Articles Posted in Injury Law

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Seventeen of the 20 plaintiffs to this case were Somali Bantu refugees who were resettled to the United States in 2004. Three of the plaintiffs were born in the United States to Somali Bantu refugees. Plaintiffs lived in the defendants’ apartments during 2005-2006, and those apartments were contaminated by lead paint, a known health hazard. Plaintiffs had elevated levels of lead in their blood. In their complaints, which were consolidated for discovery and trial, plaintiffs, through their parents, alleged that they were injured by their exposure to lead paint while living in defendants’ apartments. In this interlocutory appeal, plaintiffs challenged a superior court order granting the motion to exclude the expert testimony of Peter Isquith, Ph.D. After evaluating the 20 plaintiffs, Isquith, a clinical neuropsychologist, determined that 17 of them suffered from neurological deficits and opined that lead exposure was, more likely than not, a substantial factor in causing those deficits. The superior court excluded Isquith’s testimony based upon its determination that his testimony was not “the product of reliable principles and methods,” and its finding that he did not apply “the principles and methods reliably to the facts” of this case. The superior court certified a question to the Supreme Court: whether the trial court abused its discretion by excluding the expert's testimony. The Supreme Court found no reversible error in the trial court's order, and affirmed. View "Osman v. Lin" on Justia Law

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Petitioner Carlos Marti appealed a Compensation Appeals Board (CAB) decision to dismiss his claim for reinstatement to his job with respondent Nashua Foundries, Inc. Petitioner injured his elbow at work. He informed respondent’s president of his injury, was given an over-the-counter medication, and returned to work. Petitioner’s pain grew worse and, after approximately thirty minutes, he asked the president for permission to go to the local emergency room. The president refused the request, referring petitioner to an occupational health clinic pursuant to company policy and the collective bargaining agreement governing petitioner’s employment. Against the president’s directive, petitioner clocked out of work and went to the emergency room. He returned later with a doctor’s note for a four-day work absence, but was instead terminated for insubordination. Petitioner did not grieve his termination under the collective bargaining agreement. Respondent’s workers’ compensation insurer accepted the claim and paid petitioner’s medical bills. Petitioner requested a hearing on his claims for reinstatement and back pay; respondent moved to dismiss for lack of jurisdiction. The CAB found that petitioner failed to challenge his termination by grieving it pursuant to the collective bargaining agreement. Respondent contended that because petitioner failed to grieve his termination, he could not challenge its legitimacy. The Supreme Court, after review, disagreed with respondent's contention: "[i]f this were correct, the petitioner would be considered to have been legitimately terminated for cause, and, under our interpretation of the statute herein, would not be an “employee” eligible for reinstatement under RSA 281-A:25-a, I. We cannot determine, however, whether the petitioner’s failure to grieve forecloses a challenge to his termination because the collective bargaining agreement is not contained in the record before us." Accordingly, the Court vacated and remanded for a determination on that issue and for further proceedings. View "Appeal of Carlos Marti" on Justia Law

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Plaintiff Lynette Maryea was an inmate at the Strafford County House of Corrections. In January 2011, the County was transporting Maryea from the House of Corrections to the Federal District Court in Concord in an inmate transport van. Maryea rode handcuffed and shackled in the van’s back compartment, which was designated for inmates. The compartment had no seatbelts. During the drive, the van collided with Thomas Velardi’s vehicle, and Maryea sustained injuries. Maryea then brought negligence claims against Velardi and the County. In her negligence claim against the County, Maryea alleged that the County was liable for her injuries because the transport van was not equipped with seatbelts in the back compartment where she was required to be seated. Maryea appealed a Superior Court order ruling that defendant Strafford County was entitled to discretionary function immunity and granting the County’s motion for summary judgment in an action for damages arising out of an automobile accident. Maryea and Velardi eventually settled. The principal issue in this case was whether the provisions in RSA chapter 507-B waiving governmental immunity from tort liability arising out of, among other things, the operation of motor vehicles, abrogated the County’s common law discretionary function immunity. After review, the Supreme Court held that they do not, and, accordingly, affirmed. View "Maryea v. Velardi" on Justia Law

