 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 
|
|
 |
||||||||||||||||
|
Bar News - February 21, 2003 NH Supreme Court Opinion Summaries NEGLIGENCE - LOSS OF PARENTAL AND SPOUSAL CONSORTIUM Donald Harrington & a. v. Brooks Drugs, Inc. & a. NADEAU, J. Plaintiffs Robert E. Ricci, Jr. and Marie T. Ricci, assignees of the claims of Donald Harrington, and spouse and children of Donald Harrington, appealed decisions of the Superior Court (McHugh, J.) dismissing a negligence claim and loss of parental and spousal consortium claims, and dismissing the spouse and children as named plaintiffs. The Supreme Court affirmed in part and reversed in part. When driving home from Brooks Pharmacy following a regular overnight shift, the plaintiff fell asleep. His automobile crossed into oncoming traffic and struck Robert Ricci's automobile injuring both men. Ricci sued Harrington, Brooks Drug, Inc., and Maxi-Drug, Inc. Both cases settled before trial. In a settlement agreement with Harrington, Ricci obtained an assignment of any damage claim Harrington might have against Brooks Drugs. This action was brought by Ricci and his wife in their capacities as Harrington's assignees. Harrington's wife joined the action asserting loss of consortium, and Harrington's children joined asserting claims for loss of companionship and society of their father. The superior court dismissed the parental consortium claim, held that a prior court determination that Harrington was injured outside the scope of employment did not collaterally estop the defendants from arguing the opposite, dismissed Harrington's negligence claim, and dismissed the spousal consortium claim. In an issue of first impression, the court declined to create a cause of action for a dependent child's loss of society of a parent injured as a result of negligent conduct. The court found no support in common law, statutes, or Restatement (Second) of Torts for the expansion of liability. The court further expressed a public policy concern for burdening the public through increased insurance premiums or the danger of people choosing to go without insurance. The court agreed with the plaintiffs' contention that the trial court erred when it determined that Harrington's negligence claim was barred by provisions of the Workers' Compensation Law. An injury is actionable under the Workers' Compensation Law only if it arises "out of and in the course of employment." RSA 281-A:2, CI (1999 & Supp. 2001). Harrington was not on a special errand or duty when the action accident arose, and the overnight hours were his regular schedule. Harrington was not engaged in "personal activities reasonably expected and not forbidden by his employer." His commute was typical of a requirement for most jobs, and therefore could not be deemed beneficial to both employee and employer. Therefore, the court held that Harington's negligence claim was not barred by the exclusivity provisions of RSA 281-A:8 Finding no parental consortium claim recognized in New Hampshire common law, the court declined to address whether Harrington's children were improperly removed as named parties. As to the spousal consortium claim, the court reversed the dismissal of the spousal claim, because it also reversed the dismissal of Harrington's negligence claim.
