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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district

No. 2014-0496

DANIELLE (GRAVELINE) GAUTHIER M/N/F MORGAN GRAVELINE

v.

MANCHESTER SCHOOL DISTRICT, SAU #37

Argued: April 22, 2015 

Opinion Issued: September 4, 2015

Backus, Meyer & Branch, LLP, of Manchester (B J Branch on the brief 

and orally), for the plaintiff.

McDonough, O’Shaughnessy, Whaland & Meagher PLLC, of Manchester

(Robert J. Meagher on the brief and orally), for the defendant.

HICKS, J. The plaintiff, Danielle (Graveline) Gauthier, as mother and 

next friend of Morgan Graveline, appeals an order of the Superior Court 

(Garfunkel, J.) granting summary judgment to the defendant, Manchester 

School District, SAU #37. We affirm.

The following facts are derived from the trial court’s order. On February 

4, 2011, Morgan was involved in an altercation with another student, A.M., on 

a school bus. During that altercation, A.M. punched Morgan in the face. The 

bus driver reported the incident to the defendant on February 7.
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The school principal, Barry Albert, downloaded the bus driver’s report on 

February 8 and met with Morgan the next day. Morgan minimized the 

incident, told Albert she did not know the name of the other student involved in 

the altercation, and asked Albert not to notify her mother. Although Albert 

informed Morgan that he would have to notify her mother, he did not do so.

Albert met with A.M. on February 14. A.M. admitted hitting Morgan and 

was given a three-day suspension.

Meanwhile, Morgan received threatening Facebook messages from 

another student, A.A., on February 13 and 14. Albert learned about the 

messages on the morning of February 15 and knew that A.A. and Morgan

would both be in the cafeteria at lunch that day. Albert went to the cafeteria at 

that time and told A.A. to see him after lunch. After Albert left the cafeteria, a 

fight broke out. Morgan was hit several times, sustaining injuries to her head, 

face, and mouth. She was transported to the emergency room. Albert met with 

Morgan’s mother, the plaintiff, in the emergency room and, for the first time, 

told her about the February 4 bus incident and the threatening Facebook 

messages.

At all relevant times, the defendant had in place a written anti-bullying 

policy implemented pursuant to RSA 193-F:4, II (Supp. 2014). That statute 

mandates the adoption, by each school district’s school board, of a written 

policy prohibiting bullying and cyberbullying. The policy must contain, among 

other things, “[a] procedure for notification, within 48 hours of the incident

report, to the parent or parents or guardian of a victim of bullying or 

cyberbullying and the parent or parents or guardian of the perpetrator of the 

bullying or cyberbullying.” RSA 193-F:4, II (h). The defendant’s anti-bullying 

policy provides that “[t]he Principal or administrative designee shall report to 

the parents of a student who has been reported as a victim of bullying and to 

the parents of a student who has been reported as a perpetrator of bullying 

within 48 hours of receiving the report.”

The plaintiff brought suit to recover for Morgan’s injuries. The trial court 

dismissed one of the two counts, and that dismissal is not challenged on 

appeal. The parties then filed cross motions for summary judgment on the 

remaining count — a negligence claim based upon Albert’s failure to notify the 

plaintiff of the alleged bullying. The court granted the defendant’s crossmotion, ruling that it was “barred by the grant of immunity under RSA 507-

B:5” and did “not fall within the exception under RSA 507-B:2.”

On appeal, the plaintiff argues that the trial court erred in finding the 

defendant immune from suit pursuant to RSA 507-B:2 and :5. She maintains 

that the court erred in finding no nexus between her claim that Albert “failed to 

comply with a school district policy that expressly governed the ‘operation[’] of 

her school” and the defendant’s operation of the school premises. See Dichiara 
3

v. Sanborn Reg’l Sch. Dist., 165 N.H. 694, 698 (2013) (holding that “RSA 507-

B:2 provides an exception to RSA 507-B:5 only when there is a nexus between 

the injury and a governmental unit’s ownership, occupation, maintenance, or 

operation of a motor vehicle or premises”). Alternatively, the plaintiff argues 

that if RSA 507-B:2 and :5 apply to immunize the defendant in this case, they 

violate both the right to remedy and equal protection guarantees of Part I, 

Article 14 of the New Hampshire Constitution. Finally, the plaintiff asks us to 

“exercise [our] discretion to resolve a question of law, by interpreting the 

requirements of the parental notice provision of the Manchester School District 

anti-bullying policy.” (All capitals and underlining omitted.) The defendant 

cross-appeals, arguing for affirmance of the trial court’s order because: (1) 

there is no common-law duty to report bullying within forty-eight hours; and 

(2) it is entitled to immunity under RSA 193-F:7 (Supp. 2014) and the doctrine 

of official immunity.

