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Bar News - December 13, 2002 NH Supreme Court Opinion Summaries
MOTION TO DISMISS - NEGLIGENCE - SPECIAL RELATIONSHIP DALIANIS, J. The plaintiff appealed the order of the Superior Court (McGuire, J.) granting the motion of the defendants to dismiss his negligence action. The plaintiff brought a common law negligence action against the defendants for their role in allowing a confrontation and subsequent attack of a co-worker and the decedent. The plaintiff alleged that the defendants, through their supervisors, knew of the dangerous situation between the co-worker and the decedent, but did not properly manage the danger. The defendants moved to dismiss the action, but while the motion was pending, the court granted the plaintiff leave to amend the writ. The court granted the motion to dismiss on the ground that the defendants had no duty to protect the decedent. Following the court's dismissal of the first amended writ, the plaintiff filed a second motion to amend which the court denied because there was no longer any writ to amend. The plaintiff argued on appeal that the dismissal of the first amended writ was error because the employment relationship in and of itself gave rise to a duty to protect against foreseeable third party criminal attacks and imposed upon the defendants the duty to protect the decedent from the co-worker's attack. The court was not persuaded by the plaintiff's argument that the employer/employee relationship was comparable to the school student relationship previously deemed "special" by the court. See Marquay v. Eno, 139 N.H. 708, 717 (1995). On this issue of first impression, the court declined to hold that the employment relationship qualified as a "special" relationship that created a duty to protect against foreseeable criminal attacks by third parties. Further, the court held that employers have no general duty to protect employees from criminal attacks, but that such a duty might arise if the employer unreasonably creates a condition of employment that foreseeably enhances the risk of criminal attack. Thus, the court found that the plaintiff did not allege a viable claim for negligence against the defendants under that liability theory. The plaintiff next argued that the conduct of the decedent's supervisors imposed a duty upon the defendants to protect the decedent from the co-worker's attack. Reasoning that the plaintiffs knew of the decedent's danger and of the prior history of dangerous incidents, the court held that the allegations established that the defendants owed the duty to protect him from attack. The court reversed the trial court's dismissal on two counts of the plaintiff's first amended writ and remanded. Duggan, J. The dissent opined that the court's holding regarding the employer's duty to protect the employee because he was in imminent danger and because the supervisors knew of the danger, seemed to place a duty upon the supervisors, as agents of the employer, to protect employees from criminal attacks by third parties.
PENSION BENEFITS - CONTRIBUTORY RETIREMENT SYSTEM BROCK, C.J. The petitioner appealed a decision of the Board of Trustees of the City of Manchester Employees' Contributory Retirement System (board) to retroactively revoke pension benefits he accumulated while working for the City of Manchester Employees' Contributory Retirement System (system). He also appealed the board's decision to reduce the amount of his pension. The Supreme Court vacated and remanded. The petitioner was employed by the City of Manchester (city), and as such, was enrolled in the city's retirement plan (plan). Later, the petitioner resigned from his city position and worked for the system office. He continued to contribute to the plan while working for the system. He was then elected as a board member. His election was challenged by an individual who claimed the petitioner was not a city employee. The board's legal counsel advised the board that the petitioner was a city employee who could be elected to the board. When the board later discussed developing a formal employee benefits package for system office staff, the board's legal counsel opined that system office staff were employees of the system rather than the city. Counsel urged "expedient remedial action by the Retirement System with respect to its current coverage of those non-governmental employees among its membership." No separate plan was established. The petitioner submitted a letter indicating he planned to retire, with a final retirement benefit calculation provided by the system. Four months after the petitioner began receiving his pension, the board told him that there were issues as to his eligibility. The board notified him that it was reducing his pension, because he was entitled to benefits only for his years as a city employee. After a hearing, the board concluded that system employees were not city employees and thus were prohibited from participating in the plan. On appeal the court first considered whether the petitioner was eligible to participate in the plan. The court concluded that the petitioner was not an employee of the city, and that the board was trustee of the plan. Additionally, the court concluded that the system is not an agent or department of the city, and that the system was intended to operate as an independent entity rather than as a municipal agency. As to the petitioner's argument that the system was intended to be a "city function" and that the city was responsible for paying the system's administrative costs, the court disagreed. Reasoning that receipt of compensation does not necessarily establish an employer-employee relations, and assuming the city was responsible for the system's administrative costs, the court found that the board's ultimate power undermined this argument. The court further disagreed that the legislature intended the system to be a city function based on the composition of the board. The court stated that the board's membership does not establish that the petitioner was a city employee. In response to the petitioner's argument that the board's interpretation and application of the plan leads to the conclusion that he was a member of the plan and entitled to receive benefits, the court held that system employees are not "employees of the city" for purposes of the plan. Thus it was incorrect for the board to grant the employees membership. The court concluded that the petitioner was not a city employee while he worked for the system. The petitioner then argued that the board should be estopped from denying him benefits because its conduct led him to believe he was eligible. The court responded that the estoppel argument should have been reviewed below, and remanded to the board for its consideration of the petitioner's estoppel argument. Dalianis, J., concurred that the petitioner is not an employee of the city of Manchester, but dissented on the basis that it was unnecessary to remand the case. The dissent stated that the court had a right to decide the issue as a matter of law, and concluded that the board could not be estopped from denying the petitioner pension benefits. Thus, the dissent believed that the board did not err in concluding that the petitioner was not eligible to receive pension benefits under the plan.