Posted in: Injury Law

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Petitioner Raymond Cover appealed a New Hampshire Compensation Appeals Board order denying his request for reinstatement to his former part-time position with the respondent, the New Hampshire Liquor Commission (Commission). Cover was a part-time employee of the Commission. In late May 2013, he sustained a work-related injury. The Commission sent him workers’ compensation forms on June 5 and warned him that he faced termination if he did not provide medical documentation by June 14 to justify his absence from work. On June 6, Cover gave the forms to his physician, who submitted them to the Commission on June 17, three days after the Commission’s deadline. Cover acknowledged that he did not submit any medical documentation to the Commission by June 14. On June 13, the Commission’s insurance carrier denied Cover’s workers’ compensation claim, stating that it had not received medical documentation concerning his injury. On June 17, the Commission terminated Cover’s employment. The board based its denial upon New Hampshire Administrative Rules, Lab 504.05(b)(3), which stated that part-time employees were ineligible for reinstatement under the Workers’ Compensation Law. On appeal, Cover argued that Lab 504.05(b)(3) conflicted with RSA 281-A:25-a and was therefore invalid. The New Hampshire Supreme Court concluded that the plain language of RSA 281-A:25-a supported Cover’s argument that the right of reinstatement extended to part-time employees. "By stripping part-time employees of the right to reinstatement provided by RSA 281-A:25-a, the rule cannot be characterized as a rule that merely 'fill[s] in the details to effectuate the purpose of the statute.' Rather, the rule impermissibly modifies the statute and is therefore invalid." The Court vacated the board’s order and remanded for further proceedings. View "Appeal of Raymond Cover" on Justia Law

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The United States Court of Appeals for the First Circuit certified a question of New Hampshire law to the New Hampshire Supreme Court. The question arose from a dispute between Old Republic Insurance Company and Stratford Insurance Company as to their respective coverage and defense obligations arising out of a motor vehicle accident involving their insureds. Old Republic and Stratford each provided insurance coverage for a tractor-trailer that collided with a passenger vehicle. The owner of the tractor, Ryder Truck Rentals, had purchased an insurance policy from Old Republic. DAM Express, a for-hire motor company, had leased the tractor from Ryder. Although, pursuant to the lease agreement, Ryder was responsible for obtaining liability insurance for the tractor, DAM also purchased a separate insurance policy from Stratford. When the collision occurred, the driver of the tractor-trailer was employed by DAM, and the trailer was owned by Coca-Cola. The question posed to the New Hampshire Supreme Court was whether, under New Hampshire law, when was an excess insurer’s duty to defend triggered? Did New Hampshire follow the general rule that the excess insurer’s duty to defend is triggered only when the primary insurer’s coverage is exhausted? If not, what rule as to allocation of defense costs and timing of payment did New Hampshire follow? The New Hampshire Court responded that under New Hampshire law, the excess insurer’s duty to defend is triggered only when the primary’s insurer’s coverage is exhausted. View "Old Republic Insurance Co. v. Stratford Insurance Co." on Justia Law

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Plaintiff Scott McCarthy appealed a Superior Court decision to dismiss his defamation action against defendants, the Manchester Police Department (MPD) and MPD Sergeant Craig Rousseau, on grounds that municipal immunity barred his claim. William Socha was working on a construction site in Manchester. At around noon, Socha noticed a truck parked on the site and went to tell the driver to move the vehicle. As he approached, he saw that the man in the driver's seat had his pants down, exposing his genitalia. Socha also observed a young female in the truck's passenger seat. The passenger appeared to Socha to be about twelve years old and to have some kind of disability. Socha called the police, but, by the time an MPD officer arrived, the vehicle had left. Socha gave the officer a description of the truck, its license plate number, and a physical description of the driver. The police determined that the truck was registered to plaintiff, who resided in Allenstown. A short time later, a detective from the Allenstown Police Department observed the plaintiff arrive at his residence in a truck matching the description and license plate number Socha had provided. Plaintiff told the detective that he had been in Manchester around 12:30 p.m. that day to pick up a friend and her daughter. The MPD filed a complaint charging plaintiff with indecent exposure and lewdness, and arrested him pursuant to a warrant. The MPD had not identified the female passenger whom Socha had described. In an effort to identify her, Sgt. Rousseau posted an entry on the MPD blog, describing the incident and stating, in relevant part, that "[d]etectives of the MPD Juvenile Division now say that McCarthy, 41, was in fact the man who was exposing himself in the vehicle. McCarthy was subsequently arrested [and] charged with one count of indecent exposure." The entry then asked for information concerning the identity of the female passenger. No passenger was ever identified. On the day of plaintiff's criminal trial, Socha failed to come to court, and the State entered a nolle prosequi. Plaintiff subsequently brought this action against defendants, alleging that Rousseau's post on the MPD blog stating that plaintiff was "in fact" guilty of the crime was defamatory. Defendants moved to dismiss, arguing that they were immune from suits that were not authorized by RSA chapter 507-B. Finding no reversible error, the Supreme Court affirmed. View "McCarthy v. Manchester Police Dept." on Justia Law

