonderful au pair."
Second, defendants argue that I should dismiss the breach of
warranty claim because it is identical to plaintiffs' breach of
contract claim. Read in the light most favorable to plaintiff, I
find that plaintiffs' breach of warranty and breach of contract
claims, though similar, are not identical. The breach of
warranty claim may be construed as a claim for defendants'
failure to provide an au pair of good character, as promised.
The breach of contract claim may be construed as a claim for
defendants' failure to screen Lilholm, train Lilholm, and to
supervise Lilholm adeguately. Regarding plaintiffs' breach of
express warranty theory, defendants motion to dismiss Counts V-
18 VIII is denied.
D. Counts XXI-XXII - Strict or Vicarious Liability for Battery of Jimmy McKenna
In Counts XXI-XXII, plaintiffs allege that defendants are
strictly or vicariously liable to Jimmy McKenna for Lilholm's
battery because they were engaged in an inherently dangerous
activity. Generally, under New Hampshire law, a party who
undertakes an inherently dangerous activity has a non-delegable
duty to protect third parties from injury resulting from that
activity. Elliott v. Public Serv. Co. of New Hampshire, 128 N.H.
676, 679 (1986). The activity must be dangerous in itself, not
merely made dangerous by the negligent performance of the work.
Arthur v. Holy Rosary Credit Union, 656 A.2d 830, 833; Elliott,
128 N.H. at 679; Thomas v. Harrington, 72 N.H. 45, 46-47 (1903).
Construction work, for example, is generally not considered to be
inherently dangerous by the New Hampshire Supreme Court. Arthur,
656 A.2d at 833. There is nothing inherently dangerous about
selecting au pairs and placing them in charge of small children.
As plaintiffs state in their brief, the danger was created by the
negligent performance of the work. Therefore, regarding strict
liability, I grant defendants' motion to dismiss Counts XXI-XXII
19 for failure to state a claim for strict liability.
Alternatively, plaintiffs claim that defendants are
vicariously liable for Lilholm's battery under three theories.
First, plaintiffs claim that Lilholm was defendants' employee for
the purposes of respondeat superior. Under the doctrine of
respondeat superior, an employer may be held liable for the torts
of an employee which the employee committed within the scope of
employment. Trahan-Laroche v. Lockheed Sanders, Inc., 657 A.2d
417, 419 (1995). Defendants argue that I must dismiss
plaintiffs' claim of respondeat superior because plaintiffs do
not explicitly allege that Lilholm was defendants' employee.
"Employer" and "employee" are terms of art under the doctrine of
respondeat superior; Lilholm need not have been paid by
defendants in order to be deemed their employee to establish
liability. See Boissonault v. Bristol Federated Church, 138 N.H.
476, 478 (1994) (volunteers may be employees for purposes of
respondeat superior). While control is a significant factor,
defendants need not have controlled the exact "manner and means
of the performance of the work in order for the doctrine to come
into play." Hunter v. R.G. Watkins & Son, Inc., 110 N.H. 243,
246 (1970). To determine whether a person is an "employee" for
the purposes of respondeat superior, the Supreme Court of New
20 Hampshire examines the totality of the circumstances, asking
"'whether on all the facts presented the community would consider
the person an employee.1" Id., quoting Hunter v. R.G. Watkins &
Son. Inc.. 110 N.H. 243, 246 (1970).
Read in the light most favorable to plaintiffs, I find that
their complaint and attached exhibits contain alleged facts
sufficient to state a claim of respondeat superior under the test
announced in Hunter. Plaintiffs allege that defendants selected
Lilholm, matched him with their family, were responsible for
training him, and had a community counselor who would supervise
and aid Lilholm throughout the year. More importantly,
plaintiffs allege that defendants set the terms of Lilholm1s
employment, including what Lilholm1s duties were, how many hours
Lilholm worked per week, how much Lilholm would be paid, how
often Lilholm would be paid, and how much vacation Lilholm would
have. If defendants decided that plaintiffs were not abiding by
defendants' rules, defendants could remove Lilholm from their
home without paying a refund. Plaintiffs did not have a
reciprocal power to fire Lilholm if he was unsatisfactory.
