Bohan v. Ritzo

• Decision Date: 19 July 1996
• Docket Number: No. 94-696,94-696
• Parties: James BOHAN v. James and Carol RITZO.
• Court: New Hampshire Supreme Court

Page 597

679 A.2d 597

141 N.H. 210

James BOHAN v. James and Carol RITZO.

No. 94-696.

Supreme Court of New Hampshire.

July 19, 1996.

McLane, Graf, Raulerson & Middleton, P.A., Portsmouth (David Wolowitz, on the brief, and J. Kirk Trombley on the brief and orally), for plaintiff.

Dean, Rice & Howard, P.A., Manchester (Timothy S. Reiniger, on the brief and orally), for defendants.

BROCK, Chief Justice.

This appeal follows a Superior Court (Coffey, J.) jury verdict in favor of the plaintiff, James Bohan, for injuries occasioned by a dog owned by the defendants, James and Carol Ritzo. We affirm.

The following facts were adduced at trial. On January 12, 1993, the plaintiff was riding his bicycle on Clough Drive in Portsmouth. As he was passing in front of the defendants' house, he suddenly saw a small white dog about two feet away coming toward him from the defendants' driveway. Afraid the dog was coming toward his right leg to bite him, the plaintiff instinctively stuck his right leg out to ward off the dog. At the same time, the plaintiff looked down and to the right, toward the dog, and removed his right hand from the handlebar. The plaintiff then lost his balance and fell, as the front tire of the bicycle jackknifed. The entire incident took only a matter of seconds. The dog never bit or made physical contact with the plaintiff.

The plaintiff suffered severe injuries, including several broken bones which had to be repaired through complex surgery. The surgeon used screws and wires to hold his arm together, and had to operate a second time because the metal implants were interfering with the plaintiff's range of motion. The plaintiff was out of work for seven and one-half months after this fall and underwent many hours of physical therapy, some of which was quite painful.

The plaintiff brought an action against the defendants under RSA 466:19 (1992) (amended 1995), which imposes strict liability upon dog owners for damages occasioned by their dogs. The defendants moved to dismiss, arguing that the facts alleged in the writ did not constitute a legal basis for relief under RSA 466:19. The trial court denied the motion. The trial court also denied the defendants' motion for nonsuit, made after the plaintiff's opening statement. Prior to trial, the plaintiff moved in limine to exclude evidence of his prior bicycle accident and other work-related injuries. The court granted this motion. The court denied the defendants' request, during trial, to introduce three of the plaintiff's tax returns into evidence. Finally, the defendants requested jury instructions and a special verdict form, all of which sought to apply the comparative fault statute, RSA 507:7-d (Supp.1995), to the plaintiff's claim. These motions were denied. The jury found the defendants liable under RSA 466:19 and awarded the plaintiff $190,000.

On appeal, the defendants argue that the trial court erred: (1) in denying their motions to dismiss and for nonsuit with respect to the scope of RSA 466:19; (2) in refusing to grant their request for jury instructions and special verdict form regarding comparative fault under RSA 507:7-d; (3) in excluding from evidence the plaintiff's prior bicycle accident and his work-related injuries; and (4) in excluding from evidence the plaintiff's three income tax returns.

I. Scope of RSA 466:19

The denial of a motion to dismiss is proper if the plaintiff's allegations are "reasonably susceptible of a construction that would permit recovery." Wenners v. Great State Beverages, 140 N.H. 100, 102, 663 A.2d 623, 625 (1995) (quotation omitted), cert. denied, --- U.S. ----, 116 S.Ct. 926, 133 L.Ed.2d 854 (1996). We assume the truth of all well-pleaded facts alleged by the plaintiff and construe all inferences "in the light most favorable to the plaintiff." Id. The scope of review is essentially the same for a motion for nonsuit. Cf. Renovest Co. v. Hodges Development Corp., 135 N.H. 72, 75-76, 600 A.2d 448, 450-51 (1991) (stating standard of review for motion for nonsuit at close of plaintiff's case in a bench trial).

RSA 466:19 provides: "Any person to whom ... damage may be occasioned by a dog not owned or kept by him shall be entitled to recover such damage of the person who owns or keeps the dog...." We have held that the statute makes a dog owner strictly liable for harm caused by a dog's "vicious or mischievous acts." Allgeyer v. Lincoln, 125 N.H. 503, 506, 484 A.2d 1079, 1081 (1984).

