Figlioli v. R.J. Moreau Companies, Inc., No. 2003-676 (NH 1/6/2005)
| Decision Date | 06 January 2005 |
| Docket Number | No. 2003-676,2003-676 |
| Parties | KAREN AND FRANK FIGLIOLI v. R.J. MOREAU COMPANIES, INC. |
| Court | New Hampshire Supreme Court |
Thomas Craig, P.A., of Manchester (Thomas Craig on the brief and orally), for the plaintiffs.
Devine, Millimet & Branch, P.A., of Manchester (Richard E. Mills and Danielle L. Pacik on the brief, and Mr. Mills orally), for the defendant.
The defendant, R.J. Moreau Companies, Inc. (Moreau), appeals a jury verdict in the Superior Court (Brennan, J.) for the plaintiffs, Karen and Frank Figlioli. The plaintiffs were awarded compensation for personal injuries resulting from the collapse of a deck built by the defendant. The defendant contends the trial court erred by (1) allowing the plaintiffs to pursue a claim for enhanced compensatory damages, (2) denying the defendant's motion for directed verdict on the enhanced compensatory damages claim, (3) allowing the plaintiffs to proceed with a claim under the Consumer Protection Act (CPA), RSA ch. 358-A (1995 & Supp. 2004), (4) allowing testimony by a general practice surgeon regarding Karen Figlioli's neurological impairment, (5) allowing testimony regarding Karen Figlioli's lost earning capacity as a real estate agent and (6) allowing the plaintiffs to introduce evidence of uncontested construction defects. We reverse and remand for a new trial on the issue of damages.
The general facts and procedural history of this case are as follows: The plaintiffs purchased a lot from the defendant on May 28, 1997, on which the defendant built them a custom home with a second floor deck. The plaintiffs were on this deck on August 27, 2000, when it collapsed. Both plaintiffs suffered injuries; Karen Figlioli's injuries were more severe than her husband's.
The deck had two sources of support. The first consisted of exterior supports which extended diagonally from the far corners of the deck to connect to the side of the house. The second consisted of the points where the deck itself was attached to the house. After the collapse, an inspection revealed that the deck had been attached to the house with nails. It is uncontested that the deck should have been attached with lag bolts. The carpenter who built the deck, one of the defendant's employees, testified at trial that he forgot to put the lag bolts in the deck. This was the only evidence offered as to why there were no lag bolts in the plaintiffs' deck, although the defendant also offered evidence that an examination of all of the second story decks the defendant had built revealed only one other deck lacking lag bolts: a deck attached to the house next door to the plaintiffs' residence.
The plaintiffs filed a lawsuit against the defendant alleging breach of contract, breach of warranty, negligence, loss of consortium and a violation of the CPA, arising from the collapse of the deck and from other defects in the home. Prior to trial the parties settled all of the claims relating to property damage from the construction defects.
The plaintiffs continued their action for damages and economic loss due to the bodily injuries sustained in the collapse. They sought summary judgment on the issue of liability, which was granted on January 8, 2003. The remaining issues went to trial.
We first address the enhanced compensatory damages claim and the CPA claim. The defendant argues that the trial court should have ruled that both claims were procedurally barred, and therefore the plaintiffs should not have been allowed to proceed to trial on those claims. With respect to the CPA claim, this issue is moot, because at the close of the plaintiffs' case, the trial court granted a directed verdict for the defendant on the CPA claim, and the plaintiffs did not appeal the ruling. With respect to the enhanced damages claim, we conclude that the trial court erred by not granting the defendant's motion for a directed verdict on the merits of this claim. Therefore, we need not address the argument regarding whether it was procedurally barred.
We will uphold a trial court's ruling on a motion for a directed verdict when the record supports the conclusion that the trial court did not commit an unsustainable exercise of discretion. Dillman v. N.H. College, 150 N.H. 431, 434 (2003). A trial court may grant a motion for a directed verdict only if it determines, after considering the evidence and construing all inferences therefrom most favorably to the non-moving party, that no rational juror could conclude that the non-moving party is entitled to any relief. Id. However, the plaintiffs may not avoid a directed verdict by presenting evidence that is merely conjectural in nature. Rather, the plaintiffs must present sufficient evidence to satisfy the burden of proof such that a reasonable jury could find in their favor. Vautour v. Body Masters Sports Indus., 147 N.H. 150, 153 (2001).
