Daroczi v . V T . Center for the Deaf CV-02-440-JM 01/28/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Chrystal Daroczi

v. Civil N o . 02-440-JM Opinion N o .

Vermont Center for the Deaf & Hard of Hearing, Inc. d/b/a The Austine School for the Deaf

O R D E R

Chrystal Daroczi alleges in this action that Vermont Center

for the Deaf & Hard of Hearing, Inc. d/b/a The Austine School for

the Deaf (“Austine”) negligently hired, retained, and supervised

an employee who sexually harassed and attempted to molest her.

The Court has for consideration Defendant’s Motion for Summary

Judgment (document n o . 1 9 ) , and Defendant’s Motion to Strike

Portions of Plaintiff’s Errata Sheet, Affidavit and Additional

Statement of Material Facts (document n o . 2 7 ) . As discussed

herein, the Court denies the motion to strike because the

evidence Defendant challenges is admissible under the applicable

rules. Additionally, the Court denies the motion for summary

judgment, which argues that Plaintiff cannot establish harm

sufficient to recover on a claim of negligently caused emotional

distress, because the Plaintiff’s damages claim against the Defendant is in fact, not premised on the tort of negligent

infliction of emotional distress. Plaintiff’s claim instead is

premised on the Defendant’s direct liability, in negligence, for

its employee’s intentionally tortious conduct. There is no

requirement that a plaintiff offer expert testimony to support a

claim for damages caused by an intentional tort.

I. Summary Judgment Standard

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). A genuine issue is one “that properly can be resolved

only by a finder of fact because [it] . . . may reasonably be

resolved in favor of either party.” Anderson v . Liberty Lobby,

Inc.,

4 2 , 250 (1986). A material fact is one that

affects the outcome of the suit. See id. at 248.

“Summary judgment is a procedure that involves shifting

burdens between the moving and the nonmoving parties.” LeBlanc

v . Great Am. Ins. Co.,

(1st Cir. 1993). The

moving party bears the initial burden of establishing that there

2 is no genuine issue of material fact. See Celotex Corp. v .

Catrett,

1 7 , 323 (1986). If that burden is met, the

opposing party can avoid summary judgment only by providing

properly supported evidence of disputed material facts that would

require trial. Id. at 324. Evidence that is “merely colorable,

or is not sufficiently probative” will not preclude summary

judgment. Anderson,

(citation omitted); see

also, LeBlanc,

(“the nonmoving party must establish

a trial-worthy issue by presenting enough competent evidence to

enable a finding favorable to the nonmoving party.”).

On a motion for summary judgment, the court construes the

record in the light most favorable to the non-moving party,

resolving all inferences in its favor, and determines whether the

moving party is entitled to judgment as a matter of law. Carroll

v . Xerox Corp.,

3 1 , 237 (1st Cir. 2002). The court

does not credit the nonmoving party’s “conclusory allegations,

improbable inferences, and unsupported speculation.” Medina-

Munoz v . R.J. Reynolds Tobacco Co.,

, 8 (1st Cir.

1990). Applying this standard, the facts are recited below.1

1 Defendant filed a statement of undisputed material facts in support of its motion for summary judgment. In response, Plaintiff filed a statement of disputed facts, and additional material facts, with her opposition. Defendant argues in its

3 II. Background

Daroczi is a completely deaf former Austine boarding

student. She attended Austine between the years of 1990-2002,

usually boarding from Sunday night to Friday afternoon. Austine

is a private, non-profit corporation organized and existing under

the laws of the state of Vermont with a principal place of

business in Brattleboro, Vermont.

Austine hired Dolph, a/k/a “John,” Rehkop (“Rehkop”) as part

of its staff in 1996. When hired, Rehkop was a 27-year old

college graduate. In August 1998, Rehkop was assigned or

promoted to a position as behavioral support specialist.

Rehkop’s duties then included, among other things, disciplining

students. Rehkop had access to most school buildings, and was

allowed to have unsupervised meetings with students.

