2005-0262, JANET DEBENEDETTO, ADMINISTRATRIX OF THE ESTATE OF DAVID DEBENEDETTO v. CLD CONSULTING ENGINEERS, INC.

The plaintiff, Janet DeBenedetto, appeals an order of the

Hampshire Trial Lawyers Association, as amicus curiae. Manchester (Stephen E. Borofsky and Erica Bodwell, on the brief) for New R. Green on the brief) and Borofsky, Amodeo-Vickery & Bandazian, P.A., of Abramson, Brown & Dugan, of Manchester (Kenneth C. Brown and Jared

Donald L. Smith on the brief, and Mr. Dunn orally), for the defendant. Devine, Millimet & Branch, P.A., of Manchester (Andrew D. Dunn and

the brief and orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: Turgeon & Associates, of Amesbury, Massachusetts (Roger D. Turgeon on

JANET DEBENEDETTO, ADMINISTRATRIX OF THE ESTATE OF DAVID

editorial errors in order that corrections may be made before the opinion goes No. 2005-262 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as injury. p. 2 motorists lawfully passing through the intersection to an unreasonable risk of interminable red light and elect to proceed against it, thereby exposing all

lane, it was foreseeable that one or more drivers would become stuck at an

because CLD knew or should have known that motorists would use the center was no loop detector to detect cars in the center lane of the Wal-Mart exit, and green light during the next traffic cycle. The plaintiff alleged that because there

and signals the computer regulating the traffic control system, producing a design, selection, installation, or authorization of the traffic control system.

of the trial. grounds of immunity. Thus, CLD was the sole defendant remaining at the time absent from this trial. It is your duty to determine the There are a number of parties in this case, including those that are

DeBenedetto’s vehicle to roll over, resulting in his death. installed under the asphalt at an intersection that detects approaching vehicles language regarding apportionment of fault: passing through the intersection on a green light. The collision caused (NHDOT). The suit alleged that each named defendant was involved in the Before trial, CLD requested a jury instruction that included the following struck the rear quarter of the vehicle operated by DeBenedetto, who was

RayCor, and Roy, and the trial court granted NHDOT’s motion to dismiss on

detect cars in the center lane. A “loop detector” is a piece of equipment (RayCor); Leo Roy (Roy); and the New Hampshire Department of Transportation of shops across the street, a new “loop detector” should have been installed to attempted to cross Route 28 while the light was still red. Christous’ vehicle redesigned in 1999 to accommodate through traffic to the newly opened plaza At trial, the plaintiff claimed that when the exit from Wal-Mart was

Prior to trial, the plaintiff settled her claims against ECS, MHF, Cormier,

(MHF); Yvon Cormier Construction Corp. (Cormier); RayCor Development, Inc. passed, Christous apparently concluded that the traffic light was broken and entities: CLD; East Coast Signals, Inc. (ECS); MHF Design Consultants, Inc. to cross Route 28 from a Wal-Mart store. After approximately five minutes In June 2003, the plaintiff brought a wrongful death action against seven Route 28 in Derry. The other driver, Doris Christous, was waiting at a red light named as a defendant in the subsequent litigation. insurance carrier paid the $100,000 limit upon demand. Christous was not Christous had a motor vehicle liability insurance policy, and her

husband, David DeBenedetto, was killed in a two-car automobile collision on The record supports the following facts. On May 31, 1999, the plaintiff’s issue in turn. p. 3 court erred in denying CLD’s motion for directed verdict. We address each

percent fault to NHDOT was against the weight of the evidence; and (3) the trial

RayCor and Cormier; (2) the jury verdict apportioning no fault to ECS and two trial court erred by failing to instruct the jury that it could apportion fault to court erred in granting remittitur. CLD cross-appeals, claiming that: (1) the

to $3.8 million. provides, in relevant part:

governs apportionment of damages, was unconstitutional; and (3) the trial

did not find ECS negligent to any degree. 3

apportionment of fault at forty-nine percent but reducing the damages award apportioning fault to “non-parties” Christous and NHDOT. RSA 507:7-e the latter motions, but partially granted the motion for remittitur, leaving verdict and for judgment notwithstanding the verdict. The trial court denied percentages; (2) the trial court’s interpretation of RSA 507:7-e (1997), which

court denied this motion.

