594 A.2d 1297 (N.H. 1991), 90-044, LaRoche v. Doe

Docket Nº:90-044.
Citation:594 A.2d 1297, 134 N.H. 562
Opinion Judge:HORTON, J.
Party Name:Robert LaROCHE, Administrator of The Estate of Mark Laroche v. Jane DOE and the State of New Hampshire.
Attorney:Upton, Sanders & Smith, Concord (Gary B. Richardson, orally, and Gilbert Upton on the brief), for plaintiff., John P. Arnold, Atty. Gen. (Daniel J. Mullen, Asst. Atty. Gen., on the brief, and Douglas N. Jones, Asst. Atty. Gen., orally), for State. Upton, Sanders & Smith, of Concord (Gary B. Rich...
Case Date:July 31, 1991
Court:Supreme Court of New Hampshire
 
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Page 1297

594 A.2d 1297 (N.H. 1991)

134 N.H. 562

Robert LaROCHE, Administrator of The Estate of Mark Laroche

v.

Jane DOE and the State of New Hampshire.

No. 90-044.

Supreme Court of New Hampshire.

July 31, 1991

Page 1298

[134 N.H. 563] Upton, Sanders & Smith, Concord (Gary B. Richardson, orally, and Gilbert Upton on the brief), for plaintiff.

Page 1299

John P. Arnold, Atty. Gen. (Daniel J. Mullen, Asst. Atty. Gen., on the brief, and Douglas N. Jones, Asst. Atty. Gen., orally), for State.

HORTON, Justice.

Two questions are presented in this appeal from a final order of the Superior Court (Manias, J.) dismissing the plaintiff's[134 N.H. 564] wrongful death action: (1) whether the State of New Hampshire waived its sovereign immunity by filing a general appearance and by failing to raise its sovereign immunity in a timely fashion; and (2) whether the court erred in dismissing the action against an unidentified defendant, "Jane Doe," asserted to be one of four known State employees, in her individual and personal capacity, and denying the plaintiff's subsequent motion to amend the writ to include the names of those four known employees. A subsidiary question under the second issue, assuming that the original action was properly dismissed and leave to amend properly denied, is whether res judicata bars a separate action which was filed by the plaintiff naming each of the four known employees as defendants. For the reasons stated below, we affirm the trial court's rulings in the original action. Our opinion today, however, does not erect a res judicata barrier to the subsequently-filed action.

The standard this court applies in reviewing a motion to dismiss is whether or not the plaintiff's allegations are reasonably susceptible of a construction that would permit recovery. Collectramatic, Inc. v. Kentucky Fried Chicken Corp., 127 N.H. 318, 320, 499 A.2d 999, 1000 (1985). For review purposes, we accept the plaintiff's allegations of fact as true, and, if they constitute a basis for legal relief, we must hold the motion to dismiss improperly granted. See id.

According to those allegations, on June 15, 1985, Mark LaRoche, the plaintiff's intestate, was killed when struck by a motorcycle operated by Mark Grigorenko, an intoxicated seventeen-year-old. Earlier that day, Grigorenko obtained an intoxicating beverage by entering the Interstate 93 North State Liquor Store in Hooksett and there purchasing a bottle of "Southern Comfort" from a female employee managing one of the cash registers. This employee did not request proof of age. Although Grigorenko was unable to identify the actual employee, personnel records disclose that only four female employees were on duty in the store on the date in question. None of these four employees has admitted to allowing Grigorenko to purchase the intoxicating beverage.

The plaintiff brought a wrongful death action naming as defendants "Jane Doe, an unknown person who was employed by the State of New Hampshire at the State Liquor Store on Interstate 93 North in Hooksett, N.H. on June 15, 1985," and the State of New Hampshire. The attorney general appeared generally on behalf of both defendants, but chose not to file a special plea or brief statement [134 N.H. 565] within thirty days of the return date of the writ. See Super.Ct.R. 28. In its pretrial statement filed on May 20, 1988, the State asserted its defenses as a general denial of the plaintiff's negligence claims, proximate cause, and comparative fault of the plaintiff. Without further elaboration, the State also indicated that it was waiving "none" of its defenses. Trial was scheduled for February 6, 1989.

Approximately one month prior to trial, and more than twenty months after the filing of the action by the plaintiff, the State filed a motion to dismiss the action against it on the ground of sovereign immunity. It asserted that the version of RSA 541-B:9 applicable to a tort claim arising in June of 1985 denied the superior court jurisdiction over the case. This motion was granted by the trial court, which dismissed the action without prejudice. The court similarly dismissed the action against Jane Doe because she was not a sufficiently...

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