A. Alleged Inappropriate Conduct

Plaintiff alleges that the first time Rehkop acted

reply that Defendant’s statements of undisputed facts should be deemed unopposed where Plaintiff has denied statements contained in her amended complaint, interrogatory responses, and deposition testimony without citing any contrary sworn testimony. Fed. R. Civ. P. 56(e) provides that: “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, . . . .” Thus, the Court overrules Plaintiff’s objections to Defendant’s statements of facts where Plaintiff has not opposed Defendant’s pleading with competent evidence.

4 inappropriately towards her was in the spring of 1999 during a

semi-formal outing to an Asian restaurant, located approximately

thirty minutes from Austine. This outing included six female

students including Plaintiff, Rehkop, and another Austine staff

member chaperone named Melissa Vigilante. Plaintiff alleges that

Rehkop touched her inappropriately and flirted with her at the

restaurant. This behavior occurred as Plaintiff and Rehkop were

seated at a large table while a chef prepared food at the table.

The table was in the shape of a “U,” and people seated at the

table could see each other without obstruction. Rehkop was

seated near Plaintiff, although Plaintiff does not recall who was

sitting on either side of her.

Plaintiff alleges that Rehkop began to tease her, and “get

on her case,” at the restaurant, but she could not recall

specifically what he said. She alleges that Rehkop also touched

her inappropriately on the arm as he attempted to get her

attention. Although it is customary in the deaf community to tap

a person on the shoulder to gain that person’s attention,

Plaintiff felt that Rehkop touched her inappropriately because he

was rubbing up and down the side of her upper arm. She

testified, however, that at the time of the outing she thought

5 that Rehkop’s behavior might have been inadvertent or that “he

was just trying to be sweet.”

The next time that Rehkop behaved in an inappropriate manner

occurred during that same evening after Plaintiff had returned to

Austine from the restaurant. Plaintiff alleges that she went to

the dining room in the high school girl’s dormitory to work on

her homework. After an unspecified amount of time passed, Rehkop

came to see her. Rehkop had a “very serious expression” on his

face and Plaintiff thought that she was in trouble. Rehkop

touched Plaintiff on the shoulder to get her attention and said

“you need to come with me to the office now.” Rehkop then took

Plaintiff to the dorm R.A. office, also located within the high

school girl’s dormitory. They walked to the office without

conversation. Plaintiff cannot recall whether Rehkop had to

unlock the office before entering.2

Inside the office, Rehkop sat behind the desk with Plaintiff

seated in a chair in front of the desk. Plaintiff cannot recall

how close to the desk she was seated. She was wearing a black

2 In her affidavit, filed in support of her opposition to the motion for summary judgment, Plaintiff states that “[o]nce inside the office, M r . Rehkop closed the door behind u s . There was paper covering the windows of the office, so nobody could see inside.” Daroczi Aff., ¶ 3

6 dress with a white checker pattern that came about halfway up her

thigh. After Plaintiff sat down, they engaged in “typical

conversation.” She does not recall how long this conversation

lasted. After a period of time, Rehkop stood u p , walked around

the desk to the front, leaned against the desk, and rested his

elbow on the desk with his head in his hand. At this point,

Rehkop began to flirt with Plaintiff, which Plaintiff described

as winking at her and looking at her “from head to toe, up and

down.” Plaintiff cannot recall how many times Rehkop winked at

her. She described Rehkop’s “looking [her] up and down” as

seeing Rehkop’s eyes lustfully look at her face and then travel

down her body to her feet. She cannot recall how many times

Rehkop did this, but claims it was more than once.

Plaintiff alleges that Rehkop then asked her to “open her

legs” to which Plaintiff said “no.” Rehkop then urged her to

comply saying “come o n , come on” to which she again said “no.”

Plaintiff alleges that Rehkop then asked her if she wanted to

touch his “big dick.” As Rehkop was saying this, he put his

hands on his pants as if he was going to unbutton his pants.3

3 Plaintiff states in her affidavit that Rehkop “also put his hands on his pants as if he were going to expose himself” to her. Daroczi Aff., ¶ 3 . In that same paragraph, she adds that Rehkop was taller, heavier and presumably stronger than she was.

7 Plaintiff again said “no” and Rehkop stopped. Rehkop did not

unbutton his pants. Plaintiff alleges that the conversation then

went on to “other things,” which she cannot recall.

