Patterson v. Star Island Corp. CV-92-400-B 02/19/93 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Robert B. Patterson, et al.
_____ v. Civil No. 92-400-B
The Star Island Corporation, et al.
O R D E R
This personal injury action arose out of events that
occurred on August 6 , 1989, while plaintiffs were attending a
conference held on an island located off the coast of New
Hampshire which is owned and operated by defendant. The Star
Island Corporation. Various motions have been made pursuant to
Federal Rule of Civil Procedure 12(b) (6) to dismiss certain
claims and counterclaims.
FACTS
The following facts are stated in a light most favorable to
the plaintiffs.
The Star Island Corporation is a non-profit organization
which permits various groups to schedule conferences on its
island for a fee. Persons attending these conferences freguently stay overnight, and it is not unusual for them to bring their
children. The Star Island Corporation owns and operates the
living guarters, and it allows visitors to use its recreational
facilities and sporting eguipment. Complaint 55 12-16.
On the morning of August 6, 1989, defendant Robert Pletz,
age ten, while attending the conference with his parents, walked
to a ballfield on Star Island, picked up a wooden bat lying on
the ground, and began hitting softballs into the air. Id. 5 19.
Plaintiff Jordan Patterson, age five, was on the stairs of the
Oceanic House adjacent to the ballfield when he became
"attracted" to the field and wandered to where defendant Robert
Pletz was hitting the softballs. Id. 5 21. Moments later,
Jordan was struck in the head as Robert Pletz swung the bat to
hit a softball. Id. 5 22.
Plaintiff Robert Patterson, Jordan's father, was
"approximately twenty-five (25') feet away at the top of the
stairs of the Oceanic House leading to the ballfield" when the
incident occurred. Id. 5 23. Mr. Patterson "immediately heard
the gasp of others near him who were on the porch of the Oceanic
House," and he "guickly realized his son had been seriously
injured and went to his side where he observed the tragedy which
had befallen his son." Id. 55 24-25. Plaintiff Mildred
2 Patterson, Jordan's mother, was "approximately sixty (60') feet
away in the Arts and Crafts Room at the end of the porch of the
Oceanic House" when her son was injured. Id. 5 26. Like her
husband, Mrs. Patterson did not witness the event. Rather, she
"learned of the incident within five minutes of its occurrence
and immediately went to her son's side who was lying on the
ground of the ballfield" where she "observed that her son was
seriously injured." Id. 55 27-28.
DISCUSSION
Robert, Mildred, and Jordan Patterson brought suit against
Robert Pletz and his mother, Deborah Pletz, as well as The Star
Island Corporation and an unnamed employee, "John Doe." The
defendants, in response, filed counterclaims against the
Pattersons. The court is now asked to consider various motions
to dismiss. With respect to the complaint, the court must
determine (i) whether it states claims cognizable under New
Hampshire law for negligent infliction of emotional distress and
negligence by a landowner, and (11) whether the "John Doe"
defendant was properly served.1 When reviewing the
1Per the agreement of the parties, see document no. 25, Counts V and VI of the complaint alleging negligent supervision by Mrs. Pletz were dismissed. Thus, the court need not address
3 counterclaims, the court must decide whether the counterclaims
state claims for contribution or negligent conduct supporting a
reguest for attorney's fees.
I. STANDARD OF REVIEW
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) reguires the court to review the allegations
of the complaint in the light most favorable to plaintiff,
accepting all material allegations as true, with dismissal
granted only if no set of facts entitles plaintiff to relief.
See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Berniqer
v. Meadow Green-Wildcat Corp., 945 F.2d 4, 6 (1st Cir. 1991);
Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.
1989). A Rule 12(b)(6) motion may also be used to challenge the
sufficiency of a claim for relief set out in a counterclaim. See
North Carolina Nat. Bank v. Montilla, 600 F.2d 333, 334 (1st Cir.
1979) . When considering a motion to dismiss a counterclaim, the
court must similarly accept the truth of the allegations in the
counterclaim and give the counterclaim plaintiffs the benefit of
all reasonable inferences helpful to their case.
defendants' motion to dismiss these counts for failure to state a negligent supervision claim.