EASEMENT NADEAU, J. The State appealed decisions of the Superior Court (Brennan, J.) holding that RSA 228:60-a, V (1993) violates the plaintiffs' due process and equal protection rights under the New Hampshire Constitution. See N.H. CONST. pt. I, arts. 12, 15. The Supreme Court reversed. Plaintiffs are dairy farm operators in Walpole. In 1846, the State acquired a railroad easement, by eminent domain, through property currently owned by the plaintiffs. The easement has been inactive for more than twenty-five years. RSA 228:60-a, enacted in 1981, provides that rail properties acquired by the State or by the commissioner are owned in fee simple absolute. Reversionary interests were declared extinguished as of June 18, 1991 or the date of acquisition, whichever was later. See RSA 228:60-a, V (1993). The statute mandates that the commissioner must give public notice, and gives appropriate guidelines for petition. The Department of Transportation appropriately published notice, declaring ownership in fee simple absolute of the easement across plaintiffs' land. Plaintiffs petitioned for damages pursuant to RSA 228:60-a, V, and petitioned separately to quiet title. The trial court concluded that the State had no rights in the plaintiffs' property underlying the railroad easement, and that the purported taking violated the plaintiffs' due process and equal protection rights. As to the plaintiffs' contention that the trial court erred in holding that the easement over their property had not been abandoned, the court agreed that the State could not lose an easement by abandonment; rejected the plaintiffs' argument that the State's easement was extinguished when the railroad ceased using the right-of-way; explained that the State is not required to take affirmative action in order to maintain its interest in the routes or to exercise a right of reverter; and concluded that the State's easement was not extinguished through the failure to "repossess" it from the railroad. As to the plaintiffs' due process claim, the court agreed with the State that the plaintiffs lacked standing to challenge the form of notice, because they received actual notice through the newspaper publication, and suffered no injury. Thus, the court reversed the trial court's holding on that issue. As to the State's challenge to the trial court's equal protection ruling, the court followed its holding in Gazzola v. Clements, 120 N.H. 25, 29, 411 A.2d 147 (1980), to find that "persons whose land is about to be taken by the State are 'similarly situated.'" Next, the court explained that ownership of private property is a fundamental right requiring a strict scrutiny analysis. Even under such scrutiny, the court held that failure to provide a pre-taking hearing does not violate equal protection, and reversed the trial court's decision on that issue. The court considered the plaintiffs' contention that RSA 228:60-a violates equal protection, and determined that the court is not in the position to determine boundary lines or public purpose land needs. Rather, the court stated that this is left to the legislature. In sum, the court held that the plaintiffs' due process and equal protection challenges failed and concluded that the State took the railroad right-of-way through the plaintiffs' property in fee simple absolute. The court thus declined to address the trial court's ruling regarding the scope of the original easement, and rejected the trial court's award of attorney's fees.
DIVORCE DECREE - CHILD SUPPORT - COLLEGE EXPENSES DALIANIS, J. The respondent appealed an order of the Superior Court (Abramson, J.) requiring him to pay certain monthly expenses towards his adult child's college education. The Supreme Court reversed and remanded. The parties, who had two minor children at the time of their divorce, divorced in 1991. The respondent was ordered to pay certain obligations, including "the entire expense of any private schooling or college for the two girls." In 2000, one daughter who was an adult by this time, was living with the petitioner and commuting to college. The petitioner filed a motion requesting that the respondent be required to continue paying child support for the daughter while she attended college. The trial court dismissed the petitioner's request for child support, but ordered the respondent to pay "reasonable college expenses" for the daughter, including expenses for room and board while she lived at home with the petitioner. The respondent argued in a motion for reconsideration and clarification that the trial court lacked jurisdiction to order him to pay for certain items that were not educational expenses. He further argued that he should not be responsible for his daughter's educational expenses when she was not in school. The court found that the defendant was not responsible for paying an allowance, and that he was responsible for educational expenses during college. The defendant's motion was otherwise denied. On appeal, the respondent argued that the trial court erred in making him pay for items that were not educational expenses. In an issue of first impression as to what constitutes "educational expenses," the court held that "educational expenses" are "those expenses that are directly related to the child's college education." The court included in its definition tuition, books, room, board, and other directly related fees. The court did not, therefore, find the respondent responsible for items such as transportation costs, medical expenses, and clothing, which would be more akin to general support and maintenance. With respect to room and board, the court held that the respondent was not required to pay an amount greater than he would be required to pay if the child resided on campus in college housing.
