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Bar Journal - December 1, 2000

Lex Loci: A Survey of Recent NH Supreme Court Decisions


The recent decisions of the Supreme Court include many by superior court judges appointed to the appellate panel by virtue of RSA 490:3, as well as opinions of the Court argued before a less than majority of the present Supreme Court Justices, but joined in by the two new Justices (Nadeau and Dalianis) by agreement of the parties. In the cases where the present Justices had not sat on the cases, they presumably listened to the previously taped oral arguments made by the parties at the time the case was argued. This approach appears to be a reasonable method to reduce the tremendous backlog of cases in our Supreme Court without adversely affecting the rights of parties.

This Court does not seem reticent in stepping up to the difficult issues upon which it is called to decide. Such an example is Thomas Tool Services, Inc. v. Town of Croydon, decided August 28, 2000, where the Court upheld a superior court ruling that the alternate tax procedure for towns provided by RSA 80:58-:87 was unconstitutional. Under the alternative tax lien procedure, an affidavit of the execution of the tax lien is delivered by the tax collector to the municipality on the day following the last date for payment of taxes as stated in the notice required by RSA 80:60 and the tax collector is authorized only to execute a tax deed of a 100% common and undivided interest in the property. RSA 80:61. Not to put too fine a point on it, this procedure can result in a substantial gap between the tax bill paid and the value of the property. For example, in the case before it, in 1983 the plaintiff tax payer had paid at least $65,000 to purchase real estate in Croydon. The taxpayer failed to pay real estate taxes in later years as a result of a change in residence of the taxpayer. The property was sold to the town by tax deed in 1992 for taxes unpaid of $370.26. The taxpayer plaintiff learned of the tax deed in January of 1995 and offered to redeem the property but the defendant refused and the present case resulted. The Court stated that it was "squarely confronted with the issue of whether the alternative tax lien procedure violates the takings clause [Part I, Article 12] of the New Hampshire Constitution. We hold that it does." The Court held that "[a]ssuming that the property is worth substantially more than the $370.26 that the defendant [town] paid for it, [isn't that a "priceless" understatement?] the defendant has realized an enormous surplus. While we do not condone delinquent taxpayers, the amount of surplus the defendant realized results in an unduly harsh penalty."

The Court distinguished cases finding to the contrary in other jurisdictions, stating that those holdings were based on the Fifth Amendment of the United States Constitution, not upon the New Hampshire Constitutional provision before the Court. On another issue, an amicus, New Hampshire Legal Assistance, had argued that the alternative tax lien procedure also violated the equal protection guarantees of our State Constitution but the Court held that since that issue had not been raised by either party, it "is not properly before us" (emphasis added).

A "must read" case that will kill you is Hopwood v. Pickett,1  decided August 23, 2000. This case is only the second Supreme Court case2  in our State involving the imposition of a constructive trust against an alleged murderer/slayer who seeks to inherit from his victim. The Court had before it the issue of the possible unjust enrichment of such a slayer, the Court stating that it had previously held "that a constructive trust is the appropriate remedial device to prevent a slayer from enjoying unjust enrichment by inheriting the victim's property. The slayer is unjustly enriched in the sense that he or she hastens acquisition of estate property, thereby avoiding the risk of dying first or being disinherited." In the present case, an action by a sister against her brother, the sister sought to prevent her brother from inheriting from their murdered brother on the basis that the sister alleged there was sufficient evidence to show that the defendant brother had intentionally killed the other brother. The probate court had denied the petition for constructive trust and the issue in the high court involved issues of the standard of proof to impose a constructive trust. The Court acknowledged that the general rule in New Hampshire in actions seeking to impose a constructive trust is that the plaintiff seeking the trust must prove by clear and convincing evidence that such a trust is warranted. The Court distinguished constructive trust cases based upon an abuse of a confidential relationship or the acquisition of property by mistake. In these cases, the plaintiff seeks to force a transfer of title or to redirect a transfer of property. The imposition of this higher standard in such cases "reflects a policy favoring security of title and ownership, as well as a reluctance to forge beyond the grantor's apparent intent in order to work a divestiture at equity." A unanimous Supreme Court, speaking through Justice Horton, found that this public policy rule did not apply in a slayer's inheritance case

because the aggrieved party does not challenge record title, a written expression of intent, or an absolute transfer. Rather, the nature of the claim is that the slayer should be disqualified for wrongfully causing the event that accelerated the inheritance....The policies supporting the use of the clear and convincing standard in our past constructive trust cases have no application in this context; therefore, the usual preponderance standard controls.

