Justia New Hampshire Supreme Court Opinion Summaries

The plaintiff, Charles W. Cole, was walking on a brick sidewalk in North Conway Village, a village of the Town of Conway, when he tripped and fell due to holes in the sidewalk caused by missing or broken bricks. The plaintiff alleged that the Town of Conway was aware of the sidewalk's disrepair prior to his injury and had received written notice of the damaged bricks and holes. The plaintiff filed a negligence lawsuit against the Town of Conway in superior court.The Town of Conway moved to dismiss the complaint, arguing that it was entitled to statutory immunity as the plaintiff had failed to allege with particularity how the Town had received written notice of the sidewalk's condition. The plaintiff objected, arguing that the complaint contained sufficient particularity and that the Town was barred from claiming statutory immunity because it was insured against the risk through Primex. The trial court granted the Town's motion to dismiss, concluding that the plaintiff had failed to plead with sufficient particularity that the Town had received notice of the holes in the sidewalk, and that Primex's pooled risk management program did not constitute an insurance policy within the meaning of the relevant statute. The trial court also denied the plaintiff's motion for leave to amend his complaint.The Supreme Court of New Hampshire affirmed in part and reversed in part. The court agreed with the trial court that Primex's pooled risk management program did not constitute "insurance" within the meaning of the relevant statute, and thus the Town was not barred from claiming statutory immunity. However, the court reversed the trial court's denial of the plaintiff's motion for leave to amend his complaint, finding that the plaintiff's proposed amendments could potentially satisfy the particularity requirement of the statute. The case was remanded for further proceedings. View "Cole v. Town of Conway" on Justia Law

Claimant Fran Rancourt appealed a Compensation Appeals Board (CAB) decision granting the request of the carrier, AIM Mutual — NH Employers Ins. Co., for a reduction of the claimant’s benefits from the Temporary Total Disability (TTD) rate to the Diminished Earning Capacity (DEC) rate. At the time of her injury, the claimant was employed as the “vice president of academic and community affairs” for the Community College System of New Hampshire (CCS). The injury occurred when the claimant slipped on ice, hitting her head. She was taken to the hospital where she received 11 staples to close a wound in her head. Three months later, the claimant was assessed by Dr. Glassman, an independent medical examiner, who recommended “partial duty modified work part-time” and physical therapy, and that the claimant see a concussion specialist. He concluded that claimant did “not have the ability to return to full duty work at this time,” but opined that “she could be evaluated for partial duty work, working three to four hours a day, two to three days a week.” In July 2019, claimant was visiting a friend in Maine when she fell stepping into a boat. As a result of the fall, the claimant severely injured her left hamstring, resulting in surgery. She reported that the fall was a result of problems with her depth perception related to her head injury. In March 2020, Glassman performed another independent medical examination to evaluate the extent of claimant’s continuing disability. Glassman reported that claimant continued to suffer from “postconcussion syndrome” as a result of the work injury in 2017. He concluded that claimant “has not returned to her pre-accident status” and “still has ongoing deficits and ongoing symptoms.” He reported that claimant feels about “60% improved,” and that, while “she is being seen by neuro-optometry and speech therapy,” she “has reached maximum medical improvement” for her post-concussion syndrome. It was his opinion that “no further treatment is indicated for the date of injury of November 20, 2017.” In May 2020, the carrier requested a hearing, pursuant to RSA 281-A:48 (2010), seeking to reduce or terminate the TTD indemnity benefits claimant had been receiving. The hearing officer granted the carrier’s request to reduce benefits as it related to claimant’s changed condition. Finding no reversible error in that decision, the New Hampshire Supreme Court affirmed. View "Appeal of Rancourt" on Justia Law

Plaintiffs Andrew and Marian Szewczyk appealed superior court orders: (1) granting the motion to dismiss filed by defendant New Hampshire Department of Transportation (DOT); (2) striking the plaintiffs’ expert reports; and (3) granting the motions for summary judgment filed by defendants Bellemore Property Services, LLC (Bellemore) and Continental Paving, Inc. (Continental). In 2016, plaintiffs were injured in a motor vehicle accident on Route 3 in Nashua. While driving, they encountered significant flooding in the left-hand travel lane of the highway, and the vehicle they were traveling in hydroplaned. After plaintiffs stopped and got out of their car, a second vehicle hydroplaned and struck plaintiffs’ vehicle, which then struck and injured plaintiffs. When the police arrived at the scene, they discovered the flooding had been caused by a clogged catch basin. At the time of the accident, Continental was repaving Route 3 pursuant to a contract with DOT. Continental had subcontracted with Bellemore to clean the catch basins along Route 3. Plaintiffs filed a complaint against DOT, Continental, and Bellemore alleging that the three defendants collectively undertook a repaving and drainage system rehabilitation project and their combined and individual negligence caused the flooding, which caused the motor vehicle crash that injured plaintiffs. DOT moved to dismiss the count brought against it, arguing that plaintiffs’ failed to state a claim. The trial court granted the motion to dismiss, and later denied plaintiffs’ motion to reconsider. Thereafter, Continental and Bellemore moved for summary judgment and moved to strike the opinions of plaintiffs’ expert, highway engineer Thomas Broderick. The trial court found that Broderick’s opinion regarding the cause of the clogging of the catch basin was “based entirely on pure speculation without any factual support,” and granted the motion to strike, but also granted plaintiffs leave to supplement their objections to the motions for summary judgment. Plaintiffs filed a supplemental objection, and submitted with it, among other things, an expert report written by a hydrologic/hydraulic engineer, Richard Murphy. The trial court declined to consider Murphy’s opinion on causation and granted defendants’ motions for summary judgment. The trial court denied plaintiffs’ motion to reconsider the order, and plaintiffs appealed. After review, the New Hampshire Supreme Court affirmed the order granting DOT’s motion to dismiss, but reversed the orders striking the expert reports and granting the motions for summary judgment. View "Szewczyk, et al. v. Continental Paving, Inc., et al." on Justia Law

