Goodwin v. James, 90-177

• Decision Date: 02 August 1991
• Docket Number: No. 90-177,90-177
• Citation: 595 A.2d 504,134 N.H. 579
• Parties: Frederick W. GOODWIN and another v. David JAMES and another.
• Court: New Hampshire Supreme Court

Page 504

595 A.2d 504

134 N.H. 579

Frederick W. GOODWIN and another v. David JAMES and another.

No. 90-177.

Supreme Court of New Hampshire.

Aug. 2, 1991.

Ransmeier & Spellman, Concord (Diane L. Perin, on brief and orally), for plaintiffs.

Wiggin & Nourie, Manchester (Doreen F. Connor, orally and on brief and Jeffrey B. Osburn, on brief) for defendant David James.

Bouchard & Mallory P.A., Manchester (Catherine C. Catalano, on brief, and Kenneth Bouchard, orally), for defendant Faye James.

BATCHELDER, Justice.

This appeal is from a dismissal of a negligence action brought for personal injuries sustained by the plaintiff Frederick W. Goodwin, and a loss of consortium claim by the plaintiff Gertrude E. Goodwin. At the close of the plaintiffs' evidence, the case was dismissed by the Superior Court (Dickson, J.) upon a written order, in which the court concluded that there was no duty of care owed by the defendants to the plaintiff Frederick Goodwin. It is from this ruling that the plaintiffs appeal. We affirm the court's ruling as to the defendant Faye James and reverse its ruling as to the defendant David James, for the reasons that follow.

David James awoke on January 22, 1984, a Sunday, at his home in Union, to find that the outside temperature was twenty-six degrees below zero. His truck, a Chevy Luv, would not start, and he solicited the help of his friend and neighbor, Frederick Goodwin. Goodwin was at home in the company of two guests, one Farrington and one Shannon, both of whom had assisted Goodwin in starting his own car by the use of jumper cables from the Shannon vehicle. Goodwin agreed to help James and was joined in the enterprise by Farrington and Shannon. It was, in fact, Shannon who drove them to the James residence in his car, a Ford LTD.

An unsuccessful attempt was made to start the truck by using the jumper cables from the Shannon automobile. The truck was then pushed manually from its garage to the highway, so that it could be started by having the Ford LTD push it while the truck operator released the clutch to fire the engine on its compression stroke. David James requested his wife Faye to operate the truck throughout the maneuver and, in due course, she assumed her post at the steering wheel of the truck. Shannon then brought his Ford LTD to the rear of the truck to commence the pushing operation. Because the bumper of the Ford LTD was higher than the bumper of the truck, David James climbed onto the hood of the Ford to add weight in order to align the two bumpers. His weight alone was insufficient for the purpose, and he was joined almost immediately by Farrington. Their combined weight was likewise insufficient, and they were joined by Goodwin, who weighed approximately three hundred pounds. The combined weight of the three men on the hood was sufficient to bring about contact between the two bumpers.

When the Shannon vehicle started to push the truck, David James and Farrington were holding onto the rear aspect of the hood where it joins the area of the automobile body near the well for the windshield wipers. This gave them a handhold and a measure of security and stability. At the same time, Goodwin, who was located more toward the leading edge of the hood, was holding onto the closed tailgate of the pickup truck. James told Goodwin to stop holding onto the truck, and Goodwin released his hold and leaned back. After he did so, Goodwin did not hold onto anything on the car.

Goodwin testified that David James gave a hand signal to Shannon to begin pushing the truck with his car. As the vehicles proceeded along the highway for a short distance, the truck's engine started running, and Mrs. James pulled away from the Shannon vehicle. She testified that, looking through her side view mirror, she could see Farrington sitting on the hood of the car, but that she was not able to see Goodwin. Almost immediately after the vehicles parted, as the truck drove away, Goodwin fell forward and to the right, landing upon the highway. At that time, he was run over by the Shannon vehicle, giving rise to the injuries for which the plaintiffs seek damages in this litigation. The record reveals that the defendant David James, in response to questions about the safety of the whole pushing operation, testified that he knew at the time that it was "a bad safety idea."

At the close of the plaintiffs' evidence, the defendants' counsel each made oral motions for a directed verdict. The trial court granted the motions and later issued a written order. In its order, the court stated that:

"Considering the foreseeable risk and the relationship of the parties, the Court finds no duty of care at all by these defendants for the benefit of these plaintiffs. The plaintiff, Frederick Goodwin, was not ordered or asked to get on the hood of the Shannon vehicle. He did so voluntarily. If he was owed a duty, the duty owed him was by Daniel Shannon [the driver of the Ford LTD], not the defendants, David and Faye James."

The issue presented in this case is whether the trial court erred in granting the defendants' motions for directed verdict based on its determination that the defendants did not owe the plaintiff Frederick Goodwin a duty of care. The plaintiffs argue that it was foreseeable that Frederick Goodwin would be injured as a result of the defendants' conduct, and that the defendants therefore owed him a duty of care. According to the plaintiffs, this duty of care arose by virtue of the following facts: the whole pushing operation was organized by the Jameses for their own benefit; David James signaled the start of the operation; he knew that Goodwin was not securely seated on the car and would have realized that Shannon's view would be obstructed by the three men on the hood of the car; and finally, he admitted that he knew this particular activity was unsafe. The defendants, on the other hand, maintain that it was not reasonably foreseeable that their conduct would result in injury to Frederick Goodwin.

A motion for directed verdict may be granted only if the trial court 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. Vincent v. Public Serv. Co. of N.H., 129 N.H. 621, 624, 529 A.2d 397, 398 (1987). If the evidence is conflicting on a material issue, then the motion must be denied. Morrill v. Tilney, 128 N.H. 773, 778, 519 A.2d 293, 295 (1986). In the present case, "whether the defendants' conduct created such a foreseeable risk of harm to the ... plaintiff that defendants were under a duty to avoid it" is a question of law to be determined in the first instance by the trial court. Paquette v. Joyce, 117 N.H. 832, 834-35, 379 A.2d 207, 209 (1977); Prosser and Keeton on Torts § 37, at 236 (5th ed. 1984). We will uphold the trial court's ruling on a motion for directed verdict "when the record supports the conclusion that the trial [court] did not abuse [its] discretion in determining that no rational juror could find [for the non-moving party]." Vincent, supra 129 N.H. at 625, 529 A.2d at 399.

In order to recover for negligence, a plaintiff must show that ...