Bryant v . Noether, et a l . CV-00-191-M 02/16/01
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Richard Bryant,
Plaintiff
v. Civil N o . 00-191-M
Opinion N o . 2001 DNH 036
Lauren Noether, in her
individual and official capacity,
Sheriff Stephen Hodges, in his
individual and official capacity,
Deputy Richard Batstone, in his
individual and official capacity,
Chief Michael McCarty, in his
individual and official capacity,
Sgt. Karen McCarty, in her
individual and official capacity,
Sgt. Brian Loanes, in his
individual and official capacity,
and New Beginnings,
Defendants
O R D E R
Richard Bryant brings suit under 42 U.S.C. § 1983 for
violations of his federal rights, and also asserts various state
law claims, against state actors involved in his arrest and
prosecution for domestic assault. At issue here is plaintiff’s
negligent hiring, training, and supervision claim against New
Beginnings, a women’s crisis center. This order resolves New
Beginnings’ motion to dismiss for failure to state a claim
(document n o . 5 ) . See Fed. R. Civ. P. 12(b)(6).
Standard of Review
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is one of
limited inquiry, focusing not on "whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims." Scheuer v . Rhodes, 416 U.S.
232, 236 (1974). In considering a motion to dismiss, "the
material facts alleged in the complaint are to be construed in
the light most favorable to the plaintiff and taken as admitted,
with dismissal to be ordered only if the plaintiff is not
entitled to relief under any set of facts he could prove."
Chasan v . Village District of Eastman,
572 F.Supp. 5 7 8 , 579
(D.N.H. 1983), aff'd without opinion,
745 F.2d 43 (1st Cir. 1984)
(citations omitted).
Although pleading requirements are minimal, they “are not
tantamount to nonexistent requirements.” Cooperman v .
Individual, Inc., 171 F.3d 4 3 , 47 (1st Cir. 1999) (citing Gooley
v . Mobil Oil Corp.,
851 F.2d 513, 514 (1st Cir. 1988)) (internal
quotation marks omitted). At the least, the complaint must set
forth facts as to each material element of the cause of action.
Id.
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Relevant Background
Plaintiff is a Belmont, New Hampshire, police officer. His
wife is employed as a corrections officer by the Belknap County
Department of Corrections. On April 1 7 , 1997, plaintiff and his
wife argued in their home, during which some physical contact
occurred. He wife subsequently obtained a domestic violence
protective order (DVPO), with the help of a counselor from New
Beginnings.
Based on the allegations contained in the petition for the
DVPO, sworn to by his wife, plaintiff was arrested and charged
with assault. He was reassigned to administrative duty by the
police department, and was concerned that he might lose his job.
The charges were later reduced, and plaintiff accepted an offer
of compromise from the county attorney under which the charges
were nol prossed (avoiding a criminal conviction) on condition
that he attend marriage counseling.
Discussion
Plaintiff claims in this case that New Beginnings breached a
duty owed to him under New Hampshire common law, by negligently
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hiring, training, and/or supervising the staff member who
accompanied plaintiff’s wife to Laconia District Court and
assisted her in completing the domestic violence petition. He
further alleges that he suffered damages, because his arrest and
prosecution were based on the information contained in the DVPO.
The tort of negligent hiring, training, and supervision,
recognized in New Hampshire through adoption of the Restatement
(Second) of Agency § 213, imposes direct liability on an employer
for actions of an employee, regardless of the employee’s
liability. See Cutter v . Town of Farmington, 126 N.H. 836, 840
(1985). It can be based on employer conduct such as giving
misleading, incomplete, or otherwise improper instructions to
employees, or using an employee known to be dangerous. See
Restatement (Second) of Agency § 213 cmts. c and d. Liability
“exists only if all the requirements for an action of tort for
negligence exist.” Restatement (Second) of Agency § 213 cmt. a.
But, this cause of action differs from respondeat superior, a
claim not asserted, which imposes vicarious liability on an
employer based upon an employee’s liability. See Cutter,
126
N.H. at 840. A negligent hiring cause of action does not arise,
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however, “merely because the one employed is incompetent,
vicious, or careless.” Id. cmt. d. An employer is liable i f ,
“under the circumstances, the employer has not taken the care
which a prudent man would take in selecting the person for the
business at hand,”
id. cmt. d, or in providing instructions.
Id.
cmt. c.
Failure to take requisite care in selecting an employee, or
in providing instructions, would constitute a breach of a duty
owed by an employer to foreseeable third parties. Accordingly, a
material element of this cause of action requires that “the
employer antecedently had reason to believe that an undue risk of
harm would exist because of the employment.” Id. cmt. d. In
other words, to state a claim, the complaint must allege facts
that, if true, would establish that the defendant employer knew,
or should have known, the employee presented a risk to third
parties. See Cooperman v . Individual, Inc.,
171 F.3d 4 3 , 47 (1st
Cir. 1999) (“plaintiff must set forth factual allegations, either
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direct or inferential, respecting each material element”
(internal citation and quotation marks omitted)). 1
Plaintiff alleges that the New Beginnings counselor “coaxed
[his] wife into ‘making it [(the fight)] sound worse than it was’
to ensure that she would get the order granted.” Complaint ¶ 3 2 .
He also states that “[t]he New Beginnings employee suggested and
coaxed the plaintiff’s wife into exaggerating the truth to get a
DVPO.” Id. ¶ 7 8 . But, there are no allegations that New
Beginnings knew, or should have known, that its counselor would
encourage a victim of domestic violence to make materially false
statements in a petition for a DVPO, and not facts which would
support such an assertion. Nor are there any allegations in the
complaint that New Beginnings gave its counselor misleading,
incomplete, or otherwise improper instructions. Plaintiff’s
general and conclusory allegations that New Beginnings was
“negligent” and “failed” to properly hire, train, and/or
supervise the unidentified counselor, see Complaint ¶¶ 7 7 , 79-81,
1
Restatement (Second) of Torts § 317 also subjects an
employer to liability for actions of an employee conducted
outside the scope of employment; however, the same knowledge
requirement exists under that theory. See Restatement (Second)
of Torts § 317 cmt. a.
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are not supported by any factual assertions. See Cooperman, 171
F.3d at 47-48 (discussing difference between facts and
conclusions).
Even if plaintiff were able to prove the counselor
encouraged his wife to be untruthful on her petition for a DVPO,
and that his wife did materially misstate facts, plaintiff still
could not recover from New Beginnings under the direct liability
theory of negligent hiring, training, and supervision, because he
has not alleged any facts capable of supporting a finding that
New Beginnings, as opposed to the counselor, breached a duty of
care owed to plaintiff.
Conclusion
Accordingly, plaintiff has failed to state a claim upon
which relief may be granted. New Beginning’s motion to dismiss
(document n o . 5 ) is granted, without prejudice.
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SO ORDERED.
Steven J. McAuliffe
United States District Judge
February 1 6 , 2001
cc: Richard Bryant
Jeffrey A . Runge, Esq.
John A . Curran, Esq.
Donald E . Gardner, Esq.
Gary M . Burt, Esq.
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