4 II. COMPLAINT
A. Negligent Infliction of Emotional Distress
Robert and Mildred Patterson filed claims for negligent
infliction of emotional distress against Deborah Pletz and Robert
Pletz. The Pletzes brought a partial motion to dismiss, which
included a reguest to dismiss all emotional distress claims
brought against them.2 The Pattersons consented to the dismissal
of Mrs. Patterson's claims for negligent infliction of emotional
distress (Counts VIII and XII). Thus, the court need only
determine whether Mr. Patterson's claims against the Pletzes for
negligent infliction of emotional distress (Counts VII and XI)
should be dismissed.
A bystander's cause of action for negligent infliction of
emotional distress reguires proof of both the causal negligence
of the defendant and the foreseeability of the alleged harm. See
Corso v. Merrill, 119 N.H. 647, 654 (1979) . This latter
reguirement demands (i) a close relationship between the
bystander and the victim, (ii) geographic proximity to the
2The Pattersons also each brought negligent infliction of emotional distress claims against The Star Island Corporation (Counts III and IV) and "John Doe" (Counts XV and XVI). The motion by The Star Island Corporation and "John Doe" to dismiss these claims is based on different legal theories and will be considered in Sections II B and C.
5 accident, and (iii) a close connection in time between the
negligent act and the resulting distress. Id. at 656-59. The
temporal component of foreseeability reguires that there be
direct emotional impact upon the bystanders through their
"contemporaneous sensory perception of the accident and immediate
observance of the accident victim . . . ." Id. at 658. Finally,
the resulting emotional distress must be accompanied by objective
physical injury. Id.
The New Hampshire Supreme Court in Corso allowed parents of
a daughter struck and killed by defendant's car to recover for
physical injuries caused by their direct emotional impact through
their contemporaneous perception of the event. Id. Mrs. Corso
was in her kitchen when she heard a "thud" and then, looking out
the window, saw her daughter lying seriously injured on the
street outside their home. Id. at 649. Mr. Corso, who was also
in the kitchen, neither witnessed nor heard the accident, but he
responded to his wife's scream and immediately saw his child in
the street. Id. The Court found that their allegations met the
criteria of foreseeability and thus could withstand a motion to
dismiss. See id. at 658.
In light of its holding in Corso, the Court subseguently
denied recovery to parents who viewed their child for the first
6 time following the accident in the hospital shortly after her
death. See Nutter v. Frisbe Mem. Hosp., 124 N.H. 791, 796
(1984). The Court declined to extend liability in that case
because to do so "would create a potential cause of action in
every parent who learned, by any reasonable means, of his or her
child's negligently inflicted death or injury, and as a result
suffered emotional injury . . . ." Id. The Court reaffirmed
that parents have "to be close enough to experience the accident
first hand . . . ." Id. at 7 95. Five years later, the Court
reiterated that the foreseeability doctrine prevents parents who
neither saw nor heard the accident from recovering. Wilder v.
City of Keene, 131 N.H. 599, 603-05 (1989) (parents who first saw
child in hospital one hour after accident found not to have met
foreseeability criteria of geographic and temporal proximity).
In accordance with Corso and its progeny, this court denies
the Pletz defendants' motion to dismiss Mr. Patterson's claim for
negligent infliction of emotional distress. The complaint
alleges that Mr. Patterson was in close geographic and temporal
proximity to the accident scene. While Mr. Patterson did not
witness the event, he allegedly was located twenty-five feet from
where his son was injured and, like the father in Corso, he
reacted to the noise of those around him and immediately
7 discovered his son's injury. Furthermore, in reading the
complaint in the light most favorable to plaintiff, the court is
not prepared to hold that Mr. Patterson, who now claims to suffer
from depression and anxiety, does not allege any physical
conseguences as a result of his immediate sensory perception.
B. "John Doe" Pleading
The Star Island Corporation seeks the dismissal of all
claims against "John Doe" due to insufficiency of process. The
Corporation argues further that there is no Federal Rule of Civil
Procedure or statutory provision permitting "John Doe" pleadings,
and any such rule would implicate serious due process concerns.
The court finds merit in the former argument.
While "John Doe" pleadings are not per se improper, see
Berniqer, 945 F.2d at 5, plaintiffs must still comply with the
rules governing service of process. In the instant case, the
120-day period to effect service of process under Rule 4(j) of
the Federal Rules of Civil Procedure has elapsed, and plaintiffs
have not sought to extend the period to complete service on "John
Doe." Plaintiffs have also failed to demonstrate good cause as
to why service was not completed within the period contemplated
by the rules. Accordingly, the court grants the motion to
dismiss "John Doe" without prejudice. The court will not make a determination at this time concerning whether any subsequent
amendment substituting additional parties would be deemed to
relate back to the complaint pursuant to Federal Rule of Civil
Procedure 15 (c) .
