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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2008-737 HEIDI L. MIKELL, ADMINSTRATOR OF THE ESTATE OF JOSHUA R. MARKIEWICZ v. SCHOOL ADMINISTRATIVE UNIT #33 & a. Argued: March 18, 2009 Opinion Issued: May 15, 2009 Cleveland, Waters & Bass, P.A. , of Concord (William B. Pribis and Lisa M. Blanchard on the brief, and Mr. Pribis orally), for the plaintiff. Getman, Stacey, Schulthess & Steere, P.A. , of Bedford (Dona Feeney on the joint brief and orally) for defendants School Administrative Unit #33, Susan Allen, and Lindy L. Moule. McDonough & O'Shaughnessy, of Manchester (Robert Whaland on the joint brief), for defendants Susan Allen and Lindy L. Moule. DUGGAN, J. The plaintiff, Heidi L. Mikell, as administrator of the estate of her son, Joshua R. Markiewicz, appeals an order of the Superior Court

(McHugh, J.) dismissing her claims against the defendants, School Administrative Unit #33 (SAU #33), Susan Allen, and Lindy L. Moule. We affirm. I The plaintiff alleges the following facts, which we accept as true for purposes of this appeal. In January 2005, Joshua Markiewicz was a seventh grade student attending the Iber Holmes Gove Middle School in Raymond, part of SAU #33. Joshua had had some difficulties in the school environment, and his teachers reported that he was learning disabled and had behavioral problems. The plaintiff disagreed, however, and believed this was an attempt to have Joshua removed from the school. In November 2004, a teacher's aide overheard Joshua state that he "wanted to blow his brains out." The teacher's aide reported the statement to Moule, the school's guidance counselor, who in turn called the plaintiff. Although the plaintiff offered to pick Joshua up, Moule indicated that he was "okay now" and she would send him back to class. Without informing the plaintiff, Moule had Joshua sign a "contract for safety," but subsequently took no further action in regard to his suicide threat. On January 18, 2005, Allen, a special education teacher, reported to the vice-principal that Joshua had referred to two mints on his desk as medicine. The plaintiff alleges Allen did so "falsely and knowingly" in an attempt to affect his disciplinary record, and winked at Joshua while reporting the incident as "an acknowledgement of her lie." The following day, January 19, Joshua was again reported to the vice-principal for tipping his desk in class, being rude, and calling a teacher, apparently not Allen, a "bitch." Joshua was suspended, and the plaintiff was called to pick him up. At that point, the plaintiff contemplated home schooling Joshua, as she had done at times in the past. She told this to the vice-principal, who agreed it was a good idea. Upon arriving home, Joshua went immediately to his room without speaking to his mother. Soon after, the plaintiff left to bring Joshua's grandfather, who had accompanied her to the school, to his residence. When she returned, she found Joshua had hanged himself. Joshua left a suicide note, which, among other things, stated he was telling the truth about the disciplinary incident involving Allen. The plaintiff subsequently brought an action against SAU #33, Moule and Allen, alleging negligence claims against SAU #33 and Moule, intentional infliction of emotional distress and wrongful death claims against Allen, and vicarious liability claims for both Moule and Allen against SAU #33. The

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defendants moved to dismiss the claims against them. The trial court granted the motions. This appeal followed. On appeal, the plaintiff argues that the trial court erred in dismissing her claims against SAU #33 and Moule because they owed Joshua a general and special duty to prevent his suicide and, further, that Moule had voluntarily assumed a duty to act reasonably to prevent his suicide. The plaintiff further contends that the trial court erred in concluding that Allen's conduct was not extreme and outrageous. She also argues that the trial court erred when it determined that the disciplinary incident on January 19 was the more likely cause of Joshua's decision than Allen's conduct on January 18. In reviewing a motion to dismiss, our standard of review is whether the allegations are reasonably susceptible of a construction that would permit recovery. McNamara v. Hersh, 157 N.H. 72, 73 (2008). We assume the plaintiff's pleadings to be true and construe all reasonable inferences in the light most favorable to her. Id. We then engage in a threshold inquiry that tests the facts in her petition against the applicable law. Id. If the allegations constitute a basis for legal relief, we must hold that it was improper to grant the motion to dismiss. Id. As a general rule, negligence actions seeking damages for the suicide of another will not lie because the act of suicide is considered to be a deliberate, intentional and intervening act, which precludes a finding that a given defendant is, in fact, responsible for the harm. McLaughlin v. Sullivan, 123 N.H. 335, 337 (1983). "This is because the act of suicide breaks the causal connection between the wrongful or negligent act and the death." Bruzga v. PMR Architects, 141 N.H. 756, 757-58 (1997) (quotation omitted). A number of jurisdictions, however, have recognized two exceptions to that general rule. Id. at 758. "Under one exception, liability exists because the defendant actually caused the suicide; under the other, liability exists because the defendant had a duty to prevent it." Maloney v. Badman, 156 N.H. 599, 603 (2007). "The first exception involves cases where an intentionally tortious act is found to have caused a mental condition in the decedent that proximately resulted in an uncontrollable impulse to commit suicide, or prevented the decedent from realizing the nature of his act." Id. (quotation omitted). These cases "typically involve the infliction of severe physical injury, or, in rare cases, the intentional infliction of severe mental or emotional injury through wrongful accusation, false arrest or torture." Id. (quotation omitted). We adopted this exception in Mayer v. Town of Hampton, 127 N.H. 81, 87 (1985), holding: [F]or a cause of action for wrongful death by suicide to lie for intentional torts, the plaintiff must demonstrate that the tortfeasor, by extreme and outrageous conduct, intentionally

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wronged a victim and that this intentional conduct caused severe emotional distress in his victim which was a substantial factor in bringing about the suicide of the victim. Mayer, 127 N.H. at 87. The second exception recognizes a cause of action when "the defendant has a specific duty of care to prevent suicide, arising from the defendant's special relationship with the suicidal individual." Bruzga, 141 N.H. at 758 (quotations omitted). "The typical defendant in such cases is someone who has a duty of custodial care, is in a position to know about suicide potential, and fails to take measures to prevent suicide from occurring." Maloney, 156 N.H. at 604 (quotation omitted). Specifically, this duty has been imposed on: (1) institutions such as jails, hospitals and reform schools, having actual physical custody of and control over persons; and (2) persons or institutions such as mental hospitals, psychiatrists and other mental-health trained professionals, deemed to have a special training and expertise enabling them to detect mental illness and/or the potential for suicide, and which have the power or control necessary to prevent that suicide. Id. (quotation omitted). The plaintiff raises claims under both exceptions. We address each in turn. II With respect to the first exception, the plaintiff argues that Allen's false report of misconduct was extreme and outrageous, and that a reasonable fact finder could have determined Allen's conduct was a substantial cause of Joshua's suicide. The plaintiff also argues that the trial court inappropriately substituted its judgment rather than assuming the truth of the facts alleged. We disagree. One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. Morancy v. Morancy, 134 N.H. 493, 496 (1991). As we discussed above, when an action for wrongful death by suicide lies as an intentional tort, the plaintiff has the burden to prove that the defendant intentionally engaged in extreme and outrageous conduct that caused extreme emotional distress, and that this emotional distress was a substantial factor in bringing about the suicide. Mayer, 127 N.H. at 87. In determining whether conduct is extreme and outrageous, it is not enough that a person has "acted with an intent which

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is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice.'" Restatement (Second) of Torts

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