Weldy v. Town of Kingston

• Decision Date: 17 July 1986
• Docket Number: Nos. 85-275,85-277,s. 85-275
• Citation: 128 N.H. 325,514 A.2d 1257
• Parties: Norman E. WELDY, Jr., Administrator of the Estate of Nancy WELDY v. TOWN OF KINGSTON. Denise GERRY b/m/n/f Roberta McCarthy v. TOWN OF KINGSTON.
• Court: New Hampshire Supreme Court

Page 1257

514 A.2d 1257

128 N.H. 325

Norman E. WELDY, Jr., Administrator of the Estate of Nancy WELDY v. TOWN OF KINGSTON.

Denise GERRY b/m/n/f Roberta McCarthy v. TOWN OF KINGSTON.

Nos. 85-275, 85-277.

Supreme Court of New Hampshire.

July 17, 1986.

Boynton, Waldron, Doleac, Woodman & Scott P.A., Portsmouth (Charles B. Doleac, on the brief and orally), for Norman E. Weldy, Jr., Administrator of the Estate of Nancy Weldy.

Bernard J. Robertson, Exeter, by brief and orally, for Denise Gerry b/m/n/f Roberta McCarthy.

Sheehan, Phinney, Bass & Green P.A., Exeter (David S. Brown, on the briefs, and Peter F. Kearns orally), for the Town of Kingston.

JOHNSON, Justice.

These appeals arise out of a single trial in which the plaintiffs sued the Town of Kingston for negligence in connection with a motor vehicle accident. In No. 85-277, the defendant contends that (1) the plaintiff, Denise Gerry, failed to prove that the Town of Kingston breached a duty of care, and that the breach proximately caused the plaintiff's injury; (2) the Trial Court's (Thayer, J.) jury instructions were inadequate; and (3) the jury verdict in favor of the plaintiff was excessive and required the trial court to grant a remittitur. The plaintiff Weldy in No. 85-275 requests that this court adopt the doctrine of "pure" comparative negligence, and asserts that RSA 507:7-a, the comparative negligence statute, violates the equal protection and due process provisions of the New Hampshire and Federal Constitutions. For the reasons that follow, we affirm.

On September 11, 1982, five teenagers, three males ages 19, 18, and 15, and two females ages 16 and 13, pooled their money to allow the nineteen-year-old to buy a case of beer for them. At the time, the drinking age in New Hampshire and Massachusetts was twenty. He purchased the alcohol in a store in Raymond, and was not asked to show any identification. The teenagers drank beer in the car for a short while before their vehicle was stopped by two Kingston police officers at about 8:20 p.m. The posted speed limit was 40 m.p.h., and the officers believed that the vehicle's speed was close to 65 m.p.h. No radar reading was obtained.

The officers approached the vehicle, and one officer removed a beer from the driver's hand and emptied it. The two older teenagers got out of the car and presented the police with identification. The names and ages of the other three teenagers were requested. No formal sobriety tests were given, although the police report indicated that "[a]ll the subjects seemed to have had something to drink and out of 24 bottles, there were 10 bottles missing." In addition, one of the officers observed that the driver had "glassy eyes." The unconsumed beer was confiscated, and the teenagers were permitted to proceed without further detention or parental notification. The officers informed the driver that a report concerning the illegal transportation of alcoholic beverages would be sent to the department of motor vehicles, and could result in the suspension of his license.

The occupants of the vehicle drove to Massachusetts. They decided, at the instigation of the two girls, to purchase more beer. The eldest teenager went into a liquor store in Haverhill, Massachusetts, and again was not asked for any identification. The teenagers continued to drink in the car, eventually arriving at a drive-in movie in Haverhill, where they drank beer until almost midnight. All or most of the second case of beer was consumed, and all of the teenagers were intoxicated.

The group left the movie theatre and eventually drove back to Kingston. While on Route 107, the teenagers noticed car headlights approaching from behind and, believing a police car might be heading towards them, drove off at a high rate of speed. The car failed to negotiate a curve, hit a cement marker, and overturned. Nancy Weldy, the sixteen-year-old girl, died as a result of the accident. Denise Gerry, the thirteen-year-old girl, sustained serious injuries, and her brother Kevin sustained minor injuries.

The plaintiffs brought suit against the driver of the vehicle, the two stores that sold beer to the teenagers, and the Town of Kingston. The suits against the driver and the two stores were settled before trial.

At trial, testimony disclosed that the policy of the Kingston Police Department at the time of the accident was to release teenagers found illegally transporting alcohol and write a letter to the department of motor vehicles. The officers were given discretion to decide whether to detain the teenagers and notify their parents. The officers involved here testified that they "couldn't reasonably anticipate" that the teenagers, once released, would purchase more beer. The officers, as well as some of the vehicle's occupants, testified that they believed that the driver was unimpaired and able to drive. At the close of the plaintiffs' case, the defendant moved for a directed verdict, and the trial court denied the motion.

