___________________________

U.S. District Court

No. 97-657

JOEL HUNGERFORD

v.

SUSAN L. JONES

December 18, 1998

Paul A. Maggiotto, of Concord, by brief and orally, and Upton, Sanders & Smith, of Concord (Robert Upton, II on the brief), for the plaintiff.

Sulloway & Hollis, P.L.L.C., of Concord (Edward M. Kaplan and Sarah G. Smith on the brief, and Mr. Kaplan orally), for the defendant.

Thomas A. Pavlinic, of Annapolis, Maryland, and Paul A. Maggiotto, of Concord, by brief for the False Memory Syndrome Foundation, as amicus curiae.

BRODERICK, J. Pursuant to Supreme Court Rule 34, the United States District Court for the District of New Hampshire (McAuliffe, J.) certified to us the following questions of law:

1. Does a mental health care provider owe a legal duty to the father of an adult patient to diagnose and treat the patient with the requisite skill and competence of the profession when the diagnosis is that the father sexually abused or assaulted the patient?

2. Does a mental health care provider owe a duty to act with reasonable care to avoid foreseeable harm to the father of an adult patient resulting from treatment or other action taken in relation to mental health conditions arising from the diagnosis of past sexual abuse or assault by said father?

We respond affirmatively to both questions with the limitations expressed below.

I

Because these issues arise in the context of a motion to dismiss, we assume the truth of the factual allegations recited by the plaintiff in his complaint and by the district court in its certification order, and construe all inferences in the light most favorable to the plaintiff. See Panto v. Moore Business Forms, Inc., 130 N.H. 730, 732, 547 A.2d 260, 262 (1988).

In August or September 1992, defendant Susan L. Jones began treating Laura B., who was then in her mid-twenties. Jones, a social worker, had limited experience in treating patients allegedly afflicted with repressed memories of sexual assault. In fact, her only training in the area consisted of a lecture on memory retrieval techniques that she attended during a weekend symposium. Nevertheless, Jones represented to Laura that she was a qualified and experienced mental health therapist in the treatment of problems associated with incest and sexual abuse. She failed to inform Laura of her limited experience and training in memory retrieval or explain the controversy in the mental health community regarding the reliability and validity of the phenomenon and techniques she was employing, including the potential for implanting false memories. In addition, Jones did not discuss other treatment options with Laura.

Laura had no knowledge or memory of being sexually abused by her father when she began therapy. During the course of therapy, however, Jones led Laura to believe that her nightmares and anxiety attacks were actually "flashbacks" and "recovered memories" of episodes of sexual assault and abuse by her father. Jones also persuaded Laura that her physical sensations and pain were "body memories" indicative of memory repression or traumatic amnesia involving incidents of sexual abuse. Jones concluded that Laura's psychological problems, including her difficulties with intimate relationships, were caused by her father's sexual abuse.

Jones' repressed memory therapy included a memory retrieval technique she referred to as "visualization" or "imagery," in which she led Laura into a self-induced trance to uncover allegedly lost memories of sexual abuse. As a result, Jones caused Laura to "recall" five episodes of sexual assault by her father. The alleged episodes first began when Laura was five years old and ended only two nights before her wedding. Jones never consulted any mental health professionals for assistance in Laura's therapy.

After learning of his daughter's accusations, plaintiff Joel Hungerford authorized his therapist to communicate with Jones in an effort to help his daughter realize that her "memories" were false. In the face of their communications, Jones remained firm in her diagnosis.

At Jones' direction, Laura ceased all contact with her father in October 1992. The following spring, Jones' continuing direction and support led Laura to file a complaint against her father for aggravated felonious sexual assault with the Amherst Police Department (police). Jones contacted the police to validate the truth of Laura's recovered memories, convey her belief that Laura was assaulted by Hungerford, and encourage his prosecution as a means of "empowering" her patient. Jones also met with the Hillsborough County Attorney to further assist in the prosecution.

Jones' actions in therapy and with the police led to indictments against Hungerford charging two counts of aggravated felonious sexual assault. In May 1995, the Superior Court (Groff, J.) ruled that Laura's "memories" of assault recovered during therapy were not admissible at trial because they were not scientifically reliable. This court affirmed. See State v. Hungerford, 142 N.H. 110, 134, 697 A.2d 916, 930 (1997).

Thereafter, Hungerford filed suit against Jones in the federal district court alleging that Jones' negligent treatment and diagnosis of his daughter resulted in false accusations of sexual abuse and criminal charges. Jones moved to dismiss the complaint, asserting that she owed Hungerford no duty of care. The district court then certified two questions to this court asking whether, and to what extent, a mental health care provider (therapist) owes a duty of care to the father of an adult patient when he is identified as the perpetrator of sexual abuse in the course of the patient's therapy. Both questions present issues of first impression.

II

"Whether a duty exists in a particular case is a question of law." Walls v. Oxford Management Co., 137 N.H. 653, 656, 633 A.2d 103, 104 (1993). This court has recognized that a professional owes a duty of care to third parties in limited circumstances. See, e.g., Simpson v. Calivas, 139 N.H. 1, 5-6, 650 A.2d 318, 322 (1994) (duty of attorney drafting will to third party beneficiaries); Spherex, Inc. v. Alexander Grant & Co., 122 N.H. 898, 903-04, 451 A.2d 1308, 1312 (1982) (duty of accountants to those relying on their work, regardless of privity). In so doing, we reasoned that the existence of a duty does not arise solely from the relationship between the parties, but also from the need for "protection against reasonably foreseeable harm." Morvay v. Hanover Ins. Cos., 127 N.H. 723, 725, 506 A.2d 333, 334 (1986). While "not every risk [of harm] that might be foreseen gives rise to a duty . . . a duty arises [if] the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous." Thibeault v. Campbell, 136 N.H. 698, 701, 622 A.2d 212, 214 (1993) (quotation and brackets omitted). Thus, parties owe a duty to those foreseeably endangered by their conduct with respect to those risks whose likelihood and magnitude make the conduct unreasonably dangerous. See Manchenton v. Auto Leasing Corp., 135 N.H. 298, 304, 605 A.2d 208, 213 (1992).

When determining whether a duty is owed, we examine the societal interest involved, the severity of the risk, the likelihood of occurrence, the relationship between the parties, and the burden upon the defendant. Williams v. O'Brien, 140 N.H. 595, 599, 669 A.2d 810, 813 (1995); see Restatement (Second) of Torts