Troy v. Bishop Guertin High Sch.

307 A.3d 525

Larissa TROY

v.BISHOP GUERTIN HIGH SCHOOL & a.

No. 2022-0259

Supreme Court of New Hampshire.

Argued: April 19, 2023

Opinion Issued: August 10, 2023

Hillsborough-southern judicial district

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the plaintiff.

Airdo Werwas, LLC, of Chicago, Illinois (Michael A. Airdo and Brian J. Hingston on the brief), and Winer and Bennett, LLP, of Nashua (David K. Pinsonneault and John M. Edwards on the brief, and John M. Edwards orally), for the defendants.

DONOVAN, J.

The plaintiff, Larissa Troy, appeals an order of the Superior Court (Temple, J.) granting summary judgment in favor of the defendants, Bishop Guertin High School (BGHS) and Brothers of the Sacred Heart of New England, Inc. (BSHNE), based upon the court’s finding that the plaintiff’s claims are barred by the statute of limitations. On appeal, the plaintiff argues that the trial court erred because the plaintiff did not obtain personal knowledge of the causal connection between her alleged injury and the defendants’ hiring practices until 2017, which, pursuant to the discovery rule set forth in former RSA 508:4-g, II (2010) (amended 2020), tolled the statute of limitations to permit her 2018 lawsuit. Viewing the evidence in the light most favorable to the plaintiff, we conclude that there is a material factual dispute as to when the plaintiff knew, or in the exercise of reasonable diligence, should have known, that her injury was proximately caused by the defendants’ conduct. Accordingly, we reverse the trial court’s grant of summary judgment and remand.

I. Facts

The following facts are supported by the summary judgment record. BGHS is a private Catholic school owned and operated by BSHNE. In 1988, Shawn McEnany was convicted in Maine of unlawful sexual conduct with a fifteen-year-old female student while McEnany was teaching at another school that BSHNE owned and operated. Despite knowledge of this conviction, in 1990, BSHNE hired McEnany to teach at BGHS. Leo Labbe, the official responsible for the hiring, "believed that it was safe" to hire McEnany "because it was, at the time, an all-boys school." Prior to hiring McEnany, Labbe did not consult with a psychological or mental health professional as to whether McEnany would pose a risk to female students. In 1992, BGHS admit- ted female students. Nevertheless, BGHS did not take any action to limit McEnany’s contact with female students and did not alert the parents or students of his prior conviction.

The plaintiff attended BGHS from 1992 to 1996. In the fall of 1995, when the plaintiff was seventeen years old and a senior at BGHS, the plaintiff alleges that McEnany sexually assaulted her on two occasions on the BGHS campus. The first incident occurred in the student locker area while the plaintiff sat on a radiator near her sister. Afterwards, the plaintiff told her sister, who witnessed the incident, to "stay away" from McEnany. The second incident occurred in a classroom while students were taking an exam.

The plaintiff testified in her deposition that she reported the second assault to the BGHS Dean of Students. The plaintiff recounted that the Dean accused her of lying and told her that if she continued to repeat the story, she would be in trouble. The plaintiff also informed her mother of the sexual assault, who did not believe her. Following these alleged incidents and disclosures, McEnany continued to teach at BGHS. The plaintiff graduated from BGHS in 1996 and attended college in New England that fall.

In November 1997, McEnany was charged in New Hampshire "with teaching as a convicted sex offender and failing to register as a sex offender." In response, Labbe, BGHS’s headmaster at that time, addressed the faculty and student body and confirmed that McEnany had been convicted of unlawful sexual contact with a fifteen-year-old female student while teaching in Maine and that BGHS hired McEnany despite knowing of his prior conviction. BGHS also sent two letters to BGHS families concerning McEnany’s criminal history. The first letter disclosed the details of McEnany’s prior conviction, claimed that McEnany did not engage in any improper conduct at BGHS, and explained that due to his pending criminal charges, McEnany had been reassigned. The second letter acknowledged BGHS’s prior knowledge of McEnany’s conviction when it hired him, but explained that Labbe personally believed that McEnany had been rehabilitated such that he could return to teaching. At that time, the plaintiff’s two younger sisters attended BGHS. Nevertheless, the plaintiff asserts that she had no knowledge at that time of BGHS’s public disclosures, that her sisters never discussed these events with her, and that the plaintiff’s mother denied receiving the second letter.