The Court reversed and remanded the case to the probate court in light of its rulings.

Trull v. Volkswagen of America, Inc., decided September 28, 2000, is an opinion by Justice Nadeau answering a question of law certified to the Court by the United States Court of Appeals for the First Circuit, whether

[u]nder New Hampshire law, in a crashworthiness or enhanced injury case, does the plaintiff bear the burden of demonstrating the specific nature and extent of the injuries attributable to the manufacturer, or does the burden of apportionment fall on the defendant once the plaintiff has proved causation?

The Court unanimously concluded that the defendants bear the burden of apportionment once the plaintiff proves causation, where in this diversity products liability case the plaintiffs were severely injured in an automobile crash and contended that the defendant car manufacturer was liable in "negligence and strict liability because the automobile was not crashworthy."

The plaintiff's theory of liability for defective design is commonly referred to as the "crashworthiness," "second collision," or "enhanced injury" doctrine:

The crashworthiness doctrine 'extends the scope of liability of a manufacturer to the situations in which the construction or design of its product has caused separate or enhanced injuries in the course of an initial accident brought about by an independent cause'....The doctrine is implicated, not because the design caused the accident,...but because, as a result of the second collision, the plaintiffs suffered either a more severe injury or an injury they otherwise would not have received due to the defective design....Consequently, the plaintiffs seek damages from the defendants for at least a portion of their injuries.

The Court first had to determine whether under New Hampshire law a manufacturer may be held liable for enhanced injuries arising from a defective design. The Court recognized that while there were two different approaches to the problem in American jurisdictions, it would adopt the rule that "in a crashworthiness case, a 'manufacturer should be liable for that portion of the damage or injury caused by the defective design over and above the damage or injury that probably would have occurred as a result of the impact or collision absent the defective design.'"

Turning to the crucial question of the burden of apportioning damages when the plaintiffs receive injuries "that are indivisible" (the usual case, the author would think), the Court adopted a liberal and commendable approach based on the Restatement (Third) of Torts and concluded that "the plaintiffs must prove that a 'design defect was a substantial factor in producing damages over and above those which were probably caused as a result of the original impact or collision. Once the plaintiff[s] make[] that showing, the burden shifts to the defendant[s] to show which injuries were attributable to the initial collision and which to the defect.'" In summary, this case represents a substantial enlargement of our negligence and strict liability law and brings our law in conformance to what appears to be the majority of jurisdictions which have decided the issue.

The Supreme Court had a case of first impression in State v. Leiper, decided August 31, 2000. In a unanimous opinion by Justice Horton, the Court answered the question whether a search warrant to search premises and not a person ("a premise only search warrant") authorized the search of a person or an object possessed by a visitor of the lessee of the searched premises. In this case, a closed knapsack, owned by the defendant, was found located on a couch next to the defendant, the defendant being a guest of the lessee. The knapsack contained "hallucinogenic mushrooms" [Wow-is the author behind the times-mushrooms no less, not crack or heroin. Only in kinky Gilford, New Hampshire can mushrooms constitute a public health menace] and had identifying tags showing it belonged to the defendant. The Court had two rules to choose from in deciding "[w]hether a warrant authorizing the search of a premises includes the authority to search a container owned by a visitor" and chose the "physical proximity/possession" test over the "relationship/notice" test. The State had argued for the easier to apply possession test and the Court agreed, finding that the relationship/notice test was "so nebulous it provides little guidance to police officers or trial courts" while the physical proximity/possession "test will minimize the potential for fraud and gamesmanship during the execution of search warrants when parties not named in the warrant are present at the location of a search." In a nutshell, the physical possession or proximity test imposes the sole limitation that the police

may not search items which are worn by or within the physical possession of persons whose search is not authorized in the warrant. Such belongings (for example jackets and purses) are considered 'an extension of the person' and therefore not searchable under a premises only warrant. However, the same items may be searched, as they are considered just another part of the premises, if they have been set down, i.e., if the visitor has relinquished control over them.