C. Negligent Supervision/Duty of Landowner
The Star Island Corporation also moves to dismiss all of the
claims brought against it on the ground that plaintiffs' entire
complaint is based on allegations of lack of supervision which,
given the facts of this case, is not cognizable under New
Hampshire law. Because the court finds that plaintiffs' claims
sufficiently allege that defendant breached its duty as owner and
occupier of land, the court denies defendants' motion to dismiss.
Current New Hampshire law holds that landowners owe a duty
of reasonable care to persons using their property. See
Ouellette v. Blanchard, 116 N.H. 552, 557 (1976). A breach of
that duty gives rise to a cause of action. See id. In the
instant case, the court, after construing the complaint in a
light most favorable to plaintiffs, cannot conclude that the
complaint fails to state a cause of action for negligence against
The Star Island Corporation. Accordingly, the court denies the
motion to dismiss these claims. Ill. COUNTERCLAIMS
A. Counterclaim by The Star Island Corporation and "John Doe"
The Star Island Corporation and "John Doe" have
counterclaimed for contribution against Robert and Mildred
Patterson, who now move for an order dismissing the counterclaim.
A right of contribution exists between persons who are
"jointly and severally liable upon the same indivisible claim, or
otherwise liable for the same injury . . . N.H. Rev. Stat.
Ann. §507:7-f (Supp. 1991). The Star Island Corporation, with
"John Doe," allege in their counterclaim that Robert and Mildred
Patterson are liable in contribution because they negligently
supervised their son and are thus joint tortfeasors.
Mr. and Mrs. Patterson rely on Towle v. Kiman, 134 N.H. 263
(1991) to support their motion to dismiss the counterclaim.
Without ruling on whether an injured third party may ever
maintain a claim for negligent parental supervision, the Court in
Towle affirmed the dismissal of a negligent parental supervision
complaint because the injured third party failed to allege
conduct by the parents which was "socially unreasonable." Id. at
265. Like the defendants in Towle, the Pattersons allege that
the counterclaim is defective because it fails to allege that
their conduct was socially unreasonable.
10 The Star Island Corporation and "John Doe" apparently accept
the Pattersons' contention that Towle requires an injured party
to prove more than simple negligence to establish a negligent
parental supervision claim. Nevertheless, defendants argue that
Towle does not govern their counterclaim. Instead, they contend
that their claim is controlled by several earlier New Hampshire
Supreme Court decisions which held that when parents of an
injured child sue a third party for negligence, the third party
may defend the suit by arguing that the parents should be barred
from recovery because of their simple negligence in failing to
supervise their child. See, e.g., Hoebee v. Howe, 98 N.H. 168,
173 (1953); Martineau v. Waldman, 93 N.H. 147, 149-50 (1944);
Cleveland v. Reasbv, 92 N.H. 518, 521 (1943); Humphreys v. Ash,
90 N.H. 223, 229 (1939). Defendants thus argue that their
counterclaim survives a motion to dismiss because they need only
allege simple negligence rather than socially unreasonable
conduct. Alternatively, defendants claim that even if the
counterclaim is governed by Towle, it survives because the
Pattersons' alleged conduct was socially unreasonable.
The court rejects defendants' first argument that the tort
of negligent parental supervision requires proof of socially
unreasonable conduct when the claim is made by an injured third
11 party, but that simple negligence will suffice to establish a
negligent parental supervision claim when such a claim is brought
by an injured child or a joint tortfeasor based upon injuries
suffered by the child. Although legitimate public policy
considerations might justify a ruling preventing a child or a
joint tortfeasor from ever suing a parent to recover for a
child's injuries, such public policy considerations were
addressed and disposed of by the New Hampshire Supreme Court when
it abandoned the doctrine of parental immunity. See, e.g.,
Briere v. Briere, 107 N.H. 432, 434-36 (1966); Bonte v. Bonte,
616 A.2d 464, 465 (N.H. 1992). Accordingly, the court cannot
conceive of a principled basis for subjecting a negligent
parental supervision claim of a child or a joint tortfeasor suing
on the child's behalf to a different legal standard than that
which governs an injured third party's claim for negligent
parental supervision. See, e.g., Duensinq v. Tripp, 596 F.Supp.
