Hurley v. Public Service Co. of New Hampshire
| Decision Date | 31 August 1983 |
| Docket Number | No. 82-394,82-394 |
| Citation | 465 A.2d 1217,123 N.H. 750 |
| Parties | James HURLEY v. PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE. Darrel D. LYNCH, Jr. v. PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE. |
| Court | New Hampshire Supreme Court |
Boynton, Waldron, Doleac, Woodman & Scott, Portsmouth, and Griffin, Harrington, Brigham, Ritzo & Swanson P.A., Portsmouth (Charles B. Doleac, on brief and orally, and Dale T. Swanson, Portsmouth, on brief), for plaintiff James Hurley.
Ouellette, Hallisey, Dibble & Tanguay, Dover (William L. Tanguay, Dover, on brief and orally), for plaintiff Darrel D. Lynch, Jr.
Sulloway, Hollis & Soden, Concord (James L. Kruse, on brief and orally, and James E. Owers, Concord, on brief), for defendant.
The question presented in this appeal of two cases consolidated for trial is whether our comparative negligence statute, RSA 507:7-a (Supp.1979), permits a plaintiff in a multiple defendant negligence action to recover so long as the plaintiff's negligence does not exceed the total causative negligence of all the defendants. We hold that it does.
The facts which give rise to this appeal may be simply stated. On October 1, 1976, the plaintiffs, James Hurley and Darrel Lynch, Jr., participated, along with other youths, in a prank following a soccer game at Oyster River High School. The prank entailed the placement of some thirty-foot-long aluminum irrigation pipes across Coe Drive, a roadway bordering the soccer field, over which the visiting team's bus was expected to travel. The passengers alighted from the bus, however, and removed the pipes from the roadway, and the bus proceeded without incident. While returning the pipes to their original location, the plaintiffs and another youth, for no apparent reason, raised one of the pipes to a vertical position and in so doing, caused it to come in contact with a 34,500-volt electric transmission line owned and maintained by the defendant Public Service Company of New Hampshire (PSNH). As a result of the transfer of electricity to the aluminum pipe which they were holding, both Hurley and Lynch suffered severe burns and sustained permanent injuries.
Subsequently, the plaintiffs instituted the underlying actions against PSNH and the Oyster River School District, alleging causal negligence on the part of PSNH in maintaining the overhead transmission line next to the school athletic field, and in failing to warn the public of the dangers of the line, as well as a breach of safety standards. The claims against the defendant school district alleged causal negligence in the design, construction and supervision of the soccer field, both generally and upon the day of the accident, in particular. The plaintiffs also brought counts against New England Telephone Company which they voluntarily non-suited with prejudice prior to trial.
The comparative negligence statute, on which this appeal is based, provides in relevant part:
The Trial Court (Temple, J.) instructed the jury that in determining liability under New Hampshire's comparative negligence statute, RSA 507:7-a (Supp.1979), it was the jury's duty to compare the negligence of each plaintiff to the combined or aggregate negligence of the two defendants. The trial court submitted to the jury a special verdict form which provided, in part, that it was the jury's obligation to determine damages if the percent of negligence attributed to the defendants was fifty percent or more "either separately or added together."
The trial court specifically instructed the jury, with respect to RSA 507:7-a (Supp.1979), that "where recovery is allowed against more than one defendant, then each defendant shall be liable for that proportion of that total dollar amount of damage in [the] ratio [of] the amount of his or its causal negligence to the amount of causal negligence contributed [by] all defendants against whom recovery is allowed." The judge also used an illustrative example of comparative fault, and concluded this phase of the jury instructions by stating: "[F]or a plaintiff to recover under comparative negligence then the plaintiff's fault cannot exceed that of the defendant, or defendants in this case."
The jury returned its special verdict forms, making the following findings of negligence in each case:
Party Percent of Fault
----- ----------------
Hurley (Plaintiff) 50%
School District (Defendant) 25%
PSNH (Defendant) 25%
----------------
Total 100%
Party Percent of Fault
----- ----------------
Lynch (Plaintiff) 50%
School District (Defendant) 25%
PSNH (Defendant) 25%
----------------
Total 100%
As a result of these findings, the jury found that Hurley incurred $125,000 in damages and that Lynch incurred $30,000 in damages. PSNH excepted to the trial judge's instructions and the special verdict form, and also moved for a judgment notwithstanding the verdict. The motion was denied and PSNH appealed. The school district however settled with the plaintiff prior to the appeal's being heard.
The company contended at trial, as it does on appeal, that a defendant is entitled to have its fault compared individually to each plaintiff without regard to the fact that there is another defendant or other named defendants. PSNH argues that RSA 507:7-a (Supp.1979) does not permit a plaintiff recovery against one of the defendants who has been found to be less negligent than the plaintiff.
Much has been written about the efficacy of comparative negligence statutes, such as RSA 507:7-a (Supp.1979), which modify the common-law concept of contributory negligence so as to mitigate the harshness and irrationality of deeming any negligence on the part of the plaintiff to be a complete defense. See, e.g., Prosser, Comparative Negligence, 41 Calif.L.Rev. 1 (1953). Consistent with the national trend, contributory negligence is no longer a defense in this jurisdiction. Russell v. Hixon, 117 N.H. 35, 40, 369 A.2d 192, 195 (1977).
"The New Hampshire legislature has indicated in its comparative negligence statute, that where a plaintiff's negligence is a relevant inquiry, and is found to exist, recovery should not be barred, but [should be] reduced in the ratio that the negligence of the plaintiff contributed to the injury." Cyr v. B. Offen & Co., Inc., 501 F.2d 1145, 1150 (1st Cir.1974). RSA 507:7-a (Supp.1979) is recognized as the first statute in this country permitting a plaintiff to recover when he is equally or less responsible for his injury. See Note, Comparative Negligence 81 Colum.L.Rev. 1668, 1673 n. 30 (1981). This approach of permitting recovery where the plaintiff is equally at fault has gained much support and has been adopted in fourteen other states. See C. Heft and C.J. Heft, Comparative Negligence Manual, 118-19 (Appendix II) (Supp.1982).
The defendant urges us to adopt an interpretation of RSA 507:7-a (Supp.1979) which would require the comparison of the plaintiff's conduct separately against the individual conduct of each of multiple tortfeasors named as defendants in a single lawsuit and found to be liable. RSA 507:7-a (Supp.1979) states that a plaintiff will not be barred from recovery by his own negligence "if such negligence was not greater than the causal negligence of the defendant." PSNH contends that use of the singular word "defendant" is controlling on this issue. We do not find the use of the singular to be...
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