2004-449, PAUL BROUGHTON v. DENNIS PROULX

twenty - seven unit apartment building in Manchester, where the plaintif f lived. The jury could have found the following facts. The defendant owned a

to the jury on the issue of comparative fault. We affirm. instructing the jury on the applica bility of a City Code; and (3) in its instruction comments made by opposing counsel during his opening statement; (2) by (1) by failing to sustain his objection to, and instruct the jury to disregard, Broug hton, $100,000 in damages. He contends that the trial court erred: verdict in the Superior Court (Abramson, J.) awarding the plaintiff, Paul BRODERICK, C.J. The defendant, Dennis Proulx, appeals from a jury

the brief, and Mr. Burt orally), for the defendant. Wiggin & Nourie, P.A., of Manchester (Gary M. Burt and Gail E. Bakis on

the brief and orally), for the plaintiff. Kazan & Shaughnessy, PLLC, of Manchester (Brian C. Shaughnessy on

No. 2004 - 449 Hillsborough - nor thern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

enhance [the] possibili ty” that the jury was biased toward him on the basis of He argues that the offending comments by plaintiff’s counsel “only served to plaintiff as an “unmarried, blue - collar worker, with no family or close friends.” op erated a property management company. By contrast, he characterizes the businessman who owned multiple apartment buildings, and also owned and The defendant asserts that at the time of trial, he was a successful

not ask the trial court to instruct the jury to disregard the offending comments. his opening statement, and the defendant raised n o further objection and did (Emphasis added.) Following the judge’s ruling, plaintiff’s counsel completed

ahead, [plaintiff’s counsel]. [Judge:] All right. I agree, but I’ll allow it just for background. Go

compliment, I don’t think it’s a proper opening s tatement. I object. [Defense counsel:] Your Honor, though I appreciate the

tried my fair share – cases before – he’s a partner in a large Manchester firm – and I’ve defe nse counsel] has tried probably a hundred of these types of So thank you for that compliment. And while it’s true [that take two days because we are experienced and good trial counsel. complimented [defense counsel] and [me]. She said it would only only expected to last two days and, in fact, [the Judge] [Plaintiff’s counsel:] As the Judge indicated last week, this [trial] is

occurred: During the plaintiff’s opening statement, the following exchange

prejudicial.” the defendant, the comments were “improper, irrelevant, and highly statement, and in failing to instruct the jury to disreg ard them. According to his objection to comments made by plaintiff’s counsel during his opening The defendant first argues that the trial court erred in failing to sustain

followed. accident. The plaintiff was awarded $100,000 in damages. This appeal the defendant was negligent and that his negligence was the sole cause of the surgery. He missed approximately eight weeks of work. The jury found that result of his fall, he sustained multiple fractures to his left arm, requiring onto an adjacent sidewalk and slipped and fell on a patch of black ice. As a apartment to go to work. After descending a set of exterior stairs, he stepped On December 9, p. 2 2001, at approximately 10:15 p.m., the plaintiff left his p. 3 3

obligation under an ordinance. If you find that the defendant, by You should also c onsider whether the defendant violated any

the ordinance and subsequently instructed the jury about it, as follows: defendant’s objection, the trial court, following a recess, took judicial notice of or that it was applicable to the site where the accident occurred. Over the trial demonstrating that the ordinance was in effect at the time of his accid ent ordinance had not been pled and the plaintiff had not offered any evidence at city ordinance relating to a landlord’s duty to maintain sidewalks. The instructions, the plaintiff requested the trial court t o take judicial notice of a After the close of evidence, but before closing arguments and jury

instructed the jury on it. We disagree. of the Manchester City Code (the ordinance), the trial court erroneously The defendant also argues that, after taking judicial notice of a provision

