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Estate of Joshua T. v. State12/29/2003
priate foster home. The defendants moved for summary judgment, arguing the plaintiffs did not intend to offer expert testimony to support their negligence claim, and that the undisputed facts did not fall within the two recognized exceptions to the general rule articulated in McLaughlin v. Sullivan, 123 N.H. 335, 337 (1983), that precludes negligence actions for the suicide of another. The trial court granted the motion, and this appeal followed.
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. Sintros v. Hamon, 148 N.H. 478, 480 (2002). We affirm a trial court's decision if our review of the evidence discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. Because no one contends on appeal that any material facts remain in dispute, we need only determine whether the defendants were entitled to judgment as a matter of law. Del Norte, Inc. v. Provencher, 142 N.H. 535, 537 (1997). We review the trial court's application of the law to the facts de novo. Id.
The plaintiffs argue that expert testimony was not required to establish DCYF's negligence because, based upon the undisputed facts of the case, the jury could simply apply its "good judgment and common sense" to assess whether DCYF appropriately or negligently placed Joshua in the S. foster home. It specifically relies upon the fact that DCYF placed Joshua in the home knowing that the foster parents were not willing to provide care for a child with a history of attempted suicide and sexual abuse and failed to disclose Joshua's history. Assuming, without deciding, that lay testimony alone could establish that DCYF breached its duty of care when it placed Joshua in his last foster home, proving the causal connection between DCYF's negligent placement and Joshua's suicide requires expert testimony.
It is axiomatic that in order to prove actionable negligence, a plaintiff must establish that the defendant owed a duty to the plaintiff, breached that duty, and that the breach proximately caused the claimed injury. See Sintros, 148 N.H. at 480; Weldy v. Town of Kingston, 128 N.H. 325, 330 (1986). The proximate cause element involves both cause-in-fact and legal cause. Bronson v. The Hitchcock Clinic, 140 N.H. 798, 801 (1996); see Brookline School Dist. v. Bird, Inc., 142 N.H. 352, 354-55 (1997). Cause-in-fact requires the plaintiff to establish that "the injury would not have occurred without [the negligent] conduct." Bronson, 140 N.H. at 801. The plaintiff "must produce evidence sufficient to warrant a reasonable juror's conclusion that the causal link between the negligence and the injury probably existed." Id. Further, legal cause requires a plaintiff to establish that the negligent conduct was a substantial factor in bringing about the harm. Brookline School Dist., 142 N.H. at 354; see Petition of Haines, 148 N.H. 380, 382 (2002) (legal cause refers to substantial factor test). Although the negligent conduct need not be the sole cause of the injury, to establish proximate cause a plaintiff must prove that the defendant's conduct caused or contributed to cause the harm. Brookline School Dist., 142 N.H. at 355.
The question of proximate cause is generally for the trier of fact to resolve. See id. Expert testimony is required, however, to aid the jury "whenever the matter to be determined is so distinctly related to some science, profession, business or occupation as to be beyond the ken of the average layman." Powell v. Catholic Med. Ctr., 145 N.H. 7, 14 (2000). In medical malpractice cases, for example, expert testimon
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