the damages awarded were attributable to “non-economic” damages. The jury

507:7-e, I(a), the trial court erred when it instructed the jury to consider The plaintiff first contends that, in light of the plain language of RSA be reduced to twenty percent. CLD also submitted motions to set aside the instructing the jury to consider Christous and NHDOT when assigning fault I. Christous and NHDOT

the verdict requesting that 100% of fault be apportioned to CLD. The trial

to Christous, and two percent of fault to NHDOT. Approximately $3 million of and apportioned forty-nine percent of fault to CLD, forty-nine percent of fault RayCor and Roy. The jury returned a verdict awarding $5.3 million in damages

damage award be reduced to $2.5 million, and that its apportionment of fault On appeal, the plaintiff asserts that: (1) the trial court erred by

The plaintiff also sought post-trial relief, submitting a motion to reform

well as Christous, ECS, and NHDOT. The instruction omitted MHF, Cormier,

CLD submitted a post-trial motion for remittitur, requesting that the doing so, you may attribute liability to an absent party. party may be responsible for the accident, or any part thereof. In they are here or not. You may consider evidence that another

percentage of fault, if any, of only the remaining named defendant, CLD, as requested. Instead, the trial court instructed the jury to determine the At the conclusion of the trial, the trial court did not give the instruction as

percentage of fault lies with each of the alleged tortfeasors, whether proportionate fault of each party. That is, you should decide what the word is employed in an arguably broader sense. p. 4 favor the plaintiff’s interpretation. However, reading RSA 507:7-e as a whole, accordance with the proportionate fault of each of the parties” could be read to

damages to be awarded to each claimant and against each defendant in

history of the statute to aid in our analysis.

framework for apportionment of liability and contribution.

of RSA 507:7-e. Reading RSA 507:7-e, I(a) in isolation, the phrase “amount of legislature did not see fit to include. “party” throughout RSA 507:7-e creates an ambiguity, we look to the legislative

150 N.H. 393, 395 (2003) (framework includes RSA 507:7-d (1997) through

RSA 507:7-e was enacted as part of a comprehensive statutory

parties and parties who settle prior to suit,” in order to effectuate the purpose not consider what the legislature might have said or add language that the include all parties who causally contribute to an accident, “including immune “defendant.” The defendant, however, argues that we must construe “party” to ‘litigant,’ but it did not do so.”). Because we find that the use of the word lawsuit’ then it could have easily used this language or a similar term such as 1273 (Miss. 1999) (“If the Legislature had intended to refer to ‘parties to a – (c), II; see also Estate of Hunter v. General Motors Corp., 729 So. 2d 1264,

be several and not joint and he shall be liable only for the

need not look beyond it for further indication of legislative intent, and we will “party” or “parties,” in the context of RSA 507:7-e, I, is “claimant” and The plaintiff argues that the “plain and ordinary meaning” of the word

Petition of State of N.H. (State v. Fischer), 152 N.H. 205, 211 (2005). N.H. at 103. We review a trial court’s interpretation of a statute de novo. context of the overall statutory scheme and not in isolation. DeLucca, 152 legislative history to aid in our analysis. be less than 50 percent at fault, then that party’s liability shall Id. We interpret statutes in the 762, 773 (2005). If a statute is ambiguous, however, we may consider

fault of each of the parties; and

100, 103 (2005). When a statute’s language is plain and unambiguous, we in the words of a statute considered as a whole. DeLucca v. DeLucca, 152 N.H. This court is the final arbiter of the intent of the legislature as expressed

rules of joint and several liability, except that if any party shall (b) Enter judgment against each party liable on the basis of the

against each defendant in accordance with the proportionate the amount of damages to be awarded to each claimant and (a) Instruct the jury to determine, or if there is no jury shall find,

I. In all actions, the court shall: fault,” sought to amend RSA 507:7-e “to treat fairly those entities which may be

p. 5 damage recoveries because of their potential money resources rather than their

recoverable damages.

