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Bar News - July 27, 2001 Supreme Court Opinion Summaries TORTS - INHERENT RISK OF SKIING Jonathan Rayeski v. Gunstock Area/Gunstock Area Commission NADEAU, J. The plaintiff appealed a superior court order granting the defendant’s motion to dismiss. The supreme court affirmed. On appeal, the plaintiff argued that the trial court erred in: (1) holding that collision with a light pole is an inherent risk of skiing; (2) presuming that the plaintiff lost control before striking the light pole when that fact was not pleaded; and (3) ruling that the defendant did not owe the plaintiff a duty to pad the light pole. The supreme court affirmed, holding that the light pole, even if not specifically enumerated in RSA 225-A:24, nevertheless constitutes a risk encompassed by the statute. The statute does not limit the risks assumed to those enumerated therein. The plaintiff’s collision with the light pole does not differ from the risks enumerated in RSA 225-A:24. Light poles, like the lift towers and pole lines enumerated in RSA 225-A:24, need not be plainly marked or visible to constitute an inherent risk of skiing and like the hazards enumerated in RSA 225-A:24, the type of obstruction a skier can expect to encounter on a ski trail, and therefore an inherent risk of skiing. The supreme court also concluded that any mention of the plaintiff’s loss of control was unnecessary to the trial court’s decision, and therefore, even if erroneous, was harmless. Finally, the supreme court observed that facts supporting the plaintiff’s argument asserting the defendant assumed the duty to pad the light pole under a common law theory were not set forth in his writ and thus the trial court did not err in granting the motion to dismiss.
PROPERTY – TAX DEED - SUMMARY JUDGMENT J & N Fieldstone Supply, Inc. v. BHC Development Corp. BHC Development Corp. v. Town of Plaistow BROCK, C.J. BHC appealed from a superior court order granting summary judgment to J & N, and denying BHC’s cross-motion for summary judgment. The supreme court reversed and remanded. The action arose out of a dispute between BHC, J & N and the town concerning title to 5.5 acres of land in Plaistow. In August, 1977, the town purchased the land at a tax sale held by the town’s tax collector. The disputed parcel’s record owners at the time of the tax sale asserted that they never received notice of the tax sale or of the tax deed. They also asserted that they made all tax payments for the entire parcel of land and that they were never notified of any outstanding balances. In September 1977, the same parcel was conveyed by the record owners to BHC. After the town conveyed the parcel to J & N in 1998, J & N petitioned the superior court to quiet title to the disputed parcel. BHC counterclaimed to quiet title, it petitioned the court for a declaratory judgment against the town declaring that J & N’s tax deed was invalid because the town failed to provide adequate notice. After the court consolidated these actions, cross-motions for summary judgment were filed. Relying upon Town of Hudson v. Gate City Development Corp., the superior court ruled that RSA 80:39 (1991) barred BHC’s challenge to J & N’s deed because more than ten years had passed since the tax deed was recorded. The supreme court ruled that RSA 80:39 was not properly triggered in this case because viewing the facts in the light most favorable to BHC, the town did not provide actual or constructive notice to the record owners of the parcel either at the time of the tax sale or at the time of recording the tax deed.
LAND USE – SITE PLAN APPROVAL Star Vector Corporation v. Town of Windham & a. Windham Safety Coalition v. Town of Windham BRODERICK, J. In this consolidated appeal, plaintiff Star Vector Corporation (Star Vector) appeals a superior court decision affirming the decision of the Town of Windham Planning Board (planning board) denying Star Vector’s application for a site plan approval of an indoor shooting range. The lot for the proposed range is within a town business district, but abuts a residential district. The lot is also in close proximity to the lake serving the town’s water supply. The planning board denied the application for three principal reasons: (1) an unacceptable risk to public safety existed from accidental discharge of firearms and Star Vector did not propose any safeguards to diminish the risk; (2) the application failed to comply with the town’s noise ordinance; and (3) an unacceptable environmental risk existed that hazardous substances would escape into the air, soil and watershed. One reason the planning board denied Star Vector’s site plan application was the unacceptable risk it posed for the release of toxic and hazardous substances into the environment. Star Vector contended that this determination was unreasonable and illegal. The planning board received evidence regarding the dangers of lead contamination associated with shooting ranges. Specifically, this evidence revealed that when guns are fired they release airborne lead particles that can pose hazardous conditions both inside and outside of a range. The planning board heard conflicting testimony regarding air quality control and the effectiveness of air filtration systems in shooting ranges. Based upon the record, the supreme court concluded that the trial court could have reasonably determined that the planning board’s decision was not unreasonable or the result of legal error. Where at least one of the reasons offered by the planning board supports its decision, an appeal from that decision must fail.
