Phipps v. McCabe

• Decision Date: 30 July 1976
• Docket Number: No. 7439,7439
• Citation: Phipps v. McCabe, 116 N.H. 475, 362 A.2d 186 (N.H. 1976)
• Parties: Aaron PHIPPS, by his mother and next friend, Lynne M. Phipps v. Ronald B. McCABE. Ralph R. PHIPPS v. Ronald B. Mc,CABE.
• Court: New Hampshire Supreme Court

Page 186

362 A.2d 186

116 N.H. 475

Aaron PHIPPS, by his mother and next friend, Lynne M. Phipps v.Ronald B. McCABE.

Ralph R. PHIPPS v.Ronald B. Mc,CABE.

No. 7439.

Supreme Court of New Hampshire.

July 30, 1976.

Coolidge, Cullinane & Cullinane, Somersworth (John F. Cullinane, Somersworth, orally), for plaintiffs.

Burns, Bryant, Hinchey, Cox & Shea and Michael F. Farrell, Dover, for defendant.

PER CURIAM.

These are actions to recover for personal injuries suffered by the minor plaintiff, Aaron Phipps, allegedly arising from an automobile accident, and for consequential damages to his father.Plaintiff's exception to the trial court's granting of defendant's motion to dismiss both actions for failure to state a cause of action was reserved and transferred by Mullavey, J.

On December 31, 1975, the defendant, Ronald B. McCabe, was involved in an automobile accident in Dover, New Hampshire, with another motor vehicle in which Lynne M. Phipps, mother of the minor plaintiff, was a passenger.The plaintiffs allege that as a result of this accident, Mrs. Phipps suffered severe dizziness and fainting spells.One such spell occurred five days later at her mother's home in Somersworth, New Hampshire, as she was carrying her son down a flight of stairs.The infant fell to the ground, suffering personal injuries.The plaintifffather has incurred medical expenses for his son's treatment.

The defendant's motion to dismiss both cases was properly granted because no cause of action was stated against the defendant.The rule in this State, as in a majority of jurisdictions in this country, has long been as stated in Restatement (Second) of Torts§ 281, Comment c (1965): 'In order for the . . . (defendant) to be negligent with respect to the . . . (plaintiff), his conduct must create a recognizable risk of harm to the . . . (plaintiff) individually, or to a class of persons-as, for example, all persons within a given area of danger-of which the . . . (plaintiff) is a member.If the . . . (defendant's) conduct creates such a recognizable risk of harm only to a particular class of persons, the fact that it in fact causes harm to a person of different class, to whom the . . . (defendant) could not reasonably have anticipated injury, does not make the . . . (defendant) liable to the persons so injured.'Jelley v. LaFlame, 108 N.H. 471, 238 A.2d 728(1968);Barber v. Pollock, 104 N.H. 379, 187 A.2d 788(1963);Cote v. Litawa, 96 N.H. 174, 71 A.2d 792(1950).

We do...