“manufacturers, professionals and public agencies . . . become targets for pocket” defendants as a result of joint and several liability.

virtue of joint and several liability may be responsible for the entire amount of

away from joint and several liability.”

In 1989, the New Hampshire Legislature, recognizing that legislation seeking to ameliorate the “inequities” suffered by low fault, “deep tortfeasors to share in the apportionment of damages falls upon the defendant. system that employs both rules. See id. § 17 Reporters’ Note at 149. comparative-responsibility share of damages, see id. § 11, at 108, or a hybrid liability, whereby an injured plaintiff may only recover a defendant’s jurisdictions have adopted, in lieu of joint and several liability, pure several tortfeasors with significant assets but a potentially low degree of fault who by Apportionment of Liability injured plaintiffs to seek out and sue only “deep pocket” defendants –, § 17 Reporters’ Note at 149 (2000). A majority of Restatement (Third) of Torts: 14. Indeed, “[t]he clear trend over the past several decades has been a move Chianese v. Meier, 774 N.E.2d 722, 724 (N.Y. 2002); Alvarez, 735 A.2d at 313- Monroe Park West Associates, 44 F. Supp. 2d 910, 913 (E.D. Mich. 1999);

306, 312 (Conn. 1999). As a result, numerous jurisdictions have enacted amount of recoverable damages. The burden of joining other potentially liable See, e.g., Alvarez v. New Haven Register, Inc., 735 A.2d

The joint and several liability rule has the ancillary effect of enabling Laws 1986, 227:2; entered against “each party liable” on the basis of joint and several liability. id. immunity, insolvency, or jurisdiction must also be borne by the defendant. See risk that other nonparty tortfeasors cannot be joined in a suit for reasons of See id. comment b. at 101-02. Thus, pursuant to joint and several liability, the to comparative fault, apportionment of damages, and contribution.”

This allows a plaintiff to sue any one of several tortfeasors and collect the full damages. See Restatement (Third) of Torts: Apportionment of Liability § 10, at 99 (2000). 49 (Supp. 1987), in its treatment of comparative fault and apportionment of injuries may be held responsible for the entire amount of recoverable damages. and several liability, a defendant who is only partly responsible for a plaintiff’s

As originally enacted in 1986, RSA 507:7-e required that judgment be

45.

intended these provisions to function as a unified and comprehensive approach (1987). Indeed, when the legislature enacted this framework, “it clearly

Jaswell Drill Corp. v. General Motors Corp., 129 N.H. 341, 343-44

1986, 227:2, closely modeled the Uniform Comparative Fault Act, 12 U.L.A. 38- RSA 507:7-i (1997)). The “Act Relative to Tort Reform and Insurance,” Laws parties to the case. p. 6 contributing to the occurrence in question, whether or not they are named 6

includes all tortfeasors who are causally negligent by either causing or

at fault paying 100% of the loss, and there is no social policy that should So. 2d at 1273. “There is nothing inherently fair about a defendant who is 10% establishing that fault should properly lie elsewhere.” Estate of Hunter, 729 for the malfeasance of another and to thereupon forbid the defendant from apportionment purposes under RSA 507:7-e, I(b). patently unfair in many cases to require a defendant to be ‘dragged into court’ (Idaho 1984); otherwise not before the court (such as Christous) constitutes a “party” for see also Comparative Negligence Manual, supra. “It would be

of fault to the settling defendant and one percent of fault to the non-settling parties,” and affirmed the trial court’s verdict apportioning ninety-nine percent is that true apportionment cannot be achieved unless that apportionment see also Nilsson, 150 N.H. at 396-97. The underlying rationale for such a rule Negligence Manual § 14.9, at 14-12 (3d ed., Clark Boardman Callaghan 1995); unknown or immune tortfeasors when apportioning fault. 1 Comparative Many jurisdictions permit a jury to consider “nonparties” such as

settled with the plaintiff before trial. of whether a tortfeasor who is immune from liability (such as NHDOT) or employed in the context of RSA 507:7-e, did not include a defendant who Id. at 394, 396. We expressly declined, however, to reach the issue