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While riding on a school bus, Morgan Graveline was involved in an altercation with a another student, A.M. A.M. punched Morgan in the face. The bus driver reported the incident three days later. The school principal, Barry Albert, downloaded the bus driver’s report on February 8 and met with Morgan the next day. Morgan minimized the incident, told Albert she did not know the name of the other student involved in the altercation, and asked Albert not to notify her mother. Although Albert informed Morgan that he would have to notify her mother, he did not do so. Albert met with A.M. ten days after the incident whereby A.M. admitted to hitting Morgan. A.M. received a three-day suspension. Meanwhile, Morgan received threatening Facebook messages from another student, A.A., days before A.M.'s suspension. On the day Albert learned about the messages, he went to the cafeteria to ask A.A. to see him after lunch. After Albert left the cafeteria, a fight broke out. Morgan was hit several times, sustaining injuries to her head, face, and mouth. She was transported to the emergency room. Albert met with Morgan’s mother, plaintiff Danielle (Graveline) Gauthier, in the emergency room and, for the first time, told her about the bus incident and the threatening Facebook messages. Plaintiff brought suit to recover for Morgan's injuries. The trial court granted Albert's motion for summary judgment on qualified immunity grounds. Plaintiff argued that Albert was negligent for failing to notify plaintiff on the alleged bullying. Finding no reversible error in the trial court's judgment, the Supreme Court affirmed. View "Gauthier v. Manchester School District, SAU #37" on Justia Law

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Plaintiffs were four police officers who served on a drug task force who received reports that defendant’s 29-year-old son was engaged in illegal drug activity at a property in Greenland where he lived. The property was owned by the Beverly P. Mutrie Revocable Trust, of which defendant was trustee. During the execution of a search warrant at the Greenland property, defendant’s son shot and injured the plaintiffs. He then took his own life. Plaintiffs sued defendant, individually and in her capacity as trustee to recover for their injuries, alleging that she was responsible for their injuries because, “with the knowledge, information and belief” that her son was engaged in criminal activity, she “did recklessly and wantonly allow . . . criminal activity and conduct to take place at the subject property and otherwise directly and indirectly and wantonly and recklessly supported and facilitated [her son’s] criminal activity at the subject property.” The defendant filed a motion to dismiss, asserting that the plaintiffs’ claim is barred by the Firefighter’s Rule. The trial court explained that the allegations that defendant had provided her son with housing, cars, and financial assistance, and also paid his legal defense costs were insufficient to support a finding of reckless or wanton conduct because that assistance did not “enable [her son] to shoot the police,” nor did it “contribute to his decision to do so.” Therefore, the trial court concluded, the defendant could not “reasonably be considered to have created or contributed to an unjustifiable risk of harm to others,” and that no exception to the Firefighter Rule applied. Plaintiffs appealed, but finding no reversible error, the Supreme Court affirmed. View "Kukesh v. Mutrie" on Justia Law