defendant’s arguments because they were not preserved. curative instruction). Accordingly, we decline to consider the merits of the N.H. p. 3 345, 347 - 48 (2002) (issue preserved for review where defendant requested instruction and no further objection was advanced. Cf. State v. Dowdle, 148 comments “just for background,” no request was made for a curative responded to counsel’s objection by stating that it agreed, but would allow the specific nature of the claimed impropriety. Moreover, when the trial court some portion of an opening statement is not proper and save for appeal the to the trial court for its consideration. It is not enough to simply assert that jury bias based upon the parties’ divergent back grounds – was never presented defendant’s current contention – that the comments enhanced the possibility of think that opposing counsel was making “a proper opening statement.” The Although defense counsel objected, he did so only on the basis that he did not claims it made with respect to certain comments by plaintiff’s counsel. court was not afforded an opportunity to correct the error the defendant now economy. T&M Assocs. v. Goodrich, 150 N.H. 161, 163 (2003). Here, the trial error it may have made and is grounded in common sense and judic ial review. This requirement affords the trial court an opportunity to correct any contemporaneous objection during trial to preserve an issue for appellate It is well established that a party must make a specific and

not preserved for appeal. We agree. ‘big firm’ lawyer.” For his part, the plaintiff contends that these issues were statements: [that] the defendant was wealthy, and could afford an expensive information “[left] the jury to draw the o nly inference it could from those to instruct the jury as to how it should consider the so - called “background” the parties’ divergent backgrounds. He maintains that the trial court’s failure p. 4 4

to throw out some sal t and sand.” It just doesn’t happen that way. landlord to be out there saying, “Oh, it’s now 32 degrees. I’m going Now, at 10 o’clock at night on a Sunday evening, you can’t expect a

his closing argument, defense counsel stated, in relevant part: on the public sidewalk, not on the defendant’s pri vate property. Later, during designed to elicit an admission from the plaintiff that the slip and fall occurred cross - examination of the plaintiff, defense counsel asked a series of questions all up Laval Street, he doesn’t o wn that either.” Subsequently, during his that his property line ends at the sidewalk and, basically, as the sidewalk runs that big building, but he doesn’t own the city sidewalks. And he will tell you his opening st atement, defense counsel remarked, “Now, [the defendant] owns sidewalk where the plaintiff fell was owned by the City of Manchester. During The record reveals that the defendant raised the issue of whether the

that he suffered any prejudice from lack of notice. defendant because the defendant has no t demonstrated on the record before us his reliance upon the ordinance to advance his negligence claim against the whether the plaintiff was required to plead or otherwise disclose prior to trial We review the defendant’s arguments in turn. We do not have to decide

clarify that he could not be held liable for failing to maintain a city sidewalk. insert the word “private” before the word “sidewalks” in its instructions to p ublic sidewalk. Specifically, the defendant argues that the trial court failed to that he was responsible for the accident even if the plaintiff’s fall occurred on a the defendant asserts that the trial court’s instruction misled the jury to believe defenses he had to the plaintiff’s claim of liability under the ordinance. Finally, claims that he was prejudiced because the jury was not charged on an y not able to properly prepare his case and advance relevant defenses. He also prejudiced by not being able to defend against it. In sum, he asserts he was no notice that the plaintiff would be relying upon the ordinance and thus was argues that it was error for the trial court to do so in this case because he had Duranleau, 99 N.H. 30, 32 (195 p. 4 4); N.H. R. Ev. 201. The defendant, however, Rule of Evidence 201 support the trial court’s right to do so. State v. notice of municipal ordinances. Both the common law and New Hampshire The defendant concedes that trial courts are authorized to take judicial

debris, hazards or obstructions.” drivewa ys in a safe condition and free of snow, ice and other dwelling unit to maintain all sidewalks, walkways, steps and owner of any structure or part thereof let for occupancy as a is the ordinance relevant to this case. “It shall be the duty of the plaintiff’s inj uries, this would amount to legal fault. The following if you find that the violation caused or contributed to cause some act or failure to act, violated provisions of an ordinance, and p. 5 5

cleared the ice and snow before the plaintiff’s fall or that conditions existed that defendant that it was either unreaso nable to expect that he should have his property at all hours and under all conditions. Had the jury believed the impossible for a landlord to guarantee that ice and snow can be cleared from that a landlor d guarantee the safety of others on his property; and (2) it is trial, the defendant relied upon two propositions: (1) the law does not require been no different than his defense to the common law negligence claim. At The defendant’s defense to a claim based upon the ordinance would have