The Court, under the proximity/possession test, upheld the search of the knapsack.

Timid this Court is not. In another case of first impression, Bennett v. Lembo, decided October 5, 2000, the Court had before it the question whether New Hampshire recognized damages for the loss of enjoyment of life where the plaintiff has suffered permanent injuries as a result of the defendant's legal fault. The trial court had instructed the jury that such damages were compensible. The Supreme Court, speaking unanimously through Justice Nadeau, acknowledged that the Court in the recent Marcotte Case had recognized that the loss of life damages were properly compensible but the Supreme Court, in the earlier case, had declined to address the existence, nature and scope of such damages. Now addressing that issue as a case of first impression, the Supreme Court, as had the trial court, ruled in a unanimous opinion by Justice Nadeau that a loss of enjoyment of life damages are distinct from the claim of economic loss and conscious pain and suffering and held that:

Damages for loss of enjoyment of life compensate a plaintiff for the lost ability to engage in activities that once brought pleasure. The inability to engage in certain activities in the natural result of the incapacity that an impairment award is designed to compensate....As such, 'the degree of a permanent injury is measured by ascertaining how the injury has deprived the plaintiff of his customary activities as a whole person'.... Accordingly, we agree with those courts that have found damages for loss of enjoyment of life to be a component of permanent impairment....We leave for another day the question of whether a party can obtain loss of enjoyment of life damages for a non-permanent impairment.

In another development airing from the wake of the legislature's investigation of the New Hampshire Supreme Court via Chief Justice Brock impeachment trial, The Union Leader and other zealots in the legislature, in a display of investigative resource, learned during the impeachment proceedings that the Supreme Court had a special docket named the "Special Matters Confidential (SMC) Docket." Much was made of this in the press, but out of all of the ruckus, little emerged. It appeared that the Special Matters Confidential Docket was created in 1985 to designate cases which were confidential because of the then confidentiality rule of the Professional Conduct Committee or related to taking the bar exam, by otherwise disqualified would-be-takers, etc. The facts, when revealed, showed that between 1995 and 1999, an average of less than eleven cases per year were docketed as Special Matters Confidential. However, the public perception of a confidential docket, in the context of the legislature's investigation of Supreme Court conduct, caused a hullabaloo. As a result, the newly appointed justices of the Supreme Court ordered that the docket be made public.

It turned out to be boring reading. Most of the docket numbers were motions to take the bar exam (presumably after having failed it more than the threshold number), and petitions concerning incapacitated attorneys, etc. The absence of fuel for the fire was evident when The Union Leader and other state newspapers buried the publication of the report in their back pages since there was nothing at all sensational in the disclosure. However, the existence of the docket has added to the public perception, as far as the author can determine, that the Supreme Court had an unusual concern for huggermuggery that needs to be changed. It appears that with the publication of the Special Matters Confidential Docket and with the addition of the new justices to the Supreme Court, this concern for secrecy has changed. Some would say it was much ado about nothing. However, the appearance of an obsessiveness with secretiveness needs to be addressed by the Court in the future so that the public can have confidence that where matters are kept confidential, they are only in the most unusual case where an individual's reputation might be irreparably harmed by the mere filing of a petition to the Court. Even then, the author is not sure that there are any cases which should not, at a later time, be listed on a public docket, so that the citizenry can inquire further of the Court if the situation warrants.