When an act is wanton, malicious, or oppressive, the aggravating circumstances may be reflected in an award of enhanced compensatory damages. Crowley v. Global Realty, Inc., 124 N.H. 814, 818 (1984). These enhanced compensatory damages, sometimes called liberal compensatory damages, see Munson v. Raudonis, 118 N.H. 474, 479 (1978), are awarded only in exceptional cases, and not even in every case involving an intentional tort. Id.; Johnsen v. Fernald, 120 N.H. 440, 442 (1980). We must examine the evidence presented at trial and determine whether a rational juror, construing all inferences most favorably to the plaintiffs, could have found evidence sufficient to support a claim for enhanced compensatory damages.
The plaintiffs assert that the testimony of their expert, Kris Larsen, was sufficient to support a claim for enhanced compensatory damages. Larsen, a general contractor, testified that in his opinion there was "gross negligence in the deviation of the fastening of the deck to the structure which allowed for and created a very hazardous unsafe condition." He testified that the manner of constructing the deck was in "gross disregard for the safety of the people using the deck." Larsen also testified that the deck would have remained intact if it had been lag bolted.
Larsen, however, had never met the carpenter who built the deck, and he had no firsthand knowledge of the construction. The only evidence that was presented as to why the deck was not lag bolted was the testimony of the carpenter, Jon Latares. Latares testified that he had intended to replace the nails with lag bolts before he finished construction, but that he forgot to do so.
The plaintiffs argue that Latares' testimony was "simply not credible" and that "[a]rguably, it was not his forgetfulness but rather his usual practice that created this situation." Construing all of the evidence in the plaintiffs' favor, however, we find that no rational juror could conclude that the plaintiffs are entitled to relief on the claim for enhanced compensatory damages. In order to defeat the motion for a directed verdict, the plaintiffs were required to present evidence of wanton, malicious or oppressive conduct on the part of the defendant. The plaintiffs presented no evidence as to the reason their deck was not lag bolted except that the deck next door was not lag bolted either. The theories propounded by plaintiffs' counsel are not supported by anything more than conjecture.
In its denial of a directed verdict on the enhanced compensatory damages issue, the trial court relied upon Schneider v. Plymouth State College, 144 N.H. 458 (1999), finding little difference between the actions of the defendant college in Schneider and those of the defendant in this case. In Schneider, we upheld a verdict including enhanced compensatory damages because the defendant college failed "to investigate promptly and vigorously" allegations of sexual harassment. Schneider, 144 N.H. at 466. The defendant college had received multiple reports of sexual harassment from at least three professors at three different times, yet still failed to act. Id. at 460-61. The defendant college in Schneider repeatedly ignored reports from its own faculty that a student was being sexually harassed. The situation in Schneider is very different from this case, where the only evidence produced was that the defendant's employee forgot to lag bolt the deck.
The remaining issues concern events that took place at trial; we will address those issues that are likely to arise on remand. Simpson v. Calivas, 139 N.H. 1, 13 (1994).
The defendant next argues that the trial court erred by allowing Dr. Patrick Mahon to testify as to Karen Figlioli's neurological impairment and her whole person impairment, derived from the American Medical Association Guidelines (AMA Guidelines). Mahon is a general and vascular surgeon. He testified that general surgery is "a fairly broad area of surgery, . . . complete management of trauma, abdominal surgery, endocrine surgery, head and neck surgery. . . ." Vascular surgery "is the surgery of the blood vessels, excluding the heart and excluding blood vessels in the brain . . . ."
Mahon was hired by the plaintiffs to assess the consequences of the injury to Karen Figlioli's spleen, evaluate the other medical reports, and determine her combined impairment assessment. He testified, using the AMA Guidelines, that Karen had a combined thirty-two percent whole person impairment, which he described as a measure of her decreased functioning as a person. Mahon testified that he had never used the AMA Guidelines prior to this case.
He was also asked to give his opinion on the extent of Karen's neurological impairment. Mahon is not a neurologist and claimed no expertise in the field of neurology, but he testified that Karen had a fourteen percent neurological impairment. The defendant argues that Mahon lacked the education and experience to qualify him as an expert in either of these matters. We agree.
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