Marquay v. Eno

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



N.H. Rev. Stat. Ann. § 169-C:29 (1990), the child abuse reporting statute, does not support a private right of action for its violation because there is no express or implied legislative intent to create such civil liability.


A suit was filed by 3 female students against a school district, its officials, teachers, coaches, and employees for allegations of exploitation, harassment, assault, and sexual abuse. The district court sought certified state law questions with the Supreme Court of New Hampshire regarding N.H. Rev. Stat. Ann. § 169-C:29 (1990), which required the reporting of child abuse.


Does N.H. REV. STAT. ANN § 169-C:29 create a private right of action such that plaintiff students may recover against defendant teachers, coaches, superintendents, principals, secretaries, school districts and school administrative units based on their failure to report alleged incidents of sexual abuse and misconduct by defendant teachers/coaches if they knew, or if they had reason to know of such abuse and misconduct?




The court held that N.H. Rev. Stat. Ann. § 169-C:29 (1990), which required the reporting of child abuse, did not create a private right of action in favor of an abused child against those who violated the statute. Further, a violation of the reporting statute did not constitute negligence per se in an action based on inadequate supervision of a student. The court held that those in a supervisory position over students had a duty to reasonably supervise their students. There was also a duty not to hire or retain employees that the school district or officials knew or have should known had a propensity for sexually abusing students. In a negligent hiring or retention action, failure to report abuse in accordance with the statute could give rise to liability, provided the plaintiff showed that reporting would have prevented the subsequent abuse. Liability might exist for abuse after school hours or after graduation where, but for the hiring and retention of the abusing employee, there would have been no relationship between abuser and victim. The court declined to recognize any new constitutional torts because the female students had an adequate remedy at law.

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