Plaintiff alleges that before she left the office Rehkop

told her not to tell anyone about what occurred during their

meeting, and that if she did he would get back at her by

reporting to Austine officials that Plaintiff’s relationship with

an Austine student, who was over 18-years old, was continuing in

secret. Plaintiff was either 13 or 14-years old at that time.

Plaintiff testified that she had already gotten into trouble

because of her relationship with that boyfriend, and that her

boyfriend had been reported to SRS, which is an abbreviation for

Vermont Department of Social and Rehabilitative Services.

Plaintiff was concerned that her boyfriend might go to jail if

Rehkop disclosed that the relationship had continued. There

were no witnesses to the meeting between Rehkop and Plaintiff.

Following the incident in the dorm R.A. office, Plaintiff

alleges that Rehkop winked at her in the hallway. Plaintiff

cannot recall how many times this occurred, but claims that it

was more than once.4 After Rehkop winked at her, which was

4 Plaintiff changed her deposition testimony to reflect at page 1 3 8 , line 1 6 , that “The winking and flirting incidents

8 whenever she walked past him, Rehkop would go back to acting

normally. Plaintiff could not recall Rehkop taking any other

actions that she considered inappropriate.

Plaintiff did not complain to Rehkop, or anyone else, about

Rehkop touching her on the arm at the restaurant in the spring of

1999. She did not tell anyone at Austine about Rehkop’s conduct

in the dorm R.A.’s office until September 1 6 , 1999. On that

date, Plaintiff told Ina Schaeffer, an Austine counselor, about

the office meeting with Rehkop. By that time, Rehkop no longer

worked at Austine. Plaintiff admits that she never told anyone

at Austine that Rehkop would wink at her, and she does not know

if anyone saw Rehkop wink at her in the hallway.

Plaintiff testified that she expected that Rehkop would get

into trouble if she reported his conduct in the dorm R.A.’s

office to school officials. Austine had trainings at the

beginning of every year where students were taught to report

problems with inappropriate conduct to John Fish or M s .

Schaeffer, who were persons in positions of authority. While

those trainings focused on inappropriate conduct by students

occurred more than once.” See Def. Reply to Pl.’s Statement of Disputed Material Facts, Ex. D (emphasis added). There is no mention or description of any additional Rehkop “flirting” in the record. The Court does not credit that conclusory allegation.

9 toward each other, not by staff directed toward students,

Plaintiff complained to M s . Schaeffer about Rehkop’s conduct.

Plaintiff testified that she did not report Rehkop’s

behavior prior to September 1 6 , 1999 for the following reasons:

(1) she was afraid that Rehkop would reveal that she continued to

see the significantly older student and that the student would be

disciplined; (2) she was afraid that she would be punished for

continuing the relationship with that student; (3) she worried

that people would think badly of her because of her relationship

with the older student; and (4) she worried that Rehkop would

make up stories about her that were not true, but that would get

her into trouble at school.

B. Plaintiff’s Alleged Injuries

During discovery, Defendant requested in its third

interrogatory that Plaintiff: “list and describe in detail each

and every mental, emotional, or nervous condition, as well as

each and every injury, illness or physical condition, you claim

to have suffered as a result of those incidents alleged in your

Amended Complaint.” Plaintiff answered: “As a result of the

incidents alleged in her Amended Complaint, [Plaintiff] has had

nightmares, flashbacks, and other manifestations of emotional

10 distress.” Pl.’s Resp. to Def.’s Interrog. N o . 3 . Plaintiff

testified at her deposition that she has bad dreams related to

Rehkop and that she sometimes feels that Rehkop is looking over

her shoulder and she gets momentarily scared; and that if she

goes into, or near the staff office in the high school girls

dormitory, she is bothered by “flashbacks” and “visions of what

happened there.” Plaintiff testified that she had bad dreams

about Rehkop pretty often but that she could not recall how many

times. She alleged that her dreams included images of Rehkop

threatening her with a knife, or placing a noose around her neck.