ASSAULT - EVIDENCE DALIANIS, J. The defendant was convicted by a jury trial (Perkins, J.) of second degree assault, see RSA 631:2 (1996), and simple assault, see RSA 631:2a (1996). The Supreme Court affirmed. A male individual went to the defendant's residence to help the defendant's wife with gardening. When the defendant found out by telephone that the man was there, he rushed home, confronted the man, and yelled at him to get off of his property. The two men swung at each other, and the defendant struck the man. When the defendant's wife came to apologize to the man, the defendant pushed his wife and fractured her arm. Their daughter then called 911 for help, stating that her dad came home drunk and that he had harmed her mother and the other man. The police sergeant testified at trial about what he was told at the scene. Prior to trial, the State filed a motion in limine to admit the 911 tape. The defendant argued that the tape was not admissible under Rule 403. The trial court admitted the tape, ruling that its probative value was not substantially outweighed by the risk of unfair prejudice. The court did, however, redact certain statements that were allegedly prejudicial. The defendant did not object at trial to the playing of the tape, but objected to the jury having access to the tape at deliberations. The trial court denied the defendant's motions for insufficient evidence that he hit the man or that the contact was unprivileged. On appeal, the defendant argued that the trial court erred by admitting the 911 tape under Rule 403. The court upheld the admission of the tape reasoning that the tape was a contemporaneous account of the events. Importantly, the court found the probative value of the tape strengthened since the State's witnesses were reluctant to testify against the defendant, and concluded that the trial court did not commit an unsustainable exercise of discretion in admitting the tape at trial. The court expressed concern that the prosecution played the tape three times during trial. Because the defense counsel did not object at trial or during the motion in limine, the court did not consider this on appeal. As to the defendant's argument that certain statements should have been excluded as hearsay, the court concluded that many of the statements provided background for the 911 call, rather than being offered for the truth of the matter asserted. The defendant's final argument was that there was insufficient evidence to support his conviction of simple assault against the man. Based on written statements and the daughter's 911 call, the court found the evidence sufficient to support the jury's verdict that the defendant committed simple assault.
EVIDENCE - PRIOR BAD ACTS NADEAU, J. Following a jury trial in Superior Court (Brennan, J.), the defendant was found guilty of seventeen counts of aggravated felonious sexual assault and four counts of misdemeanor assault. See RSA 632-A:2, :4 (1996). The Supreme Court affirmed. After marrying the victim's stepmother in 1980, the defendant adopted her daughter. The defendant was charged that he repeatedly assaulted his stepdaughter over a six-year period. When the victim was ten years old, the defendant moved out of the home and the assaults ended. The victim reported the assaults approximately seven years later. Prior to trial, the State sought admission of evidence of uncharged assaults, through a motion in limine, under New Hampshire Rules of Evidence 401, 402, and 403. The state argued that the evidence was relevant to show how and why the victim felt as she did during the period of the assaults, and proffered that the victim would testify that she feared resisting and reporting the assaults. The defendant argued that the evidence was inadmissible under New Hampshire Rule of Evidence 404(b). The trial court found the evidence admissible under Rules 401, 402, and 403 for the purpose of explaining the victim's reporting delay. Additionally, the trial court found the evidence relevant for the jury's decision as to the victim's credibility and that it was "more probative than prejudicial to the defendant." The court agreed with the defendant's argument that the trial court should have conducted an analysis under Rule 404(b), but explained that the court will not reverse the trial court when its analysis reaches the correct result and valid alternative grounds exist to reach that result. The court noted that the trial court made findings of the relevance of the physical abuse under Rules 401 and 403, and concluded that the evidence was admissible under 404(b). The evidence was relevant as to the victim's delay in reporting the abuse, not to show that the defendant had a violent character or that he acted in conformity with that character by sexually assaulting the victim. The court rejected the defendant's argument that the trial court erred in barring the testimony of two defense witnesses. The defendant failed to establish the foundational predicate necessary for the admission of the reputation evidence.