Because the plaintiff’s RSA 507-B:2 and :5 immunity argument raises an 

issue of constitutional law, and “[t]his court has a strong policy against 

reaching a constitutional issue in a case that can be decided on a 

nonconstitutional ground,” Anglin v. Kleeman, 140 N.H. 257, 260 (1995) 

(quotation omitted), we first address the defendant’s arguments for affirmance 

on alternative grounds. See id. (noting that “we will uphold the trial court even 

if it may have reached the right result on mistaken grounds”). The defendant 

argues that summary judgment should be affirmed because “[t]he plaintiff has 

not identified a common law duty to support a negligence action, and any 

statutory duty under RSA [chapter] 193-F carries with it the blanket immunity 

contained in RSA 193-F:7.” If we accept the defendant’s argument that no 

statutory or common law duty lies in this case, the plaintiff’s argument that 

RSA 507:2 and :5 immunity is unconstitutional becomes moot.

“The existence of a duty in a particular case is a question of law, which 

we review de novo.” Mikell v. Sch. Admin. Unit #33, 158 N.H. 723, 731 (2009). 

According to the plaintiff, her “claim is that [Albert] had a common law duty to 

protect and supervise [Morgan] and that he breached this duty by failing to 

notify her parent of [an incident] report that he received . . . and that RSA 

[chapter] 193-F, the anti-bullying statute, was implicated in the assault.” The 

plaintiff contends that this is a common law claim cognizable under Marquay v. 

Eno, 139 N.H. 708, 720 (1995), and not barred by RSA chapter 193-F. 

Accordingly, we pause to examine Marquay and the applicable provisions of 

RSA chapter 193-F.

In Marquay, the United States District Court for the District of New 

Hampshire certified to us certain questions of state law, including whether the 

child abuse reporting statute, see RSA 169-C:29 (2014), creates a private right 

of action and whether:
4

New Hampshire common law impose[s] a duty upon defendant 

teachers, coaches, superintendents, principals, secretaries, school 

districts and school administrative units to protect plaintiff 

students by reporting alleged sexual misconduct to the proper 

authorities or taking other protective measures, if they knew, or 

render them liable if they should have known, that plaintiffs were 

being sexually harassed, assaulted or abused by . . . [other 

teachers or coaches].

Marquay, 139 N.H. at 712.

Before addressing the district court’s questions, we clarified the potential 

roles a statutorily-prescribed standard of conduct may play in establishing civil

liability. Id. at 713-15. In short, the statute may create, either explicitly or

implicitly, a cause of action for violation of its standard of conduct or, if a 

cause of action already exists at common law, “the standard of conduct to 

which a defendant will be held may be defined as that required by statute, 

rather than as the usual reasonable person standard.” Id. at 713. The latter 

role is referred to as the doctrine of negligence per se. See id. As Marquay

made clear, however, “[t]he doctrine of negligence per se . . . plays no role in the 

creation of common law causes of action” and “in many cases, the common law 

may fail to recognize liability for failure to perform affirmative duties that are 

imposed by statute.” Id. at 713-14. “If no common law duty exists, the 

plaintiff cannot maintain a negligence action, even though the defendant has 

violated a statutory duty.” Id. at 714.

Turning to the district court’s questions, we held that the child abuse 

reporting statute neither created a private right of action, id. at 715, nor 

supplied a standard of care, under the doctrine of negligence per se, “in an 

action based on inadequate supervision of a student,” id. at 716. Nevertheless, 

we recognized that “schools share a special relationship with students 

entrusted to their care, which imposes upon them certain duties of reasonable 

supervision.” Id. at 717.

The statute at issue in this case explicitly states that it does not create a 

private right of action. RSA 193-F:9 provides:

Private Right of Action Not Permitted. Nothing in this 

chapter shall supersede or replace existing rights or remedies 

under any other general or special law, including criminal law, nor 

shall this chapter create a private right of action for enforcement of 

this chapter against any school district or chartered public school, 

or the state.

RSA 193-F:9 (Supp. 2014). In addition, RSA 193-F:7 provides immunity 

from suit, stating, in part:
5

A school administrative unit employee, school employee, chartered 

public school employee, regular school volunteer, pupil, parent, 

legal guardian, or employee of a company under contract to a 

school, school district, school administrative unit, or chartered 

public school, shall be immune from civil liability for good faith 

conduct arising from or pertaining to the reporting, investigation, 

findings, recommended response, or implementation of a 

recommended response under this chapter.

RSA 193-F:7.

Determination of whether the plaintiff may maintain her action first 

requires that we discern the nature of her claim. The defendant contends that 

the plaintiff seeks to enforce “a duty to report alleged bullying to a parent in 48 

hours” and argues that “[a]bsent the ‘bullying’ policy and statute, there did not 

exist [such a duty] at common law.” The plaintiff counters that she is not 

relying upon either “a statutory violation and an allegedly created private right 

of action” or negligence per se, but, rather, seeks to hold the defendant liable, 

under respondeat superior, for Albert’s breach of his “common law duty to 

protect and supervise” Morgan in accordance with Marquay. She hopes, 

however, to admit “RSA [chapter] 193-F and the [defendant’s] bullying 

prevention policies as evidence that a jury could consider on the issue of what 

constitutes due care, in relation to her negligence claim.” We conclude that the 

distinction the plaintiff seeks to draw is illusory and her reliance upon 

Marquay is unavailing.