Rather, they were supposed to follow procedures established and
governed by defendants. These allegations, read in the light
most favorable to plaintiffs, sufficiently show that Lilholm was
21 defendants' employee for the purposes of respondeat superior
under New Hampshire's "totality of the circumstances" test.
Accordingly, I deny defendants' motion to dismiss plaintiffs'
claim of vicarious liability insofar as it is based on a
respondeat superior theory.
Second, plaintiffs also assert that defendants are
vicariously liable for Lilholm's battery because Lilholm and
defendants were engaged in the "joint enterprise" of placing
Lilholm in charge of children. To determine whether persons are
engaged in a joint enterprise or joint venture. New Hampshire
courts examine whether they have "mutual control" over the
venture. See Lefebvre v. Waldstein, 101 N.H. 451, 455 (1958);
Glaser v. Medford-Marlboro Knit Gaiter Co., 93 N.H. 95, 99-101
(1944). As stated above, defendants, not Lilholm or plaintiffs,
had control over most of the important aspects of Lilholm's
employment. Therefore, I grant defendants' motion to dismiss
plaintiffs claim of vicarious liability based on the theory that
Lilholm and defendants were engaged in a joint enterprise.
Third, plaintiffs argue that defendants are vicariously
liable to Jimmy McKenna because they created a situation in which
Lilholm could assault him. In the only case which plaintiffs
cite in support of this theory, the court explains that it is not
22 a theory of vicarious liability, but of direct liability for
creating a dangerous situation. See Mullov v . U.S., 884 F.Supp.
622, 632 (1995). I have already addressed this theory in part B
of this order. To the extent that plaintiffs rely on it to
support vicarious liability, I dismiss it.
E. Counts XXIII-XVI - Consumer Protection Act
Plaintiffs claims under the Consumer Protection Act, N.H.
Rev. Stat. Ann. § 358-A:3 (1993) ("Act")a are barred because they
failed to file their complaint within two years after defendants
made the alleged misrepresentations. Section 358-A:3 states, in
pertinent part: "The following transactions shall be exempt from
the provisions of this chapter: IV-a. Transactions entered into
more than 2 years prior to the complaint . . . "
The two-year time-limit within which plaintiffs must file a
complaint in order to state a claim under the Act begins to run
when the allegedly "unfair or deceptive" business practice
prohibited by the Act is committed, not when the deception
actually causes harm or when plaintiffs know or should know that
they were deceived. Catucci v. Lewis, 1995 WL 574232 *1 (N.H.);
Zee-Bar, Inc.-N.H. v. Kaplan, 792 F.Supp. 895, 901-02 (D.N.H.
1992); City of Manchester v. National Gypsum Co., 637 F.Supp.
23 646, 655-56 (D.R.I. 1986); see, e.g., Gautschi v. Auto-Bodv
Discount Center, Inc., 660 A.2d 1076, 1078 (1995) (statute tolled
when misconduct occurred, not when plaintiff learned of
misconduct).
Plaintiffs do not allege that defendants made any
misrepresentations in violation of the Consumer Protection Act
after Marsha McKenna picked up Lilholm at Logan Airport on
December 11, 1992. Plaintiffs filed their Complaint on December
30, 1994. Therefore, their claim under the Act is barred because
they failed to bring it within the two-year deadline, and I must
grant defendants' motion to dismiss.
V. CONCLUSION
In summary, I dispose of defendants' partial motion to
dismiss (document no. 6) as follows:
Counts I-II Granted.
Counts III-IV Denied.
Counts V-VIII Granted in part and denied in part
Counts XIII-XIV Granted.
Counts XV-XVI Denied.
Counts XXI-XXII Granted in part and denied in part
Counts XXIII-XVI Granted.
24 SO ORDERED.
Paul Barbadoro United States District Judge
November 3, 1995
cc: Robert Shea, Esq. Thomas Kehr, Esq. James Wheat, Esq. Peter DeGelleke, Esq.