Plaintiff Larissa Troy appealed a superior court order granting summary judgment in favor of defendants Bishop Guertin High School (BGHS) and Brothers of the Sacred Heart of New England, Inc. (BSHNE), based upon the court’s finding that the plaintiff’s claims were barred by the statute of limitations. In 1998, Shawn McEnany was convicted in Main of unlawful sexual conduct with a fifteen-year-old female student while McEnany was teaching at another school BSHNE owned and operated. Despite knowledge of this conviction, in 1990, BSHNE hired McEnany to each at BGHS. Plaintiff attended BGHS from 1992 to 1996. In 1995, when plaintiff was seventeen years old and a high school senior, plaintiff alleged McEnany sexually assaulted her on two occasions on the BGHS campus. Despite reporting the second incident to the BGHS Dean of Students, no action was taken on plaintiff’s report. In 1997, McEnany was charged in New Hampshire with “teaching as a convicted sex offender and failing to register as a sex offender.” The headmaster of the school notified parents of McEnany’s conviction, but plaintiff alleged she first became aware of McEnany’s conviction in 2017. That year, McEnany passed away. In May 2018, plaintiff brought two common-law claims alleging defendants were: (1) negligent in hiring, retaining and supervising McEnany; and (2) negligent in failing to protect her when she was a student at BGHS. Viewing the evidence in the light most favorable to plaintiff, the New Hampshire Supreme Court concluded there was a material factual dispute as to when plaintiff knew, or in the exercise of reasonable diligence, should have known, that her injury was proximately caused by defendants’ conduct. Accordingly, the Court reversed the trial court’s grant of summary judgment and remanded for further proceedings. View "Troy v. Bishop Guertin High School, et al." on Justia Law

The United States District Court for the District of New Hampshire certified two questions of law for the New Hampshire Supreme Court's consideration. Plaintiffs, individuals who presently or formerly lived in the Merrimack area, brought tort claims, including negligence, nuisance, trespass, and negligent failure to warn, alleging that defendants’ manufacturing process at its facility in the Town of Merrimack used chemicals that included perfluorooctanoic acid (PFOA). They alleged PFOA was a toxic chemical that was released into the air from the Merrimack facility and has contaminated the air, ground, and water in Merrimack and nearby towns. As a result, plaintiffs alleged the wells and other drinking water sources in those places were contaminated, exposing them to PFOA, placing them at risk of developing health problems, including testicular cancer, kidney cancer, immunotoxicity, thyroid disease, high cholesterol, ulcerative colitis, and pregnancy induced hypertension. The first question from the federal circuit court asked whether New Hampshire recognized “a claim for the costs of medical monitoring as a remedy or as a cause of action” in plaintiffs' context. Depending on the answer to the first question, the second question asked, “what are the requirements and elements of a remedy or cause of action for medical monitoring” under New Hampshire law. Because the Supreme Court answered the first question in the negative, it did not address the second question. View "Brown, et al. v. Saint-Gobain Performance Plastics Corporation, et al." on Justia Law

In Corso v. Merrill, 119 N.H. 647 (1979), the New Hampshire Supreme Court held that a plaintiff need not be in the zone of danger to recover for negligent infliction of emotional distress. Instead, the Court announced a new rule intended to compensate plaintiffs who were not in the zone of danger but nevertheless suffered emotional distress as a result of a defendant’s negligence. In this case, the Court applied the Corso standard to allegations involving medical professionals’ negligent misdiagnosis, which resulted in the death of Lisa Chartier. Lisa’s husband, Marc Chartier, brought this action against defendants, Apple Therapy of Londonderry, LLC (Apple Therapy), Four Seasons Orthopaedic Center, PLLC d/b/a New Hampshire Orthopaedic Center (Four Seasons Orthopaedic), and Dr. Heather Killie. He appealed a superior court order granting defendants’ motion for partial summary judgment with respect to his negligent infliction of emotional distress claim. The Court found plaintiff alleged he suffered severe emotional distress manifested by physical symptoms from contemporaneously perceiving the sudden, unexpected, and shocking suffering and death of his wife. Under these circumstances, Lisa’s pulmonary embolism constituted the “accident” in line with Corso, and subsequent cases. The Court held the trial court erred in granting summary judgment to defendants on the basis that Marc’s emotional distress was too attenuated from defendants’ negligent conduct to permit recovery. On remand, the trial court was instructed to apply the elements of negligent infliction of emotional distress in a manner consistent with the Court’s opinion. View "Chartier v. Apple Therapy of Londonderry, LLC, et al." on Justia Law