The defendants assert that their motion to dismiss the writ and their motion for nonsuit after the plaintiff's opening statement should have been granted because a simple encounter with a dog is insufficient to support a claim under RSA 466:19. The plaintiff's allegations, together with the inferences reasonably drawn therefrom, meet the standard of mischievousness. See Allgeyer 125 N.H. at 506, 484 A.2d at 1081. Both the plaintiff's writ and opening statement set forth facts which, if believed by the jury after hearing the evidence, would be sufficient to establish a claim under RSA 466:19; namely, that the defendants' dog mischievously ran toward the plaintiff's leg as if to bite him, resulting in the plaintiff's reacting instinctively, falling, and badly injuring himself. We reject the defendants' argument that the plaintiff could not prevail unless the scope of liability under RSA 466:19 is extended to instances where an individual was simply "distracted" by the mere presence of a dog. The plaintiff did not rely on the "mere presence" of the dog; he alleged specific mischievous actions by the animal that were causally related to his injuries.

We also reject the defendants' argument that RSA 466:19 requires an actual bite or other direct physical contact. "When construing the meaning of a statute, we first examine the language found in the statute, and where possible, we ascribe the plain and ordinary meanings to words used." Appeal of Astro Spectacular, 138 N.H. 298, 300, 639 A.2d 249, 250 (1994) (quotations and citation omitted). "Courts can neither ignore the plain language of the legislation nor add words which the lawmakers did not see fit to include. The legislative intent is to be found not in what the legislature might have said, but rather in the meaning of what it did say." Id. (quotations, citation, and bracket omitted).

Nothing in the plain language of RSA 466:19 limits its application to situations where there is an actual bite or other direct physical contact. The statute simply makes dog owners strictly liable to "[a]ny person to whom ... damage may be occasioned by a dog not owned or kept by him." RSA 466:19. If the legislature intended to limit strict liability to cases where a dog's vicious or mischievous acts include an actual dog bite or direct physical contact, "it could easily have drafted the statute to do so. The legislature did not do so here, and we will not interpret the statute to expand the scope of the terms used." Appeal of Astro Spectacular, 138 N.H. at 300, 639 A.2d at 250 (citations omitted).

This construction does not, as the defendants contend, make a dog owner "an insurer" for every person who "walks or drives a bike past" their property. We merely follow the legislature's lead in holding dog owners responsible for keeping their dogs under control and, if they do not, holding them strictly liable for any damage which an injured person proves was occasioned by their dog's vicious or mischievous conduct.

II. "Comparative Fault" Under RSA 507:7-d

The defendants next argue that the trial court erred in refusing to grant their request for jury instructions and a special verdict form applying RSA 507:7-d comparative fault principles to this strict liability case. We disagree.

We review jury instructions as a whole to determine whether the trial court has "fully and correctly instruct[ed] the jury as to the law applicable to the case." Peterson v. Gray, 137 N.H. 374, 377, 628 A.2d 244, 246 (1993) (quotation omitted). If an error was made, it is reversible if "the jury could have been misled [by the erroneous jury charge] into basing its verdict on a misperception of the law." Id. (quotation and emphasis omitted). A court may refuse to give a requested instruction on either party's theory of the case if there is insufficient evidence in the record for that party to have met his or her burden of proof as to that theory, see Cowan v. Tyrolean Ski Area, Inc., 127 N.H. 397, 400-01, 506 A.2d 690, 693 (1985), i.e., insufficient evidence from which a rational juror could find for the moving party as to that theory, Hancock v. R.A. Earnhardt Textile Mach. Div., 139 N.H. 356, 357-58, 653 A.2d 558, 559 (1995). "[T]he test of adequacy of any charge is whether, taken as a whole, it fairly presented the case to the jury in such a manner that no injustice was done to the legal rights of the litigants." Peterson, 137 N.H. at 377, 628 A.2d at 246 (quotation omitted).

To determine whether a jury charge on comparative fault was required, we must construe the statute, looking first to the plain and ordinary meanings of the words used in RSA 507:7-d. See Appeal of Astro Spectacular, 138 N.H. at 300, 639 A.2d at 250. RSA 507:7-d provides:

Contributory fault shall not bar recovery in an action by any plaintiff or plaintiff's legal representative, to recover damages in tort for death, personal injury or property damage, if such fault was not greater than the fault of the defendant, ... but the damages awarded shall be diminished in proportion to the amount of fault attributed to the plaintiff by general verdict.

This statute applies to all tort actions, not merely actions founded in negligence. Compare RSA 507:7-d (applicable to all actions "to recover damages in tort") with RSA 507:7-a (1983) (repealed 1986) (applicable only to negligence actions). A strict liability case is an action "in tort," albeit a tort where liability is not premised on the defendant's "fault." See W. Keeton et al., Prosser...