Plaintiff also testified that she has bad memories of Rehkop when

she watches a movie that depicts a “very similar experience to

mine,” or when she is “not really focusing on one thing.”5

Plaintiff alleges in her affidavit that at the time Rehkop

harassed her and attempted to molest her, she felt embarrassed

and ashamed and was particularly afraid that Rehkop would attack

her, even though she had rejected his sexual advances. Daroczi

5 Plaintiff added to her deposition testimony at page 1 5 1 , line 1 4 , that: “In addition to the nightmares, lost sleep and fear I continue to experience, I also suffered from nightmares, lost sleep, fear, flashbacks, embarrassment, and shame in the past.” Def. Reply to Pl.’s Statement of Disputed Material Facts, Ex. D. She stated in her errata sheet that the reason for the change was “confusion about question, including reference to present tense.”

11 Aff., ¶ 4 . She alleges that she continues to suffer from

nightmares, insomnia, flashbacks, fear, and feelings of

embarrassment and shame even after Rehkop left Austine in

September 1999.

¶ 5 . She states that the only reason that

she did not leave Austine before 2002 was because she felt that

her then-boyfriend, another Austine student, could protect her.

That boyfriend graduated from Austine in the spring of 2002.

Plaintiff transferred from Austine the following fall.

Plaintiff admits that she has received no treatment and has

taken no medications for any of the alleged problems that she

experienced as a result of Rehkop’s conduct. Plaintiff has not

disclosed any expert witnesses in support of her claims of

emotional distress. Plaintiff also admits that her experiences

with Rehkop have not stopped her from engaging in any activities.

III. Motion to Strike

A. Plaintiff’s Deposition Errata Sheet

Defendant argues that Plaintiff impermissibly attempts to

alter and amend her prior sworn testimony both at deposition and

via interrogatory in her errata sheet. In particular, Defendant

argues that Plaintiff has substantially amended her version of

how Rehkop asked her to engage in sexual contact, and the impact

12 of Rehkop’s conduct on her.

Although Defendant complains that Plaintiff made her errata

sheet changes after Defendant moved for summary judgment, there

is no question that Plaintiff’s errata sheet was timely under the

rules. The only issue before the Court is whether or not

Plaintiff’s substantive changes to her deposition testimony

violated Rule 30(e), which provides that:

If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them.

Fed. R. Civ. P. 30(e) (emphasis added). Defendant argues that

the substantive changes that Plaintiff makes in her errata sheet

violate Rule 30(e), citing Greenway v . Int’l Paper Co.,

(W.D. L a . 1992), as support. In Greenway, the court

found that:

The purpose of Rule 30(e) is obvious. Should the reporter make a substantive error, i.e., he reported “yes” but I said “no,” or a formal error, i.e., he reported the name to be “Lawrence Smith” but the proper name is “Laurence Smith,” then corrections by the deponent would be in order. The Rule cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home

13 and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination.

.

The holding in Greenway on the application of Rule 30(e) is

not controlling and is not followed by this court. Other courts

have held that the plain language of the rule only requires that

“the deponent abide by a restricted time frame for making the

changes and recite the reasons for any changes.” Elwell v .

Conair, Inc.,

9 , 88 (D. M e . 2001) (quoting Great

N . Storehouse, Inc. v . Peerless Ins. Co.,

at *2

(D.Me. Dec. 2 9 , 2000)). In Elwell, the court criticized the

reasoning in Greenway as unpersuasive emphasizing that in

addition to the errata sheet changes, the deponent’s original

answers may be provided to the jury, and that jurors should be

able to discern the artful nature of the changes. Elwell, 145 F.

Supp. 2d at 8 7 ; see also, Tingley Sys. v . CSC Consulting, Inc.,

5 , 119-120 (D. Mass. 2001) (finding that the

express language of Rule 30(e) allows a deponent to change the

substance of his answers, and that the deponent need only provide

a non-conclusory reason for doing s o ) . At least one noted

commentator has urged that the interpretation applied by the

14 court in Elwell is the better view. See 7 James Wm. Moore, et

a l . , Moore’s Federal Practice, § 30.63[3] (3rd ed. 2003)

(“Although it is unseemly to see a deponent ‘rewriting’

deposition testimony, the prior (presumably less advantageous)

testimony is not expunged from the record. The deponent can be

cross-examined about the changes and impeached by the

inconsistency, with the finder of fact invited to determine that

the initial reaction was the honest reaction.”). After a review

of the conflicting authorities on this issue, the Court denies

Defendant’s motion to strike the portions of Plaintiff’s errata

sheet cited above in the notes.