Plaintiff Lorettann Gascard appealed a superior court order dismissing her complaint against defendants, Andrew Hall and Newspapers of New Hampshire, Inc., d/b/a Concord Monitor (Concord Monitor). The plaintiff asserts that the trial court erred in determining that a statement attributed to Hall and published in the Concord Monitor did not constitute defamation. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "Gascard v. Hall et al." on Justia Law

Petitioners Javier Vasquez and his employer, Matosantos International Corporation (MIC), appealed a New Hampshire Compensation Appeals Board (CAB) determination that it could not order respondent, The Hartford Insurance Company, to pay workers’ compensation benefits to Vasquez. The CAB concluded that the Department of Labor (DOL), and therefore the CAB, lacked jurisdiction under the New Hampshire Workers’ Compensation Law to interpret the workers’ compensation insurance policy that MIC had purchased from The Hartford. Because the New Hampshire Supreme Court concluded the CAB did have jurisdiction to consider and resolve the coverage dispute between MIC and The Hartford, it vacated the CAB’s decision and remanded for its consideration, in the first instance, of whether the policy purchased by MIC covered Vasquez when he was injured while working in New Hampshire. View "Appeal of Vasquez" on Justia Law

Claimant Caitlyn Wittenauer, appealed a New Hampshire Compensation Appeals Board (CAB) decision denying her workers’ compensation benefits. In 2019, Claiming injured her left shoulder lifting boxes at her job with Nike, Inc. An MRI disclosed that her “left shoulder was dislocated, with the ball joint out of place.” She received corrective surgery on December 17, 2019, followed by months of physical therapy treatments. On April 21, 2020, the claimant’s treating physician approved her return to full-time work with restrictions on lifting. She returned to work at Nike in May. The claimant received temporary total disability benefits beginning October 16, 2019, and ending May 4, 2020. On September 3, 2020, the claimant reported to her treating physician that her shoulder was feeling stiff and she was experiencing pain “when she tries to do anything overhead.” He limited her work to five hours a day with no other restrictions. On September 25, the claimant complained of pain in the left side of her neck, and her treating physician took her out of work. On November 19, the physician reported that his examination of the claimant did not demonstrate “any overt shoulder instability” and noted that the shoulder was “really significantly better since surgery and really no evidence of any gross instability.” claimant sought temporary partial disability benefits for the period September 4, 2020 to September 25, 2020, and temporary total disability benefits beginning September 26, 2020. The CAB ruled that the claimant did not meet her burden of proving by a preponderance of the evidence “that the medical treatments starting on 9/3/2020 and out of work order by [the treating physician] [was] causally related to the work injury on 8/15/2019.” On appeal, the claimant argues that the CAB erred: (1) by placing a burden upon her to demonstrate another work incident occurring between her return to work in May 2020 and her second onset of disability in September 2020; and (2) in failing to analyze and make findings as to whether her disability in September 2020 was due at least in part to the work injury she suffered in August 2019. The New Hampshire Supreme Court's review of the record supported the CABs determination. Accordingly, judgment was affirmed. View "Appeal of Wittenauer" on Justia Law

Petitioner The Lawson Group, the third-party administrator for the self-insured petitioner, Summit Packaging Systems (the employer), appealed a decision of the New Hampshire Compensation Appeals Board (CAB) that upheld a decision by respondent, the State Special Fund for Second Injuries (Second Injury Fund), to decline to reimburse The Lawson Group for benefits paid to the claimant. The employer hired the claimant in 2005 as a laborer and machine operator. The claimant was injured at work in January 2016, when she tried to catch a 65-pound spool of tubing as it fell. The claimant was out of work following the surgery, but returned in December 2016 in a modified duty capacity. In 2017, the CAB found that the claimant’s “surgery and subsequent treatment were and are related to the work injury” she suffered in January 2016. In August 2018, The Lawson Group applied to the Second Injury Fund for reimbursement. In a February 2019 letter, the Second Injury Fund denied The Lawson Group’s application because The Lawson Group had failed to: (1) establish that the claimant’s surgery constituted a subsequent disability by injury; and (2) demonstrate that the employer knew that the claimant had any permanent impairment before her surgery. Following a March 2020 hearing, the CAB upheld the Second Injury Fund’s denial of reimbursement. After a review of the CAB hearing record, the New Hampshire Supreme Court found no reversible error and affirmed the denial of reimbursement. View "Appeal of The Lawson Group, et al." on Justia Law