507:7-e, I(b), the term “party” refers to “parties to an action, including settling Ultimately, we held that, for the purposes of apportionment pursuant to RSA an accident, defendants in a lawsuit, or all litigants in a lawsuit.” Id. “construing similar statutes” defined “party” to encompass “persons involved in N.H. at 396 (quotations omitted). We then recognized that other courts transaction” or “[o]ne by or against whom a lawsuit is brought.” Nilsson, 150 Black’s Law Dictionary defined “party” as “[one] who takes part in a lawsuit [Id. at 396. We disagreed, noting first that

plaintiff argued that the plain and ordinary meaning of the word “party,” as settling, as well as non-settling, tortfeasors. Nilsson, 150 N.H. at 395. The 507:7-e, instruct a jury to assess the percentage of fault attributable to In Nilsson, we considered whether a trial court may, consistent with RSA

The resulting legislation made New Hampshire a hybrid jurisdiction. only for those parties “less than 50 percent at fault.” See RSA 507:7-e, I(b). approach and instead passed a compromise measure adopting several liability N.H.S. Jour. 286 (1989). The legislature rejected this pure several liability

sic] could only be held liable for their percentage of the damages.”

No. 110 (1989), thereby providing “that defendants involved in personal injury that judgment be entered severally against “each party liable,” see Senate Bill (1989). The bill, as introduced, would have revised RSA 507:7-e, I(b) to require unfairly treated” under the rule of joint and several liability. N.H.S. Jour. 286 the term “party” is to be applied broadly. Construing M

p. 7 either by operation of law or because of a prior release.’ ” 7

apportionment language similar to New Hampshire’s, has also determined that

. . . whether or not they can be liable to the plaintiff or to the other tortfeasors

7(7) (1991), which provided that “[i]n actions involving joint tort-feasors, the

whether or not they are parties to the lawsuit.” The Supreme Court of Mississippi, interpreting statutory fault

“actual parties to the action,” comparative negligence jurisdiction. See IDAHO CODE § 6-801 (2004). attributable to each Inc., 227 N.W.2d 660, 662 (Wis. 1975)). Idaho, like New Hampshire, is a Co., 621 P.2d at 403 (quoting Connar v. West Shore Equipment of Milwaukee “when requested by any Pocatello Ind. Park

have the opportunity to consider the negligence of all parties to the transaction, occurrence giving rise to a plaintiff’s injuries. established without doubt that, when apportioning negligence, a jury must 621 P.2d 399 (Idaho 1980)). In so doing, the court recognized that “ ‘[i]t is P.3d 621, 627 (Idaho 2001) (citing Pocatello Ind. Park Co. v. Steel West, Inc.,

statute to encompass “parties to the transaction which resulted in the injury compare RSA 507:7-e, I(a). The Supreme Court of Idaho has interpreted the context of RSA 507:7-e, I(a), should be strictly construed to include only party. . . .” IDAHO CODE § 6-802 (2004) (emphases added); damages and the percentage of negligence or comparative responsibility

jurisdiction. For example, Idaho’s apportionment statute stipulates that a trial court must,

RSA 507:7-e have defined the term “party” to include persons involved in an As we noted in Nilsson, other jurisdictions construing statutes similar to

loss.” We disagree. defendants actually involved in the case whose actions have contributed to the

The plaintiff contends, however, that the term “parties,” as used in the

See RSA 507:7-d (1997).

excess of their proportion of fault). New Hampshire is a comparative fault purpose of comparative fault by improperly subjecting defendants to liability in (failure to include immune employers in apportionment process violates main Ins. Co. v. Truckstops Corp. of America, 914 F. Supp. 216, 220 (N.D. Ill. 1995) gives rise to a lawsuit.” Estate of Hunter, 729 So. 2d at 1273; cf. Northland consideration of the negligence of all participants to a particular incident which underlying the comparative fault doctrine would best be served by the jury’s Carroll v. Whitney, 29 S.W.3d 14, 21 (Tenn. 2000). “[T]he policy considerations jurisdictions as being compatible with the doctrine of comparative fault. See Apportionment of fault to nonparties is, moreover, recognized in many