Rather, the plaintiff asserts that she first became aware of BGHS’s public disclosures and of McEnany’s prior conviction in May 2017. That spring, the plaintiff received a message from her brother-in-law discussing a Facebook post by the school acknowledging her athletic career at BGHS. Further, the plaintiff read a newspaper article detailing sexual abuse at another private school. She alleges that these two events caused her to start "thinking about McEnany’s abuse" and motivated her "to Google search his name." She also alleges that upon reading newspaper articles on the website "bishopaccountability.org," she first learned of McEnany’s history of abuse and that BGHS "had previously been sued by other students relative to sexual abuse they had endured at the hands of [BGHS’s] faculty members." She claims that she "did not make any connection in her mind between the sexual abuse by McEnany and the psychological problems she was experiencing," until her internet search in 2017.

In 2017, McEnany passed away. In May 2018, more than twenty-two years after the alleged assaults, the plaintiff brought two common law claims alleging that the defendants were: (1) negligent in hiring, retaining, and supervising McEnany; and (2) negligent in that they failed to protect her while she was a student at BGHS. According to her expert, the plaintiff reported that while at college, between 1996 and 2000, she struggled with her grades because she was "preoccupied with [her] bad feelings and memories of the assault." Moreover, during college, she suffered from panic attacks that were often followed by "days of traumatic memories" related to the assaults and that these "intrusive memories" have continued into the present.

Thereafter, the parties filed cross-motions for summary judgment addressing the question of whether the application of the statute of limitations barred the plaintiff’s claims. The plaintiff argued that it was undisputed that, until 2017, she had no knowledge either of the letter that Labbe sent in 1997, to the parents of BGHS students, or that BGHS knowingly hired a convicted sex offender, Therefore, in her view, because she did not make the causal connection between her alleged injuries, the alleged sexual abuse by McEnany, and the defendants’ prior knowledge of McEnany’s conviction until 2017, both of her claims, are within the three-year statute of limitations set, forth in the discovery rule of former RSA 508:4-g, II. The defendants argued that the plaintiff failed to satisfy her burden of proving that the discovery rule applied to her claims. Instead, in their view, summary judgment was proper pursuant to former RSA 508:4-g, I (2010) (amended 2020) because the statute of limitations expired on the plaintiff’s thirtieth birthday, in 2008.

In February 2022, the trial court issued an order granting the, defendants’ motion for summary judgment and ruling that the plaintiff’s claims are barred by the statute of limitations as set forth in RSA 508:4-g, I. The trial court found that the record "conclusively demonstrates" that the plaintiff "did not bring this action by her thirtieth birthday," see RSA 508:4-g, I, and failed to satisfy her burden of proving that the discovery rule applied because she knew or should have known: "(1) that she has been abused; , (2) the identity, of her abuser; (3) that the defendants employed the abuser; and (4) that the abuse occurred on the, employer’s property," see RSA 508:4-g, II. The plaintiff-moved for, reconsideration, which the court denied. This appeal followed.

II. Analysis

[1–3] On appeal, the plaintiff argues that the trial court erred in its application of the discovery rule when granting the defendants’ motion for summary judgment. When reviewing a trial court’s grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. See Peerless Ins. v. Vt. Mut. Ins. Co., 151 N.H. 71, 72, 849 A.2d 100 (2004). If there is no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, the grant of summary judgment is proper. Id. We review the trial court’s application of the law to the facts de novo. Id.

[4] The narrow question raised in this appeal is whether the statute of limitations barred the plaintiff’s claims. As relevant here, former RSA 508:4-g provided that a person "alleging to have been subjected to any offense under RSA 632-A" and who was under 18 years of age when the alleged offense occurred, may commence a personal action based on the incident within the later of:

I. Twelve years of the person’s eighteenth birthday; or II. Three years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.¹

The effect of Section I is to provide a longer statute of limitations for personal actions alleging sexual assault of a minor than the general rule for "Personal Actions" in RSA 508:4 (2010). On the other hand, Section II incorporates the so-called "discovery rule"...