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Bar Journal - June 1, 1999

Lex Loci: A Survey of Recent NH Supreme Court Decisions


The gradual and incremental, but sometimes inconsistent, development of our common law, slowly, case after case, is well illustrated in the recent case of Marcotte v. Timberlane/Hampstead School District, decided February 9, 1999. The case arose as a wrongful death action on behalf of a student who was killed by a soccer goal designed and paid for by a public school's independent soccer league, modified and built by a manufacturer, and subsequently donated to the school district. The unlucky student lost his life when one of the 310 lb. steel goals toppled over upon him while playing soccer. The jury awarded $925,000 to the plaintiff administrator which was abated to $150,000 by the judge's application of RSA 507-B:4. In addition to the plaintiff and the three defendants (the school, the soccer league who had donated the soccer goals, and the manufacturer), the case on appeal engaged the interest of the American Insurance Association, the Hitchcock Clinic, the New Hampshire Medical Malpractice Joint Underwriters' Association, and the New Hampshire Trial Lawyers' Association, all of whom filed briefs as amici curiae.

The core issue in the case was whether or not in a wrongful death action the plaintiff was entitled to recover "hedonic damages," defined by the Court as "the value, translated into dollar figures for the purpose of compensation, of the decedent's lost life." To tackle that question, the Court first had to find that the damages were not limited by RSA 412:3 which authorizes school districts to procure liability insurance and which further provides that the school district's liability shall not exceed the policy limit or the limit specified in 507-B:4, "whichever is higher." The insurance policy here involved provided that liability was limited to $150,000 or $1,000,000, depending upon whether or not RSA 507-B:4, I applied or was found to be unconstitutional. RSA 507-B:4, I provides that liability of a governmental unit for bodily injury is limited to $150,000. Reading the different parts of the policy together, three of the five judges concluded that the limitation provided for in RSA 507-B:4, I "does not apply when a governmental unit purchases liability insurance that would apply but for the statutory limit itself" and ruled that the superior court should not have abated the jury verdict.1

Turning to the issue of hedonic damages, Justice Horton, speaking for a four judge majority, in a case of first impression in New Hampshire, focused on the language of the wrongful death statute, RSA 556:12, which provides for the recovery to a decedent's estate both for "the probable duration of [her/his] life but for the injury" and "[her/his] capacity to earn money during [her/his] probable working life." The Court ruled that these two phrases must be read separately or otherwise the additional phraseology is "mere surplusage" and the legislature "is not presumed to waste words or enact redundant provisions and whenever possible, each word of a statute should be giving effect." Thus, the Court reasoned that the phrase "the probable duration of his life but for the injury" "may include the hedonic element, which is generally compensible as lost enjoyment of life."

In order to reach its decision, Justice Horton adroitly distinguished the Court's earlier holdings that in cases for personal injury brought prior to the decedent's death and pending at his death, damages for lost earning capacity are allowed while hedonic damages in such cases are not allowed in New Hampshire. The Court characterized this line of cases as simply restating the common law concerning the allowable damages in a tort claim pending at the defendant's death. The present question, the Court pointed out, was a different question and was based on the statutory language of the wrongful death statute which the Court found provided for both types of damages: damages for the lost earning capacity of a decedent and for the value of the lost enjoyment of his life.

Having found that hedonic damages were allowed, the majority then upheld the trial judge's admission of hotly contested evidence of the "decedent's computer diary, highlighting "the activities the decedent enjoyed during his life" and various photographs depicting the decedent, his home, his family and his belongings, which the Court indicated were properly admitted since such "evidence was relevant to prove damages for loss of life and were helpful to the jury in assessing the amount to award for such damages."