The jury found that Nancy Weldy was 55% at fault and, pursuant to RSA 507:7-a, awarded her nothing. Kevin Gerry was awarded $5000, reduced by 50% in accordance with his comparative fault. The jury awarded Denise Gerry $325,000, reduced by 45% for her comparative fault.

In Denise Gerry's case, the defendant moved for judgment notwithstanding the verdict, to set aside the verdict, and for remittitur. The plaintiff in Nancy Weldy's case moved for judgment on the verdict for 45% of her damages and, alternatively, for a new trial on the issue of comparative negligence. The trial court denied all of the post-trial motions, and exceptions were taken. The defendant appealed in Denise Gerry's case, No. 85-277, and the plaintiff Weldy appeals in No. 85-275. No appeal was taken in Kevin Gerry's case.

I. Elements of Negligence

The first issue before us is the defendant's contention that the plaintiff in No. 85-277, Denise Gerry, failed to prove the elements of her negligence case. The defendant asserts that the trial court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict.

Our standard of review of a trial court's denial of motions for directed verdict and for judgment notwithstanding the verdict is extremely narrow. See Faust v. General Motors Corp., 117 N.H. 679, 683, 377 A.2d 885, 887 (1977). We will uphold a denial of these motions where sufficient evidence in the record supports the trial court's ruling. Reid v. Spadone Mach. Co., 119 N.H. 457, 462, 404 A.2d 1094, 1097 (1979). A party is entitled to a directed verdict only when the movant's case is "the sole reasonable inference from undisputed facts," and the non-movant's claim is completely without merit. See Cutter v. Town of Farmington, 126 N.H. 836, 839-40, 498 A.2d 316, 319 (1985).

The elements of negligence are a breach of a duty of care by the defendant, which proximately causes the plaintiff's injury. See White v. Schnoebelen, 91 N.H. 273, 274-75, 18 A.2d 185, 186-87 (1941). We first consider whether the defendant breached a duty of care owed to the plaintiffs. The test of due care is what reasonable prudence would require under similar circumstances. Fitzpatrick v. Company, 101 N.H. 35, 37, 131 A.2d 634, 637 (1957).

The Town of Kingston's unwritten policy did not require detention of teenagers found illegally transporting alcohol, nor did it require the police to notify their parents. The town therefore contends that it is not liable for reasonable errors made in the exercise of police officers' discretion in determining whether to detain the teenagers.

RSA 180:2 provides that

"[w]hen any ... duly appointed police officer ... shall discover any person in the act of transporting intoxicating liquor in violation of this chapter or any other law of this state, ... it shall be his duty to seize all intoxicating liquors found therein being transported contrary to law.... Whenever intoxicating liquors being illegally transported shall be seized by an officer he ... shall arrest any person or persons in charge thereof."

(Emphasis added.) The use of the word "shall" in a statute generally indicates that the provision is mandatory. See Dover Professional Fire Officers Assoc. v. City of Dover, 124 N.H. 165, 169, 470 A.2d 866, 869 (1983). Good reasons justify the application of this statute to cases where teenagers are discovered illegally transporting alcohol. The dangers linked to the combination of minors, alcohol, and driving are well-documented. See generally Comment, The Politics and Consequences of the New Drinking Age Law, 13 Fla.St.U.L.Rev. 847 (1985). We therefore hold that RSA 180:2 requires police officers to arrest teenagers discovered illegally transporting alcohol. The failure of the Kingston police officers to do so was a breach of the statutory duty of care.

Moreover, we believe that, regardless of any statutory duty, action in accordance with the town's policy was a violation of the common law duty of due care. Police officers are obligated to protect the general public, and reasonable prudence dictates that teenagers illegally transporting alcohol be detained. The foundation of a cause of action for negligence is the doctrine of foreseeability. "Duty and foreseeability are inextricably bound together." Corso v. Merrill, 119 N.H. 647, 651, 406 A.2d 300, 303 (1979). Teenagers who are released after illegally drinking and driving foreseeably present a danger to the public and to themselves, and due care mandates that they be detained and their parents notified.

The defendant contends that the plaintiff, Denise Gerry, failed to prove that her injury was proximately caused by the defendant's conduct. Violation of RSA 180:2 constitutes negligence only if the violation caused the injury by creating a danger that the statute was intended to prevent. See Fontaine v. Charas, 87 N.H. 424, 426, 181 A. 417, 418 (1935). The requirement of proximate cause "confine[s] the liability of a...