389, 392 (S.D. 111. 1984) (court declined to recognize a
contribution claim for negligent parental supervision in part
because Illinois law did not recognize a negligent parental
supervision claim by an injured third party in similar
circumstances). Because Towle is the New Hampshire Supreme
Court's most recent pronouncement on the tort of negligent
12 parental supervision, the court will apply Towle in considering
the motion to dismiss the counterclaim.
Defendants' argument that the counterclaim survives the
Pattersons' motion to dismiss because it meets the threshold test
established in Towle presents a more difficult issue. The
counterclaim alleges only that the Pattersons had a duty to
supervise their child, that they failed to fulfill that duty and
that, as a result, their child was injured. Although the
counterclaim provides little factual detail to support its
conclusory assertions, such detail is not reguired so long as it
contains "a generalized statement of facts from which the
defendant will be able to frame a responsive pleading." Garita
Hotel Ltd. v. Ponce Federal Bank, 958 F.2d 15, 17 (1st Cir. 1992)
(guoting 5A C. Wright & A. Miller, Federal Practice and Procedure
§ 1357 (1990)). Moreover, a Rule 12(b)(6) dismissal of a
negligence claim is usually inappropriate. 2A James W. Moore, et
al., Moore's Federal Practice 5 12.07 [2.-5], at 12-66 n.ll (2d
ed. 1992) (citing Banco Continental v. Curtiss Na t '1 Park, 406
F.2d 510 (5th Cir. 1969)). Thus, a court should not deny
defendants an opportunity to develop a record to support such a
counterclaim unless the facts alleged in that counterclaim
demonstrate that defendants cannot prevail under any viable
13 theory. In the instant case, the court is not prepared to reach
such a conclusion at this time. Accordingly, the court denies
the motion to dismiss the counterclaim brought by The Star Island
Corporation and "John Doe."
B. Counterclaim by Robert and Deborah Pletz
In their answer to the complaint, Robert and Deborah Pletz
brought a counterclaim against plaintiffs for legal fees incurred
as a result of having to defend this suit. Plaintiffs filed a
motion to dismiss the counterclaim for failing to (i) state a
claim on which relief could be granted and (ii) allege damages on
which recovery could be permitted. The court grants plaintiffs'
motion.
Attorney's fees may be proper and sufficient damages in
cases where defendants assert a tort of malicious prosecution or
a civil action for abuse of process. See 8 Richard B. McNamara,
New Hampshire Practice: Personal Injury Tort and Insurance
Practice §§ 38-40 (1988). Alternatively, persons may recover
attorney's fees in federal court under certain circumstances
pursuant to Rule 11 of the Federal Rules of Civil Procedure.3 In
the present case, defendants have not brought a claim for
3Keenan v. Fearon, 130 N.H. 494, 502 (1988), relied on by the Pletzes, is the state law analogue to Rule 11. It does not establish a distinct cause of action cognizable in federal court.
14 contribution. Nor have they claimed a right to recover
attorney's fees for malicious prosecution or abuse of process.
Finally, they are not seeking attorney's fees for a violation of
Rule 11. Instead, they appear to claim that (i) their liability
should be negated because of plaintiffs' conduct, and (ii) they
have suffered damages in the form of attorney's fees by having to
respond to the complaint. These claims are not cognizable under
New Hampshire law as distinct causes of action. Accordingly, the
court grants plaintiffs' motion to dismiss the Pletzes'
counterclaim.
CONCLUSION
By agreement of the parties (see document no. 25), Counts V,
VI, VIII, and XII of the complaint are dismissed. The court
denies the Pletzes' motion to dismiss Mr. Patterson's claim for
negligent infliction of emotional distress (document no. 7) and
The Star Island's motion to dismiss the entire complaint against
them (document no. 19). The court grants the reguest to dismiss
the "John Doe" defendant for failing to make service pursuant to
Fed. R. Civ. P. 4(j) within the time allowed by that rule
(document no. 19). Finally, the court grants the Pattersons'
motion to dismiss the counterclaim brought by the Pletzes
15 (document no. 14) but denies their motion to dismiss the
counterclaim brought by The Star Island Corporation and "John
Doe" (document no. 15).
SO ORDERED.
Paul Barbadoro United States District Judge
February 19, 1993
cc: Debra Weiss Ford, Esq. Corey M. Belobrow, Esq. W. Michael Dunn, Esq.