Justice Thayer, in dissent, relied heavily upon a long string of New Hampshire cases which interpreted the phrase "probable duration of his life but for the injury" as limiting evidence under this wording to evidence which basically calculates the earning capacity of the decedent. Justice Thayer argued that the re-enactment, in light of the Court's prior decisions, of the double phraseology of the wrongful death statute, constituted an adoption by the legislature in wrongful death cases of the Court's earlier and long-standing interpretation limiting damages in cases pending when the plaintiff has died to a loss of earning capacity calculation. Carefully dissecting the long and sometimes confusing history of the wrongful death statute, Justice Thayer concluded that a careful "review of the legislative history indicates the legislature never made such a public policy determination regarding recovery of loss of life damages [to allow such damages in wrongful death actions]. Today, the majority fails to take public policy considerations into account in expanding liability beyond the damages allowed by the statute." The author is sometimes slow in getting the point, but it's now no surprise to him that the trial bar and the insurance industry were interested in this appeal.

Demonstrating how the individual justices of the present Court each exercise his independent judgment free from conventional labels, a fascinating decision by Justice Thayer soon followed the Marcotte Case. In the criminal case of State v. Rideout, decided February 25, 1999, the issue focused on a singular occurrence, the interaction between a police witness for the prosecution and a juror after the jury had begun deliberations. The facts were uncommon. After the defendant's case went to the jury and after the jury began deliberations, a juror left the jury room to indicate to a sheriff that as a diabetic he needed to gain access to his insulin which was in his automobile parked outside the courthouse. However, the juror had discovered that he had locked his keys in his car and needed assistance to gain entry. The sheriff called for assistance from the local police and, by happenstance, obtained the help of a police officer who had earlier testified for the prosecution in the defendant's criminal trial. After the sheriff warned the juror not to discuss the case outside the deliberation room, the officer assisted the juror in obtaining access to his vehicle. There was no evidence that the two discussed the case. The juror returned to the jury room and one-half hour later, a verdict against the defendant was returned. After an in-chambers inquiry and an evidentiary hearing by the trial judge, the judge found that the juror's encounter with the prosecution witness had been brief and that the juror asserted that he had already determined the defendant's guilt before he left the deliberation room. The trial judge rejected the defendant's motion to dismiss. On appeal, Justice Thayer, writing for a unanimous Court found that "the effect of [the juror's] encounter with [the police officer witness] on the other jurors is uncertain", particularly having in mind that the police officer was an important State witness. The Supreme Court held that the juror's encounter with such a witness may well have contaminated the jury with extraneous information. The Court ruled that it was "a fundamental principle of our system of justice" that "a juror found to be disqualified at any time before or during trial shall be removed from further service" and in the absence of evidence by the State whether the juror had informed the other jurors about his interaction with the police officer, the Court ordered a new trial. The decision is commendable, serving to protect jury deliberations from any hint of taint.

Opinion of the Justices, [Claremont VI?] decided March 11, 1999, is another chapter in the long running melee over the proper funding of a constitutionally adequate education for New Hampshire's children, the struggle over which appears to the author akin to that of an Icelandic saga, continuing from generation to generation. The Court had before it a request by the Senate for an advisory opinion on proposed legislation which would have provided for a binding referendum by New Hampshire citizens who would have been given the right under the proposed legislation to choose between one of two tax plans, both plans having been passed by the legislature subject to the choice of the people by referendum. The proponents of the referendum (the governor, the attorney general, the president pro tem of the senate, et. al.) argued that the phrase found in Part I, Article 28 of the Constitution of New Hampshire that no tax shall be established "without the consent of the people" was a sufficient authorization for the proposed referendum. On the other side were the speaker of the house, the Claremont plaintiffs, and several other interested citizens. A unanimous Supreme Court disagreed with the administration's position. In a careful opinion that exhaustively examined past decisions that had consistently held that "[r]eferenda on legislation are unconstitutional in this State" because the power of taxation inherent in the people "was by them delegated to the general court" by Part II, Article 2 of the constitution, the Court found the proposed legislation to be unconstitutional. The Court zeroed in on the fact that in the constitutional conventions of 1912 and 1918-21 proposals to amend the constitution to provide for referenda had failed to gain the support of both constitutional conventions, proving, said the Court, that as early as 1912 it was clearly "understood that the legislature simply lacked the constitutional power to submit a proposal to the electorate for approval."