This is a fearless Court. In Kellner v. Lowney, decided August 18, 2000, an interesting case, where the trial court which had granted a motion for summary judgment in favor of the defendants, was reversed on an appeal to the Supreme Court. Judge McHugh, of the superior court, sitting by virtue of RSA 490:3, writing for a unanimous court (all of whom were superior court justices or retired superior court justices) unanimously overturned the trial court's decision, focusing on the issue of the legal concept of duty and foreseeability. The court ruled that "[i]n large part New Hampshire's legal concepts of duty and foreseeability derive from Chief Justice Cardozo's majority opinion in that icon case4  of first year law students, Palsgraf v. Long Island Railroad Company. Isn't truth stranger than fiction? In Palsgraf, a commuter steps onto a Long Island Railroad car, pushed by a Railroad employee, with a bag of fireworks in his arms, stumbles and the bag of fireworks falls onto the tracks and ignites, with rockets exploding and injuring Mrs. Palsgraf and various plaintiffs, all in different degrees of proximity to the bag of fireworks!! The issue in the present case involved a five year old pedestrian plaintiff that had been seriously injured when struck on a public highway by an automobile when passing from one side of the road to the other to get from one part of the defendant's motel property to the other, the motel property being located on both sides of the road. The plaintiff child was returning to his motel room after attending religious services on the motel property on the other side of the highway [Why doesn't the author get plaintiffs' cases like this?]. The trial court had held that the defendant, as owner and proprietor of the motel, owed no duty to the plaintiff guest to warn or otherwise protect him from the hazards inherent in the public highway adjacent to her property since the court concluded that a property owner could be liable only for risks posed by conditions actually on the premises. Upon this issue, the case turned. The Supreme Court looking at the issue, using the Palsgraf lens of duty and foreseeability, saw the question as whether the "defendant [could] anticipate a risk of injury to those guests who were required to cross [the highway] to return to their living quarters after attending religious services?" The Court answered this key question in the affirmative. Viewing the case as a question of foreseeability, the unanimous Court, relying on the fabled Palsgraf Case, held that "[a] duty may be present [even for accidents off the premises] if the landowner's acts or omissions create a sufficiently foreseeable risk of harm in such a case, where it can be found that the landowner did not use reasonable care in the maintenance and operation of his or her property." Ah, the author harkens back to his 1959 class in Torts, taught by Professor Marcus ["Torts"] Plant, of the University of Michigan, who explored, in excruciating detail, the ramifications of the Palsgraf Case, using his own case book published by the even-then-obscure law book publisher, Bobbs-Merrill [and used nowhere else the author later discovered].

Recently, the author reminiscing about the Palsgraf Case with his stepdaughter who is in law school, in anticipation of her Torts course, related his remembrance of the Palsgraf Case, recalling in his sometimes imperfect memory that some of the injuries caused by the exploding bag of fireworks were to a plaintiff about a mile distant and to another plaintiff seven stories above in a neighboring skyscraper. When the eager law student finally read the case, she confronted the author with his faulty memory, pointing out correctly that Mrs. Palsgraf was on the same subway platform "many feet away" and "everyone else who was injured was in the subway station and no one hurt was further than a couple of hundred feet away!!"


1. The author is involved in this case as trustee and, therefore, his view may be colored thereby.
2. Kelly v. State, 105 N.H. 240 (1963).
3. Marcotte v. Timberlane/Hampstead School District, 143 NH 331 (1999).
4. Remember those first year law school classics: Remember Pierson v. Post? [The fox hunter chasing the fox (an animal "ferae naturae") and finally "possessing" it]. Or Hadley v. Baxendale, [the old English case where special damages are allowed under certain circumstances in contractual actions]? Or the constitution law cases of Marbury v. Madison [the United States Supreme Court has the power to hold unconstitutional congressional acts]? Or Schenck v. U.S., the Oliver Wendell Holmes' trenchant opinion that despite the First Amendment, you can't yell "fire" in a crowded theatre and cause panic]?

The Author

Charles A. DeGrandpre is a director and treasurer in the firm of McLane, Graf, Raulerson & Middleton, P.A., Portsmouth, New Hampshire.


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