Marquay v. Eno
139 N.H. 708, 662 A.2d 272 (1995)

  • Marquay and two other girls were students at Mascoma High School. They were sexually abused by several teachers, including Eno. The girls sued the school district for negligence for failure to protect them from an employee.
  • Because the Federal Trial Court had to apply New Hampshire law, they asked (aka certified) the New Hampshire Supreme Court to answer two questions:
    • Does a State law requiring persons who suspect a child is being abused shall report that abuse to the police, created a private right of action for the abused children to sue those who violated the State law?
    • Do all school district employees have a common law duty to protect students from abusive employees?
  • The New Hampshire Supreme Court found:
    • That the Statute had no express of implied legislative intent to establish civil liability. Therefore an abused person does not have the right to sue people just because a Statute required them to report the abuse.
      • The Court found that you can only sue for negligence under a Statute if you could do so under the common law. In this case, since you couldn’t sue someone under the common law for failing to report abuse (that’s nonfeasance), the Statute didn’t allow you to either.
    • That some employees owe a duty to the students and others do not.
      • Generally, there is no duty to care (nonfeasance). However, there can be a duty if a special relationship exists. In this case, it can be argued that there is a custodian – person in custody special relationship between the teachers and students.
        • See Restatement of Torts ¤314A.
      • Of course, the scope of duty is limited to what is reasonably foreseeable.
      • The duty to care falls only upon those school employees who had supervisory responsibility over students and thus have stepped into the role of parental proxy.
        • Just receiving a paycheck from the school district doesn’t mean you have a duty to care.
        • Scope of duty is limited only to those times when the school employee is acting as a parental proxy.
  • Basically, this case said that not reporting the abuse doesn’t make you liable, even if there is a Statute saying that you are required to report the abuse. In addition, while just working for the school doesn’t automatically mean you have a duty to take care of the students, under some conditions, some school employees have voluntarily taken on a duty to care when they are “acting like a parent,” and can be held liable if they were negligent in performing those duties.
  • Compare this case to Wakulich v. Mraz (255 Ill.Dec. 907 (2001)). In both cases, the Court had a Statute that basically said no liability exists, but they looked past that Statute and found a common-law basis to establish that there was a duty to care.