WAGE ADJUSTMENTS DALIANIS, J. The plaintiff, a temporary manual labor provider, appealed the decision of the Superior Court (Fitzgerald, J.) affirming an order of the defendant, the New Hampshire Department of Labor (DOL), requiring the plaintiff to make wage adjustments. The Supreme Court reversed. The plaintiff arranges for transportation to a job site for its workers who do not have their own transportation by either supplying a company van or by paying a co-worker who has a car to transport the other workers. The plaintiff compensates the driver by adding $4 per passenger to the driver's paycheck at the end of the day, and deducts $4 from the paycheck of each passenger. A DOL audit revealed that the plaintiff violated various aspects of RSA chapter 275 (1999 & Supp. 2000), and assessed civil penalties and wage adjustments. A DOL hearing officer concluded that the DOL had the required authority to enter the wage adjustments. The trial court affirmed the DOL's wage adjustment decision. On appeal the plaintiff argued that because no Labor Ready employee filed a wage claim with the DOL, the DOL had no statutory authority to independently initiate and adjudicate the claims. The court considered whether RSA 275:51 authorizes the DOL to initiate the wage adjustment action by considering the meaning of, "entertain and adjudicate claims for wages due under the provisions of this subdivision." See RSA 275:51, I. Agreeing with the plaintiff's argument that the language authorizes the DOL to serve as the adjudicative body when wage claims are brought by individual employees, the court stated that nothing in the statute authorizes the commissioner to bring a wage adjustment claim without express assignment from the employee. The court found that the DOL lacked statutory authority to order the wage adjustments and reversed the trial court's order affirming the award.
REAL ESTATE ATTACHMENTS DALIANIS, J. A judgment creditor and intervenor appealed a Superior Court (Murphy, J.) decision that his attachment on a property was second in priority to the plaintiff's attachment. In a divorce action against her husband, the plaintiff received a court-ordered attachment on a Rye Beach property. The property was owned by the Klaidonis Foundation, an entity established by the defendant. The plaintiff's writ of attachment and trustee process named only the defendant in the caption. The defendant was personally served with a copy of the writ, and the Klaidonis Foundation received service of the writ by certified mail. The intervenor, who was awarded a civil judgment against the defendant, filed an equity petition for ex parte attachment and trustee process against the defendant and the Klaidonis Foundation seeking to attach the Rye Beach property. The court granted the petition. The plaintiff, after learning of the intervenor's attachment, filed a motion to extend time to complete service of trustee process against the Klaidonis Foundation and to reinstate her attachment in original priority. The court granted the plaintiff's motion. The intervenor's motion to request that the court vacate its order was denied. Similarly, the intervenor's motions to request that the court issue final orders declaring his attachment on the Rye Beach property to have priority over the plaintiff's attachment was denied. His equity action appeal was also denied. In a divorce decree between the plaintiff and the defendant, the Superior Court determined that the plaintiff's attachment on the Rye Beach property had priority. On appeal the intervenor argued that the trial court erred in granting the plaintiff's attachment priority over his because: (1) the plaintiff failed to properly apply for trustee process against the Klaidonis Foundation; (2) he was the first to properly file his attachment and trustee process under race-notice principles; and (3) the equities did not favor granting the plaintiff relief under RSA 498:21. The Supreme Court stated that the purpose of recording rules is to provide the public with notice of a conveyance of or encumbrance on real estate. The court found that the defendant and the Klaidonis Foundation had notice of the attachment well before the intervenor obtained his ex parte attachment. Further, the court reasoned that the intervenor advocated in his ex parte petition that the defendant was the true owner of the property and the Klaidonis Foundation was essentially a "sham." Thus, the court concluded that the trial court's exercise of equitable discretion to protect the plaintiff's priority interest was sustainable on the record.
TERMINATION OF PARENTAL RIGHTS DUGGAN, J. The respondent appealed a Belknap County Probate Court (O'Neill, J.) order terminating her parental rights over her children, Craig T. and Megan T. See RSA 170-C:5, III, : 10 (1994 & Supp. 2001). The Supreme Court affirmed. The petitioner, the New Hampshire Division for Children, Youth and Families (DCYF), filed two neglect petitions against the respondent on behalf of her children. See RSA ch. 169-C (1994 & Supp. 2001). The district court found that the respondent had neglected the children. See RSA 169-C:18, :21. The district court ordered custody of the children to remain with DCYF, but allowed the respondent supervised visitation rights, and required the respondent to undergo a psychological evaluation and to cooperate with the DCYF. After the respondent failed to meet the court order on numerous issues and occasions, the district court found that the respondent was in non-compliance and ordered DCYF to establish a permanent plan for the children and to study the issue of "Termination of Parental Rights." The court again ordered the respondent to complete a psychological evaluation and to cooperate with DCYF. The respondent did not comply with the orders. DCYF established a permanent plan that recommended freeing Craig and Megan for adoption The district court ordered termination of the respondent's parental rights over Craig and Megan. On appeal, the respondent argued that the probate court applied the wrong legal standard when it granted the petition to terminate her parental rights. The respondent argued that a showing of "reasonable efforts" places a lower burden on DCYF than required by case law. See State v. Robert H., 118 N.H. 713, 719 (1978); see also In re Diana P., 120 N.H. 791, 798 (1980). The court disagreed and stated that the legislature provided the standards to be applied when the State seeks to terminate parental rights following a finding of neglect under RSA chapter 169-C. The court found that the probate court applied the correct standard. The respondent also argued that the evidence was insufficient to support the probate court's findings. The Supreme Court stated that the record demonstrates that she did not make any effort to comply with the court order for visitation. Although the respondent admitted to failing to obtain a psychological evaluation, she claimed it was not required because she had obtained two prior psychological evaluations in 1991 and 1994. The court disagreed that a psychological evaluation was irrelevant, because the prior evaluations were at least three years old, and therefore the district court was not unreasonable in ordering a current evaluation. As to the respondent's argument that the evidence did not support the trial court's finding that she failed to follow through with a domestic violence program, the court found that she did not appreciate the need to address the violence that occurred in her own family.
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