B. Plaintiff’s Affidavit Filed In Support of Her Objection

Similar to its argument supporting the motion to strike

portions of Plaintiff’s errata sheet, Defendant argues that it is

inappropriate and impermissible for a party opposing a motion for

summary judgment, such as the Plaintiff here, to “spice up” her

prior deposition testimony through an affidavit. The First

Circuit has found that “[w]hen an interested witness has given

clear answers to unambiguous questions, he cannot create a

conflict and resist summary judgment with an affidavit that is

clearly contradictory, but does not give a satisfactory

15 explanation of why the testimony is changed.” Colantuoni v .

Alfred Calcagni & Sons,

, 4-5 (1st Cir. 1994); see also,

Morales v . A.C. Orssleff’s EFTF,

2 , 35 (1st Cir. 2001)

(a party may not create an issue of fact simply by submitting a

subsequent contradictory affidavit); Torres v . E.I. Dupont de

Nemours & Co.,

3 , 20-21 (1st Cir. 2000) (post-summary

judgment affidavit that contradicted sworn deposition testimony

did not indicate that there was confusion at the time of the

deposition or that the prior testimony was in error). This

language does not mean, however, that all changes to a party’s

testimony are prohibited. The court has held that it would be an

abuse of discretion to disregard an affidavit pertaining to

previously identified incidents that are merely described with

more specificity in the affidavit. Hernandez-Loring v .

Universidad Metropolitana,

9 , 55 (1st Cir. 2000).

Although the Plaintiff’s affidavit is perhaps close to the

line, the Court does not find that the testimony in Plaintiff’s

affidavit clearly contradicts her prior sworn testimony, or that

it describes any completely new incidents. Although the

Plaintiff did reply “I think that’s i t , I guess” and “That’s it”

in response Defendant’s counsel’s question asking “Other than bad

16 dreams, feeling like Rehkop is looking over your shoulder, and

occasional flashbacks or bad memories, are there any other

problems you attribute to Rehkop?” the Court does not find that

Plaintiff’s response precluded her from adding any additional

details regarding the incidents that she complained of or the

harm that she suffered in her affidavit. See Hinkley v . Baker,

7 , 59 n.1 (D. M e . 2000) (finding that answering

“Yes” to a deposition question inquiring whether a deponent had

disclosed all bad or offensive conduct did not foreclose the

deponent from providing additional details regarding the alleged

incidents of abuse in a subsequent affidavit). Here, the

Plaintiff’s affidavit elaborates on the circumstances surrounding

the incidents that she previously been described. To the extent

that Plaintiff’s subsequent elaboration undermines her

credibility, she may be confronted with her deposition testimony

at trial. With regard to Plaintiff’s description of the injuries

that she suffered, Plaintiff’s affidavit repeats the changes to

her deposition testimony, which this Court has already found

permissible under Rule 30(e). Accordingly, the Court denies

Defendant’s motion to strike portions of Plaintiff’s affidavit.

17 C. Plaintiff’s Statement of Additional Material Facts

Defendant argues that Plaintiff’s statement of additional

material facts contains “gross misrepresentations” of the

testimony given by Amanda Schauer, Noella Kolash, Samantha Turner

and Nicole Woods, former Austine students who also claim to have

been harassed or molested by Rehkop.6 More significantly,

Defendant argues that these facts “are not in any way ‘material’

to the legal argument posed by Defendant’s motion for summary

judgment, which focuses solely on M s . Daroczi’s allegations

concerning M r . Rehkop’s conduct towards her, the harm she

allegedly suffered as a consequence, and the standard of proof

necessary to prevail at trial for such claims.” Def.’s Reply to

Pl.’s Statement of Disputed Material Facts at 3 5 .

