Justia Injury Law Opinion Summaries

Plaintiff Steven Ford appealed a superior court's order that dismissed his negligence claims against Defendants the Town of Windham and the New Hampshire Department of Transportation (DOT). In late 2008 the vehicle in which Plaintiff was a passenger was struck by another vehicle in Windham. A severe ice storm had caused a power outage that had rendered the street and crossing lights at the intersection where the accident occurred inoperable. Several hours before the accident, both the Town and DOT had received notice that the lights were inoperable because of the storm. The accident caused Plaintiff to suffer severe injuries. He sued for negligence. Defendants moved to dismiss, arguing they owed Plaintiff no duty to warn of any hazardous condition that might have existed because of the ice storm. Upon review of the applicable legal authority, the Supreme Court held that the trial court did not err in dismissing Plaintiff's negligence claims.

Plaintiffs Jason and Jennifer Antosz appealed a superior court order that granted summary judgment in favor of Defendant Doree Allain. Defendant owned property in Epping. In early 2008 the Town's fire department was called to Defendant's house because of a fire caused by the home's hot water heater. Jason Antosz was a volunteer firefighter with the Epping Fire Department who responded to the call. As he arrived on the scene, he walked down the home's driveway which was covered with packed snow and ice. He slipped and fell and was seriously injured. Plaintiffs sued Defendant for negligence, alleging the driveway was in an unsafe and unreasonable condition. Defendant argued that Plaintiffs' claims were barred by the "Fireman's Rule." Finding that the Fireman's Rule only applied to paid firefighters, the Supreme Court overruled the grant of summary judgment in favor of Defendant and remanded the case for further proceedings.

The Supreme Court granted an interlocutory appeal from the superior court that partially granted and partially denied the summary judgment motion filed by Defendants Lakes Region Water Company and Thomas Mason (collectively LRWC). The question before the Court was whether the superior court erred in concluding that Defendants were not exempt from the Consumer Protection Act to the extent that they allegedly misrepresented that the water they provided was safe for use and consumption. Answering in the affirmative, the Supreme Court reversed the trial court’s denial of partial summary judgment as to the claims of the plaintiffs Jo Anne Rainville, Carl Beher, Lisa Mullins d/b/a The Olde Village Store, and approximately fifty others, under the Consumer Protection Act (CPA) which sought damages for alleged misrepresentations about the quality of water provided.

Plaintiff Josephine Lamprey appealed a superior court order that dismissed her against Defendants, Britton Construction, Inc. (Britton), DeStefano Architects, PLLC f/k/a Lisa B. DeStefano (DeStefano) and Dave Sherwood, pursuant to the statutes of limitations and repose. Plaintiff hired the defendants to design and build her home. DeStefano was the architect; Britton was the general contractor; and Sherwood was the mason who installed the home’s extensive stonework, including a stone veneer, terrace and stone chimneys. Plaintiff began living in the house in November 2001, but never obtained a certificate of occupancy. Within one year, water damage appeared on the wood floors. In 2006, Plaintiff hired Sherwood to repair loose stones on her terrace. In 2010, when Plaintiff replaced her stone terrace with granite, the mason in charge of the replacement noticed problems with the home’s stonework requiring significant repairs. As a result, Plaintiff sued the defendants, alleging negligence and breaches of warranty in her home’s construction. Britton requested dismissal pursuant to the statute of limitations for personal actions. Sherwood moved to dismiss, arguing that the construction statute of repose also barred Plaintiff’s claims. Plaintiff responded by arguing, among other things, that the statutes should be tolled because Sherwood had fraudulently concealed her home’s masonry problems. Upon review, the Supreme Court affirmed in part, and reversed in part. The trial court properly dismissed all claims against Destefano. Although the trial court properly dismissed the claims against Britton and Sherwood initially, "it unsustainably exercised its discretion by not permitting Plaintiff to amend her writ to add fraudulent concealment allegations related to the bent masonry ties that concealed defects in her home’s stone veneer. Plaintiff’s amended claims against Britton and Sherwood related to the stone veneer were allowed. The Court remanded the case for further proceedings.

Petitioner Lachlan MacLearn and Intervenor Simon Hutchings appealed a superior court order that denied their motion for summary judgment. Petitioner was driving his 2006 Prius when he was involved in an accident with Hutchings. At the time of the accident, Petitioner also owned a 2000 Audi A6 that was insured by Respondent Commerce Insurance Company. Hutchings sued Petitioner for damages from his injuries. Hutchings made a demand upon Commerce for defense and indemnification. Commerce denied the claim, stating that coverage was barred by the terms of the policy it held on Petitioner's Audi. Petitioner petitioned for a declaratory judgment that Commerce was obligated to defend and indemnify him against Hutchings' suit. The trial court granted Commerce's motion and denied Hutchings', finding the policy barred coverage. Upon review of the policy and the arguments submitted by the parties, the Supreme Court affirmed the trial court, finding the policy did not cover Petitioner's use of the Prius, nor grant him indemnification from Commerce for the accident arising out of his use of it.

Defendant Christopher D'Errico appealed the recommendation of the Marital Master that granted a protection order to Plaintiff Linda Thompson. Plaintiff filed a domestic violence petition in April, 2011. Following an evidentiary hearing, the trial court found that almost every day Defendant sent Plaintiff text messages using "extraordinarily foul language." The court further found that Defendant told Plaintiff not to come near his house because he had a loaded shot gun, and that in the past Defendant was stopped by a family friend from putting his hands around Plaintiff's neck. The court concluded that Defendant's conduct constituted a present threat to Plaintiff's safety and issued a final order of protection. On appeal, Defendant argued that: (1) his non-threatening foul language is protected by the First Amendment; (2) there is no evidence to support Plaintiff's allegations against him; (3) the text messages might have been sent by a third party having access to his phone; (4) the trial court erred by admitting evidence of certain text messages; and (5) the evidence did not support the finding of a credible present threat to Plaintiff's safety. Finding no merit to any of the issues Defendant raised on appeal, the Supreme Court affirmed the Master's final order.