UNINSURED MOTORIST NADEAU, J. The plaintiff appealed a Superior Court (Brennan, J.) finding of no uninsured motorist (UM) coverage for the decedent under a policy issued by the defendant. The Supreme Court affirmed. The trial court issued summary judgment on the following facts. The decedent was killed in a single vehicle accident while a passenger in a car owned by a driver with a suspended license. The driver had an insurance policy in force at the time of the accident that provided automobile liability and UM coverage. The defendant denied the plaintiff UM coverage because liability coverage for the driver was excluded for an insured while driving with a suspended or revoked license. The plaintiff filed for declaratory judgment. The trial court held that Prudential was not required to provide UM coverage to the plaintiff. As to the plaintiff's argument that the UM exclusion was ambiguous and should be construed in favor of the insured, the court considered the argument waived, since the plaintiff conceded at oral argument that there was no ambiguity. The plaintiff next argued that the exclusion was void because it conflicted with RSA 264:15 (Supp. 2001). The court stated that it was not at liberty to find UM coverage when it is not required by the statute, or to read into the statute a prohibition of an exclusion that is not expressed or implied. The court further concluded that where a valid policy exclusion bars liability coverage in a particular situation, RSA 264:15, I does not mandate UM coverage for the same injury. The court held that the liability exclusion for a driver under license suspension is valid. In addition, the court concluded that the legislature left insurers free to exclude liability for drivers with suspended licenses.
CONTRACT - ORDER NISI NADEAU, J. The petitioner, the Office of the Consumer Advocate (OCA), appealed a decision of the New Hampshire Public Utilities Commission (PUC), denying the OCA's motion for a hearing regarding the approval of an amendment to a special contract between the respondents, Freudenberg-NOK and Public Service Company of New Hampshire (PSNH). The supreme court affirmed. PSNH and Freudenberg-NOK entered into a special contract under which PSNH provided discounted energy rates as an incentive. The PUC found the discounted energy rates to be in the public interest, and approved the special contract. PSHN then submitted to the PUC an amended contract requesting that the discounted rates be extended to include Freudenberg-NOK's other new plants. The terms and conditions of the amended contract were the same. The PUC found the amended special contract to be in the public interest. The OCA argued that the amended special contract was a new contract, and that the PUC's approval of the amendment by order nisi denied ratepayers their statutory right to a hearing. The court found that the amended special contract was not a new contract, and that neither due process nor property rights were violated by the PUC's decision to approve the amended special contract without a hearing.
TOWN ORDINANCE - RACETRACK DUGGAN, J. The plaintiff appealed a decision of the superior court (O'Neill, J.) upholding the validity of a race track ordinance enacted by the defendant. The supreme court affirmed. The plaintiff informed the planning board that he intended to build and operate a racetrack on his land. No zoning laws, ordinances, rules, or regulations existed in the town that would have prevented the plaintiff's venture. After learning of the plaintiff's intentions, the board of selectmen established a Race Track Ordinance Committee to draft an ordinance for the town. The selectmen adopted the ordinance and the voters subsequently adopted the ordinance. The plaintiff applied to the selectmen for a permit, which the selectmen denied. The plaintiff petitioned in superior court for a declaratory judgment, asserting that the ordinance was unconstitutional on its face and as applied to his property. On appeal the plaintiff argued that: (1) the superior court did not use the proper standard of review in determining the constitutionality of the ordinance; (2) the town did not follow proper procedures in enacting the ordinance; and (3) the ordinance, even if validly enacted, should not apply to the plaintiff because he had a vested right to complete construction and operate the race track and because it was adopted in a bad faith attempt to prohibit a permissible use of his property; and (4) the ordinance is impermissibly vague. As to the standard of review, the court upheld the rational basis test as the standard for substantive due process challenges to zoning ordinances. The court concluded that the plaintiff did not adequately preserve the substantive due process claim below, and therefore declined to address it. The court found that the town adequately notified the residents that the ordinance would be voted on at the town meeting, and thus, the procedures were sufficient to meet procedural due process requirements. The court found that the plaintiff's argument that he had a vested right to operate a race track on his property was without merit, as the plaintiff had not begun clearing trees or moving earth until after the ordinance was adopted. Because the voters had the decision as to whether to enact the ordinance, the plaintiff's bad faith argument was without merit. The court agreed that the standards under the ordinance were not specific, but held that a lack of guidance under the ordinance did not render the ordinance unnecessarily vague. Instead, the court found that a lack of specificity would allow selectmen to exercise their discretion in assessing a race track proposal. Finally, the court determined that the plaintiff was not due attorney's fees because he was not the prevailing party.
|
|
Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store New Hampshire Bar Association |