Defendant does not state affirmatively in its moving papers

that it does not contest for purposes of summary judgment the

Plaintiff’s allegation that Defendant was negligent. To the

contrary, Defendant disputes Plaintiff’s allegation that

Defendant knew or should have known of Rehkop’s propensity to

engage in sexual misconduct. See Def.’s Mem. of Law at 2 .

6 Defendant did not to support its challenge to Plaintiff’s statement of additional material facts with any citations to competent evidence.

18 Defendant then denies legal responsibility for any such conduct

by Rehkop.

Plaintiff’s statement of additional material

facts, in part discussing claims by other Austine students of

harassment and molestation by Rehkop from 1997 to 1999 and

Austine’s notice of those claims, are relevant to the issue of

whether Austine was negligent in hiring, retaining and

supervising Rehkop. In light of Austine’s disavowal of any

responsibility for Rehkop’s conduct in its moving papers, the

Court finds unpersuasive Defendant’s argument that Plaintiff’s

additional statement of material facts should be struck from the

record; the motion to strike is denied. For purposes of

consideration of the motion for summary judgment, the Court finds

that Defendant has not contested by appropriate record support

Plaintiff’s claim that Austine either knew, or should have known,

about the risk of Rehkop engaging in the sexual misconduct

alleged in Plaintiff’s Amended Complaint.

IV. Motion for Summary Judgment

A. Choice of Law

In determining what state law applies in a diversity action,

such as this, a federal district court applies the forum state’s

choice of law rules. Lexington Ins. C o . v . Gen. Accident Ins.

19 C o . of Am.,

2 , 46 (1st Cir. 2003).

When New Hampshire is the forum for a suit in which one or more other States also have an interest, we treat potential conflicts of law as follows: we first decide whether a relevant law is substantive or procedural; if it is substantive, we determine whether it actually conflicts with the laws of another interested State; if it is procedural, we generally apply our own law.

Keeton v . Hustler Magazine,

(N.H. 1988). The

issue of whether this Court should apply the law of New Hampshire

or Vermont to the Plaintiff’s negligence claims is substantive.

As such, the Court must determine whether an actual conflict

exists in the law of the two states.

Defendant argues that there is no conflict between the laws

of New Hampshire and Vermont with regard to the proof required

for Plaintiff’s claim for damages for negligently caused

emotional distress. Plaintiff disputes Defendant’s assertion

arguing that unlike New Hampshire law, there is no requirement

under Vermont law that a plaintiff offer expert testimony to

recover damages for negligently caused emotional distress.

Having carefully reviewed the amended complaint and the

parties’ summary judgment papers, the Court has determined that

the parties have briefed an issue that is not even before the

court. There is no claim for damages in the Plaintiff’s

20 complaint based on either “negligently caused emotional

distress,” or “negligent infliction of emotional distress.”

Rather, in all three counts of Plaintiff’s amended complaint she

seeks damages based on Defendant’s alleged direct liability, in

negligence, for damages caused by the intentionally tortious acts

of Defendant’s employee. The Court finds no actual conflict

between the laws of New Hampshire and Vermont with regard to

claims alleging direct liability for damages based on negligent

hiring, retention, or supervision. Under the law of either

state, the Court finds that the Plaintiff has raised a genuine

issue for trial on the Defendant’s liability, and that Plaintiff

need not offer expert testimony in order to recover damages.

The Supreme Court of New Hampshire recognized claims based

on negligent hiring, retention, and supervision in a context

closely analogous to that before the Court. In Marquay v . Eno,

7 2 , 281 (N.H. 1995), court found that a school has a

duty not to hire or retain employees that it knows or should know

have a propensity for sexually abusing students. “Where the

plaintiff can establish that the school knew or reasonably should

have known of such a propensity, the school will generally be

liable for the foreseeable sexual abuse of students by that

21 employee.” Id.; see also, Trahan-Laroche v . Lockheed Sanders,

1 7 , 419 (N.H. 1995) (a principal may be found directly

liable for damages resulting from the negligent supervision of

its agents’ activities).

Similarly, Vermont courts have recognized that a principal

or master has a duty to exercise reasonable care to supervise or

control his agent or servant if he knows or should know of the

need for exercising such control, and has the opportunity to do

so. See Brueckner v . Norwich Univ.,

(Vt.