Petitioners Thomas Morrissey, Dorothy Sears, Reginald Rogers, John Quimby, Michael O’Donnell, Jonathan Chamberlain, Patricia Reynolds, Richard and Barbara Sanders, Margaret Russell, and Robert and Judith Dupuis, appealed a superior court order that granted motions to dismiss filed by Respondents New Hampshire Department of Environmental Services and New Hampshire Fish and Game Department (collectively referred to as the State), and Town of Lyme (Town). Post Pond is in Lyme, held in trust by the State for public use. Petitioners own properties with frontage on Post Pond and the west side of the Clay Brook wetlands. The Town owns property on the east side of the Clay Brook wetlands as well as a contiguous parcel with frontage on Post Pond, which consists of a recreation area. In May 2009, Petitioners filed a petition in equity and writ of mandamus alleging that the Town's removal of beaver dams in the Pond that controlled the natural mean high water mark adversely affected their properties and disrupted the entire Clay Brook wetlands ecosystem. Upon review, the Supreme Court found that Petitioners' writ allegations were insufficient to state a claim for taking or nuisance against the Town, and that the trial court did not err in dismissing their claims. Further, the Court concluded that Petitioners failed to plead a claim entitling them to declaratory relief.

In this personal injury case, Plaintiff Alfred Ocasio appealed a judgment entered in favor of Defendant Federal Express Corporation (FedEx). Plaintiff was a mail handler who pulled by hand, large, heavy canisters filled with mail from delivery tractor-trailer trucks. One day as he was pulling canisters from a FedEx tractor-trailer truck, he accidentally stepped into and caught his leg in a gap between the rear of the truck and the loading dock. When a canister he had been pulling continued to roll toward him, the bones of his trapped leg were shattered. He argued on appeal that the Trial Court erred when it allowed the jury to apportion fault to his employer, the United States Postal Service (USPS), and when, despite the jury's $1,445,700 verdict in his favor, it entered judgment for FedEx after comparing the fault allocated to him to the fault allocated to FedEx. Upon review, the Supreme Court held that "while it was not error to allow the jury to apportion fault to the USPS, it was error to deny the plaintiff any recovery against FedEx. We, thus, affirm in part, reverse in part, and remand."

Petitioners, the Estate of June M. Day (Estate) and Byron and Stephanie Day, appealed a superior court's grant of summary judgment to Respondent Hanover Insurance Company, arguing Hanover's consent to settle a claim by Petitioners with the insurer of a third party tortfeasor did not preclude Hanover from contesting its liability to provide the Estate underinsured motorist coverage under its insurance contract with the Estate's decedent. In 2007, June Day was fatally injured in a motor vehicle accident. At the time of the accident, Day's vehicle was insured under an automobile liability policy and a personal umbrella policy issued by Hanover, and both policies provided underinsured motorist coverage. Following the accident, Petitioners made a claim against the third party's insurance company's policy. Hanover agreed that Petitioners could accept the settlement offered "while reserving [Hanover's] right to continue the investigation into liability in this matter," and noting that Hanover had "neither accepted nor denied liability." Petitioners accepted payment and executed a release to the third party and her insurance company. Thereafter Petitioners took the position that, by consenting to the settlement, Hanover was precluded from contesting that Petitioners were "legally entitled to recover" damages from the third party. Ruling on the parties' cross-motions for summary judgment, the trial court rejected Petitioners' position and dismissed the action. Petitioners filed an objection arguing that the court had "misunderstood the essence of the petition." Upon review, the Supreme Court affirmed, concluding that "the record supports the trial court's ruling regarding the litigation strategy the petitioners pursued below. . . . insofar as the petitioners complain that Hanover failed to exercise good faith in that it delayed investigating and processing their claim, we note that the petitioners at all times had it within their power under the terms of the policy to address this problem by demanding arbitration of its underinsured motorist claim against Hanover, or, alternatively, by filing a breach of contract action in court."

Plaintiff Dana Chatman appealed a superior court decision that dismissed his lawsuit against Defendants James Brady and the Lee Country Fair brought pursuant to RSA 651:70 (2007), an immunity statute. In May 2007, Plaintiff pleaded guilty to felony operating a vehicle while certified as a habitual offender. The trial court sentenced him to one year in the Strafford County House of Corrections, with all but fourteen days to be served on administrative home confinement. As a condition of his release, he was required to wear a monitoring bracelet. Because he could not afford the daily fee associated with the bracelet, he was required to work to cover its costs. On or about September 9, 2007, Plaintiffâs work assignment was to help clean up the grounds at the site of defendant Lee Country Fair, assisting in loading tables and chairs onto a trailer owned by Defendant Brady. While the loaded trailer was being hitched to the truck, a weld on the trailer hitch failed causing the trailer to fall on the plaintiffâs leg. Plaintiff sued alleging that Brady was negligent and that Lee Country Fair was vicariously liable for that negligence. He alleged that Brady knew or should have known that loading the trailer prior to hitching it to the truck would cause excessive stress to the trailer hitch and welds, and that maneuvering the fully loaded trailer to the truck while on soft, uneven ground was unreasonably dangerous. Upon review, the Supreme Court concluded that RSA 651:70 did not afford Defendants immunity under the facts alleged in this case, and therefore, the trial court erred in dismissing Plaintiffâs lawsuit.