Although neither party provided the court with a copy of the plaintiff’s 

complaint, the trial court characterized the plaintiff’s remaining claim as 

“alleg[ing] that the defendant breached its duty to notify [Morgan’s] mother of 

the alleged bullying in accordance with the school’s anti-bullying policy.” 

(Emphasis added.) As neither party has challenged that characterization, we 

accept it as accurate. Furthermore, statements in the plaintiff’s brief make 

clear that her claim is inextricably intertwined with RSA chapter 193-F: she 

describes her common law negligence claim as “resting on the failure to comply

with the parental notification policy” and contends the defendant “breach[ed] 

its ‘in loco parentis’ duty to comply with its adopted policy for parental 

notification.” (Emphasis omitted.) Nevertheless, despite the plaintiff’s 

invocation of Marquay and her mention of a “negligent breach of the duty to 

protect and supervise,” the only specific duty she actually claims was breached 

is the duty to report in accordance with the school’s anti-bullying policy.

Moreover, we do not read Marquay to impose upon schools an 

overarching “duty to protect and supervise” in all instances and against all 

harms. “In general, the concept of duty arises out of the relationship between 

the parties and protection against reasonably foreseeable harm. The existence 

and extent of that duty depends upon the nature of the relationship between 
6

the parties.” Mikell, 158 N.H. at 731 (citation omitted); see also Ahrendt v. 

Granite Bank, 144 N.H. 308, 314 (1999) (noting that private persons generally 

have no duty to protect others from criminal acts by third persons but that 

“[s]uch a duty may arise . . . if a special relationship exists” (quotation 

omitted)). In Marquay we recognized that a special relationship exists between 

schools and the students in their care so as to impose upon schools “certain 

duties of reasonable supervision.” Marquay, 139 N.H. at 717 (emphasis 

added). The specific duty involved in Marquay was that of “protect[ing] plaintiff 

students by reporting alleged sexual misconduct to the proper authorities or 

taking other protective measures.” Id. at 712.

Even in Marquay, however, we made clear that the duty we recognized 

there was not unlimited. We declined to impose a personal duty of supervision 

upon every school employee, but rather held that “the duty falls upon those 

school employees who have supervisory responsibility over students and who 

thus have stepped into the role of parental proxy.” Id. at 717-18. In addition, 

we “limited the duty . . . to only those periods of time when parental protection 

is compromised, and only to those risks that are reasonably foreseeable.” 

Mikell, 158 N.H. at 731 (discussing Marquay).

We have subsequently declined to extend Marquay. For instance, in 

Mikell, we declined to impose liability upon a school for the suicide of one of its 

students. Id. at 732. We disagreed that the “special relationship [recognized in 

Marquay] — and the duty of reasonable supervision — extends so far as to 

create a duty to prevent a student’s suicide in this case.” Id.

We similarly decline to extend Marquay to create a duty to report 

bullying under the facts alleged in this case. Cf. Stephenson v. City of New 

York, 925 N.Y.S.2d 71, 73 (App. Div. 2011) (concluding school and city not 

liable in negligence for failure to prevent second assault on student despite 

notice of first assault and finding “it unreasonable to impose a duty on the 

school to notify a parent about a fight between two students when the school 

has already affirmatively addressed the misconduct”), aff’d, 978 N.E.2d 1251, 

1253-54 (N.Y. 2012) (noting “[t]here is no statutory duty to inform parents 

about generalized threats made at school, and the circumstances here do not 

give rise to a common-law duty to notify parents about threatened harm posed 

by a third party”). Our reluctance to do so is supported by the legislature’s 

expressed intent that a breach of RSA chapter 193-F not give rise to liability. 

See RSA 193-F:7, :9. Recognition of a common law right of action under the 

facts alleged in this case would undermine the policy thus expressed by the 

legislature. We find instructive the logic of the United States Court of Appeals 

for the Second Circuit in affirming dismissal of a common law fraud claim in 

Broder v. Cablevision Systems Corp., 418 F.3d 187 (2d Cir. 2005):

[I]t is unlikely that the New York legislature, while not intending to 

grant a direct private right of action under [New York Public 
7

Service Law] § 224-a, did intend a private right of action to be 

available to anyone who took the extra step of alleging that a 

violation of § 224-a constituted common-law fraud. And it is 

unlikely that New York courts, which frown on artful pleading to 

circumvent a bar against private actions, would allow such an endrun around the legislature’s apparent intent.

Broder, 418 F.3d at 201 (quotations, brackets, and citations omitted); see also

Kerusa Co. LLC v. W10Z/515 Real Estate Ltd., 906 N.E.2d 1049, 1055 (N.Y. 

2009) (“That [the plaintiff] alleged the elements of common-law fraud does not 

transmute a prohibited private cause of action to enforce Martin Act disclosure 

requirements into an independent common-law tort.”).

Because we find no common-law duty under these circumstances, we 

affirm the grant of summary judgment for the defendant. Having found the 

trial court’s order sustainable on this ground, we need not address the 

plaintiff’s constitutional challenge to RSA 507-B:2 and :5 immunity. See

Anglin, 140 N.H. at 260. We also decline the plaintiff’s invitation to interpret 

the requirements of the parental notice provision of the Manchester School 

District anti-bullying policy. 

Affirmed.

DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.