DOMESTIC VIOLENCE - JURISDICTION - CHILD CUSTODY- Beth Fichtner v. Gordon Pittsley, Jr. DUGGAN, J. The defendant appealed a district court order granting a petition for a restraining order awarding custody of the parties’ minor child to the plaintiff. The parties were divorced in 1999. As part of the divorce decree, the superior court awarded custody of the parties’ minor child to the defendant. In June 2000, the plaintiff filed a domestic violence petition in district court seeking a restraining order against the defendant. Following a hearing, the district court found that the plaintiff was abused within the meaning of RSA chapter 173-B. The district court issued a restraining order and transferred custody to the parties’ minor child from the defendant to the plaintiff. The supreme court vacated the custody award holding the district court exceeded its power to grant relief under the statute because an order awarding the defendant custody had already been issued by the superior court under RSA chapter 458. See RSA 173-B:5, IV. The supreme court affirmed the district court’s finding of abuse, concluding the evidence presented to the district court was sufficient to support the finding.
TRUSTS - SPECIAL NEEDS - REVOCABILITY Shirley C. Lanoue, by and through her legal guardian, Office of Public Guardian v. Commissioner, Social Security Administration DUGGAN, J. The United States District Court for the District of New Hampshire certified the following question of law: Whether a "special needs trust" created pursuant to 42 U.S.C. § 1396p may be revoked by the beneficiary or her guardian where: (1) the trust instrument states that the trust is irrevocable; (2) the trust was funded with the beneficiary’s assets; (3) the trust was created at the request of the beneficiary’s guardian after the trust’s primary beneficiary was found by the probate court to be incapacitated; and (4) the trust instrument specifies that when the trust is terminated, any remaining assets are to be paid to the primary beneficiary’s "heirs at law in accordance with RSA § 561:1, as if she died intestate." In determining whether the settlor intended that the trust be revocable, the supreme court looked to the terms of the trust as interpreted in the light of all the circumstances and other competent evidence of the settlor’s intent with respect to the trust. In this case, the settlor intended to establish a trust consistent with 42 U.S.C § 1396p with the understanding that funds received by trustee are, where possible, to supplement not replace governmental assistance and benefits to which the plaintiff might be entitled to receive. In furtherance of this purpose, the settlor explicitly provided that the trust was irrevocable, and that the beneficiary had neither ownership interest in the trust nor the ability to influence distributions, invade the principal, or direct the disposition of either the assets or the income. The settlor’s intent was clear. Accordingly, the supreme court held that under New Hampshire law, this special needs trust is irrevocable.
JUVENILE – CERTIFICATION AS AN ADULT In Re Erik M. DALIANIS, J. The juvenile appealed from a superior court order accepting transfer of his case under RSA 169-B:24 following a district court hearing certifying him as an adult for trial. The juvenile was charged with negligent homicide (driving while intoxicated) following a crash in which his friend was killed. At the time of the crash, the juvenile was nearly seventeen. The supreme court reversed and remanded. The district court granted the state’s petition to certify the juvenile as an adult, noting that because of the nature of the charge and the juvenile’s age, it presumed that the factors listed in RSA 169-B:24, I, supported transfer. The district court’s order did not contain factual findings or establish a nexus between the evidence and the statutory criteria for transfer. The supreme court found the order entirely conclusory, containing no factual references whatsoever, and therefore concluded that it violated RSA 169-B:24, II. Under RSA 169-B:24, the superior court sits as an appellate court, reviewing the district court’s order for an abuse of discretion. As such, the superior court does not have the authority to review the record and apply the statutory criteria in the first instance. Thus, the supreme court concluded that when confronted with a district court order that did not comply with RSA 169-B:24, the superior court should have remanded to the district court for appropriate findings.
CRIMINAL - AGGRAVATED FELONIOUS SEXUAL ASSAULT The State of New Hampshire v. Kyle Krueger NADEAU, J. The defendant appeals his conviction following a jury trial in superior court on eighty counts of aggravated felonious sexual assault, see RSA 632-A:2, seven counts of attempted aggravated felonious sexual assault, see RSA 629:1, two counts of felonious sexual assault, see RSA 632-A:3, and one count of simple assault, see RSA 631:2-a. The charges were brought after the police viewed a videotape depicting the defendant, over the course of twenty-five minutes, lying on a bed with a two-year-old child using various phrases or implements designed to coax the child to perform oral sex upon him. Prosecutors indicted the defendant on ninety counts, using the defendant’s coaxing phrases and various enticements to separate the offenses under the Criminal Code. The defendant argued the State’s decision to prosecute ninety separate counts for his actions over the course of twenty-five minutes was an unjust application of the statute. The supreme court affirmed concluding the evidence to sustain each of these indictments is different from the evidence required to sustain any of the other indictments, and thus each of the separate indictments may be sustained.