Keill, 580 P.2d 867, 874 (Kan. 1978). compel defendants to pay more than their fair share of the loss.” Brown v. fair share of the loss.” p. 8 no compelling social policy which requires [a] codefendant to pay more than his

plaintiff cannot receive payment for his injuries from the . . . agency, there is

legally responsible for his or her proportionate fault.”

purpose of the legislature in adopting [K

implead any allegedly negligent non-party. governmental agency and if by reason of some competing social policy the

litigants or those litigants who have settled and received releases.

though one or more parties cannot be joined formally as a litigant or be held

the proportionate liability of [a] defendant,” concluded that “the intent and 933 (Conn. 2000). However, Connecticut’s comparative negligence statute,

“broaden the universe of negligence to be considered,” that defendant must of damages sustained by each of the claimants . . . .” K immunity: “[Although] one of the parties at fault happens to be a . . . Kearse, 662 A.2d 1269, 1275-76 (Conn. 1995). Thus, if a defendant wishes to

instance, has defined “party,” for fault apportionment purposes, as active among non-litigants is not permitted. The Supreme Court of Connecticut, for parties to the occurrence which gave rise to the injuries and damages even statutes that are similar to ours” and concluded that apportionment of fault The plaintiff asserts that at least four jurisdictions “have interpreted

considerations of judicial fairness.” Id. at 874. formally be joined as a party under the statute could be considered to “arrive at a case to a jury, and recognized that its holding was “based upon sound

negligence attributable to each of the parties, and determin[e] the total amount The court included in its analysis those parties possessing governmental

impose individual liability for damages based on the proportionate fault of all

tasked with determining whether the percentage of fault of one who cannot at trial would infringe upon a defendant’s right to present his or her version of 258a(b) (2005); compare RSA 507:7-e, I(a). The Supreme Court of Kansas,

action is an issue,” the trier of fact must “determin[e] the percentage of In Kansas, “[w]here the comparative negligence of the parties in [a civil] particular lawsuit or trial.” occurrence which gives rise to a lawsuit, and not merely the parties to a comparative negligence jurisdiction. See MISS. CODE. ANN. § 11-7-15 (2004). 1275; see also Mack Trucks, Inc., 841 So. 2d at 1113. Mississippi is a

The court noted that limiting a jury to a consideration of the fault of the parties So. 2d 1107, 1113 (Miss. 2003) (citing Estate of Hunter, 729 So. 2d at 1273). lawsuit,’ thus including immune parties.” Mack Trucks, Inc. v. Tackett, 841 enough to bring in entities which would not or could not have been ‘parties to a term “party,” in the context of MISS. CODE ANN. § 85-5-7(7), “swept broadly

at fault,” the court held that the term “party” referred to “any participant to an trier of fact shall determine the percentage of fault for each party alleged to be p. 9 9

cases inapposite to the instant dispute.

a similar result. one hundred per cent, that is attributable to each party to the action,” to reach

Indeed,

statute, N.J. S are party to suit). However, unlike RSA 507:7-e, New Jersey’s apportionment Ohio courts expressly limit apportionment to parties to a lawsuit, we find these 1 p. 9 991). Because the statutes interpreted, respectively, by the New Jersey and

Eberly v. A-P Controls, Inc., 572 N.E. 2d 633, 638 (Ohio agreement” with the claimant. I

requiring a trier of fact to find “[t]he percentage of negligence . . . in relation to plaintiff, the Supreme Court of Ohio construed analogous statutory language A.2d at 1303. Similarly, in Eberly v. A-P Controls, Inc., also cited by the N.J. STAT. ANN. § 2A:15-5.2 (2000) (emphases added); statutes have been interpreted to preclude apportionment among non-litigants. see also Bencivenga, 60 p. 9 9 percentages of negligence or fault of all the parties to a suit” totaling 100%. “[t]he percentage of negligence or fault of each party” with the “total of all

TAT. ANN. § 2A:15-5.2, explicitly requires the trier of fact to find has viable claim against a party).