Turning to the second issue, whether the legislature, once delegated the power to legislate, could delegate its legislative powers back to the people, the Court was unequivocal:

It is universally agreed that the Legislature cannot delegate its lawmaking power... Desirable as it is to support and uphold the acts of the Legislature, we cannot do so at the expense of the Constitution of the state. Nor can we break old laws to make new ones. And it seems very clear that, if the Legislature cannot delegate to the people the lawmaking power which the people delegated to them, then it cannot pass a valid act which can only become law in the event that the people of the state approve it.

As of this writing, the author, ever the optimist, continues to be hopeful that the legislature will meet its responsibilities.

"Uh-oh, Mama." With these prophetic words spoken by a three old son to his mother, a chain of events unfolded which brought a tort action for negligent supervision of a child by its parents on appeal to the Supreme Court, Langlois v. Pomerleau, decided March 18, 1999. This is the rare case where an appeals court finds that a motion for judgment notwithstanding the verdict should have been granted by the trial judge. The defendants were the parents of a three-year-old child who were charged with the tort of the negligent supervision of their child. The case arose when a fire occurred in the defendants' apartment causing damage to the plaintiff building owner. The fire occurred while the defendant mother was taking a shower, leaving her three year old son on a bed in the adjoining bedroom for approximately ten minutes, after which the son walked into the bathroom where the mother was bathing and said "Uh-oh, Mama." Alerted, the mother ran into the bedroom to discover a fire burning near the bed which she was unable to extinguish. The fire caused stipulated damages of over $185,000 to the plaintiff landlord.

The Court, speaking through Justice Johnson, recognized that "[to] date, we have declined to recognize the tort of negligent supervision to hold parents liable for the acts of their children." Don't hold your breath for an answer soon. The Court declined to decide this issue because it concluded that there was no evidence the child "had a known propensity to play with lighters or matches, or to play with fire." In light of the failure of such evidence, the Court held that the plaintiff may not rely on speculation or unsupported inferences to prove that the defendants' child had a propensity to start fires. The plaintiff did present evidence through an expert that the defendants' son had "a propensity for inquisitiveness and for getting into his parents' and siblings' personal property" [this evidence would have accurately described the author's own children]. However, the Court colorfully found that "the relevant propensity in this case is one towards fire, not inquisitiveness," and in the absence of any evidence to show that the child had a known propensity to play with lighters or matches or to play with fire, the Court ruled that the plaintiff had not met her burden of proof. The Court, therefore, reversed the trial court and held that the defendants' motion for a judgment notwithstanding the verdict should have been granted by the trial judge. The Court thus left unanswered whether or not New Hampshire recognizes the tort of negligent supervision by parents over their children.

In a case that can be noted briefly, Gray v. Seidel, decided February 8, 1999, the Supreme Court clarified [even the Supreme Court can be loose mouthed on occasion] its earlier decisions concerning the requirement of RSA 674:33, I(b), which authorizes a variance from the terms of a zoning ordinance, "as will not be contrary to the public." The planning board, in the case on appeal, required the plaintiffs to show that the variance would benefit the public interest. The planning board's ruling was based on earlier use of that language by the Supreme Court. The Court, however, clarified its earlier rulings, stating that the applicant for a variance need only show that the variance "will not be contrary to the public interest" and need not meet the higher burden of showing that the granting of the variance would benefit the public interest.