MANUFACTURED HOUSING PARKS - Stephen Hynes, as Trustee for Holiday Acres Joint Venture Trust d/b/a Holiday Acres Mobile Home Park v. Karen D. Hale & a. DALIANIS, J. The plaintiff appeals a superior court order affirming the decision of the New Hampshire Board of Manufactured Housing (board) regarding a park rule requiring the defendant to modify her fence. The supreme court affirms in part and reverses in part. Hale, a tenant of Hynes’ manufactured housing community, purchased a manufactured housing unit with a six-foot-high fence from prior tenants. When the fence fell into disrepair, Hale replaced portions with six-foot-high fencing. Hynes notified Hale that the fence as repaired violated park rule 6(k), which required fencing not exceed four feet in height, and that Hale had to remove the new sections of fence and replace them with four-foot fencing. Hale did not comply and Hynes issued a notice to quit. The board enjoined Hynes from requiring Hale to install replacement fencing of less than six feet and from taking any legal action against her based upon the violation of park rule 6(k). Hynes moved for rehearing, which the board denied, and then appealed to the superior court, which affirmed the board’s decision. On appeal, Hynes argues that: (1) the statutes establishing the board violates the separation of powers doctrine set forth in the New Hampshire Constitution, see N.H. Const. pt. I, art. 37; (2) the board’s decision exceeded its jurisdiction because the issues raised in Hale’s complaint were related to an eviction action; (3) the board erroneously found that park management had impliedly permitted Hale to maintain the fence’s original height; and (4) the board erroneously issued injunctive relief. The supreme court ruled that the board’s existence and establishment did not violate the separation of powers because the board is empowered only to decide claims arising under statutes governing manufactured housing parks. Granting an administrative body authority to resolve factual disputes underlying a purely statutory right violates no constitutional command. The supreme court also concluded that the board had jurisdiction over Hale’s complaint because when Hale filed her complaint, there was no pending eviction action. The supreme court concluded that the board reasonably could have found that Hale had implied permission to maintain the fence at its original height because Hynes approved Hale’s purchase of the manufactured housing unit, and Hynes was aware of the exact height of the fence when Hale purchased it. Finally, the supreme court ruled that because the board had no authority to issue injunctive relief, it was error for the court to affirm the board’s issuance of an injunction.
TORTS – NEGLIGENCE - MEDICAL MALPRACTICE Normand C. Francoeur, Administrator of the Estate of Joyce Francoeur and Individually v. Jurgen Piper M.D. & a. DUGGAN, J. The plaintiff appealed following a jury verdict in superior court and argued that the trial court erred in instructing the jury regarding the elements of medical negligence. The supreme court reversed and remanded. Mrs. Francoeur suffered a broken right ankle when she fell from her wheelchair as it veered off a ramp. At the time, she suffered from multiple complications associated with her diabetic condition. In the emergency room, Dr. Piper treated her ankle fracture by applying a cast. Later, upon removing the cast, Dr. Piper found an area of necrotic skin. Despite attempts to ward off infection, Mrs. Francoeur’s leg became gangrenous and later was amputated. The plaintiff filed this medical malpractice claim alleging that Dr. Piper failed to act according to the standard of reasonable professional practice in his treatment of Mrs. Francoeur’s fractured ankle. The supreme court rejected the plaintiff’s argument that the trial court erred in instructing the jury on common law professional negligence. The supreme court, however, agreed that the trial court erred when it instructed the jury that "a mere error in judgment, made in the proper exercise of judgment, is not professional negligence," because the "mere error of judgment" instruction is reasonably capable of confusing or misleading the jury regarding the reasonable standard of professional practice and whether a defendant failed to act in accordance with that standard. In this case, the plaintiff alleged that throughout the course of treating Mrs. Francouer, Dr. Piper failed to adequately take notice of her diabetic condition and the complications associated with it. If the jury found that Dr. Piper met the appropriate standard of care for repairing ankle fractures, but was ignorant of the effect her diabetes may have had on the course of treatment, the "mere error of judgment" instruction could have caused the jury to mistakenly conclude that negligence regarding Mrs. Francoeur’s diabetic condition was not a breach of the standard of care. Therefore, the supreme court ruled that the erroneous jury instruction was a substantial error that could have misled the jury when it determined whether Dr. Piper failed to meet the standard of care.
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