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,

(1974); Berniqer

v. Meadow Green-Wildcat Corp.,

(1st Cir. 1991);

Dartmouth Review v. Dartmouth College,

(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,

(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,

(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.

. 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 . . . ."

. Finally,

the resulting emotional distress must be accompanied by objective

physical injury.

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.

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.

. 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.

The Court found that their allegations met the

criteria of foreseeability and thus could withstand a motion to

dismiss. See

.

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.,

(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 . . . ."

The Court reaffirmed

that parents have "to be close enough to experience the accident

first hand . . . ."

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,

(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,

, 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,

(1976). A breach of

that duty gives rise to a cause of action. See

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 . . .

-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,

(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."

. 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,

(1953); Martineau v. Waldman,

(1944);

Cleveland v. Reasbv,

(1943); Humphreys v. Ash,

(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,

(1966); Bonte v. Bonte,

(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,

(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,

(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,

(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,

(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.

16