claim o f prejudice. applicable to negligence per se. The record does not support the defendant’s defendant argues that he was prejudiced by not being able to present defenses prior notice of the plaintiff’s intent to rely upon the ordinance at trial, the governed by the “reasonable person” standard. Because he did not receive se standard upon him while the plaintiff’s common law negligence claim was The defendant also asserts that the ordinance imposed a negligence per

him of his opportuni ty to prepare his case and present defenses. plaintiff’s intent to rely upon the ordinance to help prove negligence deprived no support in the record that the defendant’s lack of prior notice of the the outset of the trial that the plaintiff was comparatively negligent. There is property at all times under all conditions. The defendant also contended from unreasonable and impossible for a landlord to clear ice and snow from his public sidewalk for which he was not responsible and that it would be plaintiff’s claim of negligence both on the basis that the accident occurred on a The record at trial demonstrates that defense counsel ably defended the

as unfortunate as it may have been, but an accident. exercise reasonable care or whether this was simply an accident, based upon all of this evidence, whether [the defend ant] failed to that. There’s no way we can do that. So, it’s for you to determine guarantee someone’s safety. It’s absolutely impossible for us to do the ice and snow. We told them what we did. But we can’t and snow. Well, that’s true. And we tried to maintain and treat Manchester House Code ordinance that says you have to treat ice know, that’s – again, that’s where lawyers get involved. There’s a and snow and remove the like [phonetic].” And that’s true. You maintain their property and keep them reasonably safe from ice Housing Code ordinance that says, “Landlords must try and and he can’t be. Finally, the Judge is gonna talk a little bit about a guara ntor for the safety of others on the property. He’s just not, that’s not the law. The Judge is gonna tell you that he’s not the to guarantee that no one could be injured on his property. And If that’s the law as you find it, then you’re requiring [the defendant] p. 6 6

confusing, and thus entirely inapp ropriate.” We disagree. on the issue of comparative fault were “internally inconsistent, misleading, and The defendant next argues that the trial court’s instructions to the jury

UniFirst Corp. v. City of Nashua, 130 N.H. 11, 13 (1987). the ordinance, but did not, he waived his right to object on appeal. See the trial court’s failure to refer to “private” sidewalks in instructing the jury on We conclude that because the defendant had the opportunity to object to

Again, defense counsel raised no objections to the instructions. going to correct before providing written copies of the instructions to the jury. had noticed several typographical errors in the jury instructions that it was the trial court called both att orneys back into the courtroom to tell them that it counsel had none. Additionally, after excusing the jury to begin deliberations, bench and asked if they had any objections to the instructions. Defense into the or dinance. Following its charge, the court called both attorneys to the instructing the jury, however, the trial court did not insert the word “private” “Then why don’t we make it ‘private sidewalks’? That’s how I interpret it.” In maintain the city sidewalks.” When defense counsel agreed, the court stated, just private sidewalks. The court replied, “Well, the City’s got the dut y to asked whether the court interpreted the ordinance to apply to city sidewalks, or ordinance, and in the context of discussing jury instructions, defense counsel After the plaintiff requested that the trial court take judicial notice of the

conclude that the defendant waived this argument. the ordinance only applied to private property and not public sidewalks. We the ord inance were misleading because the trial court did not make clear that Finally, the defendant asserts that the trial court’s jury instructions on

these issues for the first time on appeal. about a new theory of liability based upon the ordinance. We will not address instructions nor did he con tend that the jury needed additional instructions defendant never argued that he did not have time to prepare relevant jury preserved for our review. See In re Estate of Cass, 143 N.H. 57, p. 6 63 (1998). The raise this argument before the trial court, however, and, therefore, it is not the plaintiff’s claim of liability under the ordinance. The defendant did not of the ordinance because the jury was not instructed on any defenses he had to The defendant also argues that he was prejudiced by lack of prior notice

liable either under common law negligence principles or t he ordinance. would have made it impossible for him to do so, it could not have found him p. 7 7