Turning to lighter fare, a doozy2 of a domestic relations matter known as Douglas v. Douglas "has made it into the national media."3 Describing the case as "juicy", the case was featured by the Boston Sunday Globe which juxtaposed the plaintiff's libel for divorce against the explanation of the law of divorce in his Family Law treatise,4 co-authored with the defendant wife. The case was the focus of the Court's attention in its latest opinion on the matter dated March 10, 1999.5 Consider the unique aspects of the case: in this divorce free-for-all, the co-author of the keystone work on New Hampshire Family Law and a former Supreme Court justice, argued pro se (as the plaintiff libellant) his own divorce case before his former colleagues and on the other side was the plaintiff's former law partner, a co-author with the plaintiff of the Family Law treatise and a member of the New Hampshire bar, who also appeared pro se as the defendant libellee wife.

In an earlier skirmish in this protracted firefight, the parties had fought over whether the defendant wife had the right to inspect and read items from the plaintiff's garbage.6 The Supreme Court had ruled that she did not. The present appeal reached the Supreme Court, as the Court quietly understated, "after many months of often fierce litigation, including multiple interlocutory petitions to this court." The defendant wife appealed to the Court the decision of the recused chief justice of the superior court to reassign the case for a hearing on the merits to another justice of the superior court after she had filed a motion requesting that the chief justice recuse himself. The defendant wife also complained about the matter in which she had been defaulted by the newly assigned superior court judge. A unanimous Court, speaking through Justice Johnson, approached this can of worms gingerly. The Court first upheld the reassignment of the case to another superior court judge [the author observes that it is a truism that every superior judge has to bear his/her share of such no-win, no-win cases], rejecting the defendant wife's argument that once a judge has recused her/himself, any reassignment order is necessarily void. The Court ruled that "the task of reassigning a case may permissibly be accomplished by a judge who has been disqualified."

The Court also rejected the defendant wife's, over the top, damn the torpedoes [or, at the least, redirect them to the plaintiff!] argument that, (in her own, incomparable, words), she had been "deprived of [her] fundamental due process and equal protection rights [because] the whole record below reveals paradigmatic judicial bias coupled with a plethora of circumvented constitutional mandates to the detriment of the Defendant." [What was that? Could you say that again?] On this issue, the Court pointed to the defendant's lack of citation to any "authority, constitutional or otherwise, to support her position." The Supreme Court, lofty and staying well above the fray, majestically held that the defendant wife's recital of "a mere laundry list of complaints" without "authority, constitutional or otherwise, to support her position" was insufficient appellate argument and constituted a waiver of her position on this issue.

With two strikes against her already, the Court, with Solomonic finesse, handed the defendant wife a victory on a key issue whether, upon her default for failure to appear at the hearing on the merits, the superior court was entitled to proceed to an immediate hearing on the division of the parties' marital property without the defendant wife's presence. The Supreme Court held that the defendant had been properly defaulted for her failure to appear after being duly noticed to appear in person, but went on to hold that the entry of default only meant that a decree pro confesso could be entered by the Court which simply admitted only the well-pleaded facts alleged by the plaintiff husband in his libel petition. The Court then ruled that the defendant wife was entitled to "a properly noticed determine the proper disposition of the parties' marital property," and the trial court having failed to do that, the Supreme Court ordered the case remanded to the superior court [perhaps the trial judge should receive combat pay allowance?] for a hearing on these issues. Out of the frying pan, into the fire for the plaintiff husband.

The author is drawn, irresistibly against his will, to the time honored witticism of Henry Wadsworth Longfellow on the folly of humankind in matters matrimonial:

The men that women marry [and vice versa]
And why they marry them, will always be
A marvel and a mystery to the world.7



As of this writing, this portion of the opinion is under re-consideration by the Court.


Safire, N.Y. Times Sunday Magazine, April 11, 1999, p. 26.


Boston Sunday Globe, April 4, 1999, NH5 (1999)




The author currently represents a party in a lawsuit against the plaintiff husband and his views may be colored by his involvement in the pending litigation.


Douglas v. Douglas, _____ NH _____, 1997.


Longfellow, Michael Angelo, pt. I, vi. [vice versa by the author].

The Author

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


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