Posted in: Injury Law

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Plaintiffs Deborah and Matthew Hogan appealed a Superior Court decision granting defendant Pat’s Peak Skiing, LLC's motion to dismiss their case. On February 4, 2012, both plaintiffs fell from a ski chairlift while skiing at defendant’s premises. Plaintiffs were evaluated that day by a member of defendant’s ski patrol and incident reports were completed. Both plaintiffs reported injuries from the fall. In May, plaintiffs sent notice to defendant by certified return receipt mail, stating that they had retained counsel regarding the February incident. The letter of notice was dated May 3, 2012, arrived at the Henniker post office on May 5, 2012, and was delivered to defendant May 10, 2012. Plaintiffs filed a complaint on December 3, 2013, seeking damages for negligence, recklessness, and loss of consortium. Defendant moved to dismiss the complaint, arguing that the plaintiffs did not provide notice by May 4, 2012 (ninety days from the date of the injury) as required by RSA 225-A:25, IV (2011). Defendant asserted that the plaintiffs failed to comply with the statute because the notice did not arrive until, at the earliest, May 5, 2012, the ninety-first day. In response, plaintiffs countered that mailing the notice on May 3, 2012, the eighty-ninth day, satisfied the statutory requirement. Alternatively, plaintiffs contended that they adhered to the notice provision by completing incident reports and giving verbal notice on the day of the incident and also by giving verbal notice on a later visit to the ski area. The trial court granted defendant’s motion, concluding that the plaintiffs failed to give proper notice. The question this case presented for the Supreme Court's review centered on whether the statutory phrase “shall be notified,” as it appeared in RSA 225-A:25, IV, was satisfied upon dispatch of notice or upon receipt of notice. Plaintiffs argued that the Court adopt the common law “mailbox rule” in interpreting the notice provision; defendant argued the Court interpret the provision to require actual receipt of notice. The Court concluded that both the plaintiffs’ and the defendant’s proffered constructions were reasonable. Because RSA 225-A:25, IV’s language was subject to more than one reasonable interpretation, the Court would normally resolve the ambiguity by determining the legislature’s intent in light of legislative history. In this case, however, the legislative history was not helpful. "In accordance with the principles of uniformity and certainty," the Court held that notice given pursuant to RSA 225-A:25, IV was effective upon mailing. In doing so, the Court narrowly applied the common law mailbox rule to RSA 225-A:25, IV," in consonance with holdings from other jurisdictions." View "Hogan v. Pat's Peak Skiing, LLC" on Justia Law

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Plaintiffs Deborah and Matthew Hogan appealed a Superior Court decision granting defendant Pat’s Peak Skiing, LLC's motion to dismiss their case. On February 4, 2012, both plaintiffs fell from a ski chairlift while skiing at defendant’s premises. Plaintiffs were evaluated that day by a member of defendant’s ski patrol and incident reports were completed. Both plaintiffs reported injuries from the fall. In May, plaintiffs sent notice to defendant by certified return receipt mail, stating that they had retained counsel regarding the February incident. The letter of notice was dated May 3, 2012, arrived at the Henniker post office on May 5, 2012, and was delivered to defendant May 10, 2012. Plaintiffs filed a complaint on December 3, 2013, seeking damages for negligence, recklessness, and loss of consortium. Defendant moved to dismiss the complaint, arguing that the plaintiffs did not provide notice by May 4, 2012 (ninety days from the date of the injury) as required by RSA 225-A:25, IV (2011). Defendant asserted that the plaintiffs failed to comply with the statute because the notice did not arrive until, at the earliest, May 5, 2012, the ninety-first day. In response, plaintiffs countered that mailing the notice on May 3, 2012, the eighty-ninth day, satisfied the statutory requirement. Alternatively, plaintiffs contended that they adhered to the notice provision by completing incident reports and giving verbal notice on the day of the incident and also by giving verbal notice on a later visit to the ski area. The trial court granted defendant’s motion, concluding that the plaintiffs failed to give proper notice. The question this case presented for the Supreme Court's review centered on whether the statutory phrase “shall be notified,” as it appeared in RSA 225-A:25, IV, was satisfied upon dispatch of notice or upon receipt of notice. Plaintiffs argued that the Court adopt the common law “mailbox rule” in interpreting the notice provision; defendant argued the Court interpret the provision to require actual receipt of notice. The Court concluded that both the plaintiffs’ and the defendant’s proffered constructions were reasonable. Because RSA 225-A:25, IV’s language was subject to more than one reasonable interpretation, the Court would normally resolve the ambiguity by determining the legislature’s intent in light of legislative history. In this case, however, the legislative history was not helpful. "In accordance with the principles of uniformity and certainty," the Court held that notice given pursuant to RSA 225-A:25, IV was effective upon mailing. In doing so, the Court narrowly applied the common law mailbox rule to RSA 225-A:25, IV," in consonance with holdings from other jurisdictions." View "Hogan v. Pat's Peak Skiing, LLC" on Justia Law