to or greate r than the fault of the plaintiff, then the plaintiff is parties were at fault and that the fault of the defendant was equal will return a verdict in favor of the defendant. If you find that both the defendant, the plaintiff will not be allowed to recover, and you were at fault and the fault of the plaintiff was greater than that of substantial cause of the accident. If you find that both parties would amount to comparative negligence if it was a cause or the circumstances. A failure to fulfill this duty of reasonable care plaintiff exercised reasonable care for his own safety under all of circumstances. It is up to you to decide whether or not the prudent person would do under the same or similar the test of reasonable care, as I told you, is what the ordinary the conduct of each party cont ributed to cause the injuries. Now, that the plaintiff was at fault, you must determine to what extent the resulting damages without reduction. If, however, you find [against] the defendant and for the plaintiff in the full amount of you find the plaintiff was not at fault, you will return a verdict under the same or similar circumstances and to obey the law. If care for his own safety as a reasonably prudent person would plaintiff was at fault. The plaintiff was required to exercise such comparative fault, the burden is on the defenda nt to prove that the amount of legal fault attributable to the defendant. On the issue of at fault, he can recover damages, but only in proportion to the accident. To the extent that a plaintiff is 50 percent or less legal[ly] fault for an accident cannot recover damages arising out of [the] Under this law, a plaintiff who is more than 50 percent legally at must next consider whether the plaintiff was legally at fault. of them. If you find that the defendant was legally at fault, you fault of the plaintiff, or were, to some degree, the legal fault of each result of the legal fault of the defendant, were the result of the legal Under this law, you may find that the plaintiff’s injuries were the Now, this case has been tried un der the law of comparative fault.

comparative fault as follows: In the case before us, the trial court instructed the jury on the issue of

Speedway, 151 N.H. 409, 41 p. 8 8 (2004). in such a way that the jury could have been misled. Carignan v. N.H. Int’l taken in its entirety, fails to explain adequately the law applicable to the c ase civil case, we review jury instructions in context to determine if the charge, to the jury such that no injustice is done to the legal rights of the parties. In a them. A jury charge is sufficient as a matter of law if it fairly pres ents the case to inform the jury of the appropriate legal standards by which it is to resolve The purpose of jury instructions is to identify issues of material fact, and 8

comparative fault statute. Thus, the applicability of the doctrine of both sides of a lawsuit, the legislature enacted RSA 507 - 7:d (1997), the responsibili ty for injuries due to negligent conduct on the part of parties on to the recovery of damages. In an effort to allocate more equitably the At common law, a plaintiff’s contributory negligence was a complete bar

negligence on the plaintiff’s behalf was “a non - factor.” the extent of the plaintiff’s relianc e, thus implying that any comparative the defendant to discharge his duty of care and that the jury could determine duty to exercise care for one’s own safety; and (2) the plaintiff could rely upon entitled to presume that others will do so such that one is absolved from the that: (1) although every person is obligated to exercise due care, no one is internally inconsistent and misleading because the court instructed the jury the circumstances. Finally, he argues that the trial court’s instructions were render a verdict in his favor, even if it found that he acted reasonably unde r maintain his property, the jury was misled into believing that it could not had to decide whether, under the circumstances, he had breached the duty to He further contends that because the trial court did not instruct the jury that it

believed it was entitled to make such a finding, it was misled. his own safety. That is not the law, and to the extent the jury such that the plaintiff would have no duty to exercise due care for defendant to keep the property free from ice and snow at all hours, liberty to find that the plaintiff could have completely relied on the The trial court’s instruction advised the jury that it was at

charge. Specifically, he argues: The defendant challenges only the emphasized portion o f the trial court’s

(Emphasis added.)