1999) (finding that a principal may be found directly liable for

damages resulting from negligent supervision of its agents’

activities and citing Trahan-Laroche, 657 A.2d at 4 1 9 ) ; Kennedy

v . Roman Catholic Diocese,

3 1 , 234 (D. V t . 1996)

(finding that the defendant’s exercise of control of some

activities of its priests did not impose a legal duty to protect

the plaintiff absent some notice that a priest accused of sexual

abuse might engage in the volitional criminal acts at issue);

Bradley v . H.A. Manosh Corp.,

7 8 , 981 (Vt. 1991) (“If

the actor is a servant upon his master’s premises, a duty to act

reasonably to control that servant’s actions arises if the master

has knowledge of (1) ability to control, (2) need to control, and

22 (3) opportunity to control that servant.”). Although the Court

has not located any Vermont case that has decided a claim based

on alleged negligent hiring or retention, the Supreme Court of

Vermont has implied that such claims are valid under Vermont law.

See Huminski v . Lavoie,

(Vt. 2001) (finding

that plaintiff’s complaint alleging, among other things,

negligent hiring and supervision, required more thorough analysis

to determine whether the claims were subject to the doctrine of

absolute prosecutorial immunity); Doe v . Doe,

(Vt. 2001) (reversing an order of summary judgment in

defendant’s favor in a case where plaintiff alleged that she was

sexually abused by a state employee and stated claims based o n ,

among other things, negligent hiring and supervision).

In a claim for damages based on negligent hiring, retention

or supervision, the defendant is liable for all foreseeable

damages caused by the defendant’s employee or agent. Marquay,

662 A.2d at 281. Recoverable damages for an intentional assault,

for example, may include the plaintiff’s pain and suffering

caused by the assault without the necessity for support by expert

testimony. In a recently decided case, the Supreme Court of New

Hampshire expressly found that damages for mental suffering are

23 recoverable without the necessity of showing actual physical

injury or offering expert testimony in cases alleging the

intentional tort of assault if the damage is of a kind that

normally results from an assault and reasonable in extent. Silva

v . Warden, N.H. State Prison, N o . 2003-196,

at

*2 (N.H. Dec. 2 4 , 2003) (citing Fischer v . Hooper,

(N.H. 1999); see also, Restatement, Second, Torts § 905, Cmt.

on Clause (b) (“The principal element of damages in actions for

battery, assault or false imprisonment, . . . , is frequently the

disagreeable emotion experienced by the plaintiff.”);

Restatement, Second, Torts § 9 0 7 , Cmt. b . (“Nominal damages can

be awarded when the defendant has invaded an interest of the

plaintiff protected against nonharmful conduct of the sort

committed by the defendant and no harm has been proved.”).

The Court finds unpersuasive the Defendant’s argument that

Plaintiff’s claim for emotional distress damages should be found

precluded under Thorpe v . Department of Corrections,

(N.H. 1990), because she has not identified an expert witness.

It is true that the court in Thorpe held that expert testimony is

required “in all negligence cases where emotional distress

damages are claimed.”

. But while Defendant’s

24 argument appears to be correct on its face, it is only

deceptively s o . Plaintiff’s claim against the Defendant is based

on a negligence theory, but Plaintiff does not allege that her

injuries were “negligently caused.” Rather, Plaintiff seeks to

hold the Defendant directly liable for injuries that she suffered

as a result of Defendant’s employee’s intentionally tortious

conduct. The Court finds Thorpe distinguishable in that the

plaintiff in that case did not allege that he was subjected to

intentional wrongdoing. Since the Defendant’s motion for summary

judgment addresses a claim that was not pled in this action,

there is no basis for granting the Defendant summary judgment.

V. Conclusion

For the reasons set forth above, Defendant’s motion to

strike (document n o . 27) is denied, and Defendant’s motion for

summary judgment (document n o . 19) is denied.

SO ORDERED.

James R. Muirhead United States Magistrate Judge Date: January 2 8 , 2004

cc: John A . Houlihan, Esq. Charles P. Bauer, Esq. Katherine M . Strickland, Esq. Pietro J. Lynn, Esq.

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