he encountered are issues of fact for you. the plaintiff had to take precautions against the chance of danger maintain reasonably safe conditions of safety and what occasion plaintiff can place on the defendant’s performance of his d uty to reliance on the performance of the duty. How much reliance the entitled to place – then the plaintiff was entitled to place some maintain reasonable conditions of safety and the plaintiff was plaintiff – if you find the defendant owed the plaintiff the duty to his own safety. However, if you find that the defendant owed the absolve the party from his own duty of due care towards himself or pres ume that other persons will exercise due care and thereby has the obligation to exercise due care. No party is entitled to damages by the percentage of [the] plaintiff’s fault. Every person entitled to recover, but the Court will reduce the amount of p. 9 9

that a reasonably careful person would not do under the same or circumstances. Negligence may consist of either doing something [sic] careful person would use under the same or similar care. Reasonable care is that degree of care which a reasonable defendant’s part. Now, negligence is the failure to use reaso nable accident occurred without a showing of legal fault on the the accident or injuries. No liability is imposed merely because an does not necessarily mean that anyone is legally responsible for Now, the fact that there was an accident and injuries or damage s

jury on comparative fault, the trial court explained, in relevant part: believe that it could not render a verdict in his favor. Prior to instructing the he had breached the duty to maintain hi s property, thus leading the jury to not instruct the jury that it had to decide whether, under the circumstances, We also disagree with the defendant’s assertion that the trial court did

care for his own safety under all of the circumstances.” was for the jury to decide “whether or not the plaintiff exercised reason able safety,” hearkening back to its earlier, and unchallenged, instruction that it defendant’s performance of his duty to maintain reasonably safe conditions of jury to decide “[h]ow much reliance the plain tiff [could] place on the entitled to place some reliance upon it. The court clarified that it was for the that if the jury found the defendant owed the plaintiff a duty, the plaintiff was plaintiff from that duty, illustrat es that the trial court was correct in stating and that any duty the defendant owed to the plaintiff did not absolve the explained that the plaintiff was obligated to exercise due care for his own safety the plaintiff. The unchallenged portion of the instruction, in which the court place “some reliance” upon the defendant’s performance of his duty of care to instruction, the trial court specifically stated that the plaintiff was entitled to duty to exercise reasonable care for his own safety. In the challenged to rely upon the defendant to exercise due care to the exclusion of the plaint iff’s contention that the trial court instructed the jury that the plaintiff was entitled of clarity, is consistent with these principles. We disagree with the defendant’s comparative fault reveals that the challenged instruction, a lthough n ot a model Our review of the trial court’s instructions to the jury on the issue of

care when it is unreasonable to do so.” Id. to be determ ined,” because “[f]ull reliance may not be placed upon another’s circumstances in the light of which [the duty to exercise due care for oneself] is (1 p. 9 937). The right to rely upon the care of another “is only one of the duty to exercise due care for oneself.” Jackson v. Smart, 89 N.H. 174, 176 - 77 plaintiff’s right to rely upon the care of another “does not dispense with the negligence involves a breach of the duty to care for oneself. Specifically, a Recreational Softball League, 148 N.H. 407, 412 - 13 (2002). A plaintiff’s comparative fault is triggered by a plaintiff ’s negligence. Allen v. Dover Co - p. 10 10

NADEAU, DALIANIS, DUGGAN and GALWAY, JJ., concurred.

instructions. plaintiff was “a non - factor.” Accordingly, we find no error in the trial court’s the instructions implied that any comparative negligence on the p art of the on the law of comparative fault, we cannot say that the challenged portion of disagree. Given the unchallenged, and detailed, instructions by the trial court court’s instruction was internally incons istent and misleading, we again Finally, as to the defendant’s argument that the challenged portion of the

appeal, clearly allowed the jury to render a verdict in his favor. This portion of the instructions, which the defendant does not challenge on

care under all the circumstances. you to decide whether or not the defendant exercised reasonable person would do under like or similar circumstances. It is up to plaintiff. The test of reasonable care is what the ordinary prudent reasonable care was a legal cause of the injuries sustained by the plaintiff; third, that the defendant’s breach of duty to use breached that duty of reasonable care which he owed to the from all reasonably foreseeable risks; second, that the defendant the plaintiff to exercise reasonable care, to pr otect the plaintiff following three elements: First, that the defendant owed a duty to plaintiff must prove by a preponderance of the evidence the amounts to legal fault. In order to recover for negligence, the contributed to cause the injury or damage suffered by the plaintiff Failure to exercise due care, if you find it caused or substantially careful person would do under the same or similar circumstances. similar circumstances or failing to do something that a reasonably