Jersey Comparative Negligence Act, assessment of liability limited to those who also Straley v. United States, 887 F. Supp. 728, 742 (D.N.J. 1 p. 9 995) (under New the prerequisites to apportioning fault.” Id. at 1303 (emphasis omitted); see persons who have entered into a release, covenant not to sue, or “similar whom recovery is sought and the negligence of each party or parties to the suit 5.1 and 2A:15-5.2 makes “the negligence of the person or persons against Bencivenga states that the plain language of N.J. STAT. ANN. §§ 2A:15-

(N.J. Super. Ct. App. Div. 1 p. 9 992), as support for her position that similar limit the scope of the term “party” for purposes of fault apportionment. The plaintiff also cites Bencivenga v. J.J.A.M.M., Inc., 609 A.2d 1299

1 p. 9 994) (Iowa comparative fault regime precludes fault sharing unless plaintiff see also recoverable [economic and non-economic] damages. Spaur v. Owens-Corning Fiberglas Corp., 510 N.W.2d 854, 862 (Iowa

apportionment to claimants, defendants, third-party defendants, and those proximately caused by the negligence of more than one party, the State’s comparative fault and apportionment statutes, thereby limiting fault Similarly, the Iowa legislature explicitly defined “party” for purposes of

the plain language of the Connecticut statute expresses a legislative intent to CONN. GEN. STAT. § 52-572h(c) (emphasis added). Thus, unlike RSA 507:7-e,

claimant only for such party’s proportionate share of the party against whom recovery is allowed shall be liable to the

wrongful death . . . , if the damages are determined to be In a negligence action to recover damages resulting from . . .

apportionment than RSA 507:7-e: CONN. GEN. STAT. § 52-572h (2005), is far more specific on the topic of fault party possessing absolute immunity from liability is ninety percent at fault.

p. 10 purposes.

instructing the jury to consider the percentage of fault attributable to them.

verdict where, for example, that defendant is ten percent at fault and another

unconstitutional. First, she contends that RSA 507:7-e, I(a), as interpreted by

evidence before a jury or court may consider it for fault apportionment

at fault. In light of our holding, we conclude that the trial court did not err by

fairness precludes a defendant from bearing the entire weight of a damages actively defend his or her actions at trial.”). Nonetheless, we believe that establishing that nonparty caused or contributed to plaintiff’s injury). giving of depositions; and to testifying at trial even if he or she chose not to

The plaintiff advances two arguments that RSA 507:7-e, I(a) is

allegations of a non-litigant tortfeasor’s fault must be supported by adequate II. Constitutionality of RSA 507:7-e immunity,” and has articulated sound policy reasons for declining to do so. 507:7-e, I(b). several liability to those parties who are “less than 50 percent at fault.” RSA

On appeal, the plaintiff does not dispute that Christous and NHDOT were

nonparty only after it is convinced that defendant has met burden of still would be subject to process; to the burdens of discovery, including the Kansas law); see also Carroll, 29 S.W.3d at 21 (jury can apportion fault to

See Gust v. Jones, 162 F.3d 587, 593 (10th Cir. 1998) (interpreting

We note that a defendant may not easily shift fault under RSA 507:7-e; does not permit the apportionment of fault to entities enjoying “absolute

directly undermine the New Hampshire legislature’s decision to assign only

2004) (“Even though free from financial liability, the possessor [of immunity] See Lexington-Fayette Urb. Cty. Gov. v. Smolcic, 142 S.W.3d 128, 135-36 (Ky.

or otherwise not before the court. We are mindful that at least one jurisdiction the occurrence giving rise to an action, including those immune from liability or court to consideration of the fault of only the parties to an action would. . . settling parties,” Nilsson, 150 N.H. at 396, but to all parties contributing to giving rise to a plaintiff’s injuries. We believe that a rule of law limiting a jury RSA 507:7-e, the word “party” refers not only to “parties to an action, including have interpreted the term to include all parties to the transaction or occurrence Jour. 197 (2005). We hold, therefore, that for apportionment purposes under plaintiffs or defendants in the action.” Senate Bill 47 (2005); see also N.H.S. terms “party” and “parties” as “only those individuals or entities who are amendment to RSA 507:7-e that would have added a paragraph defining the Finally, we note that the legislature recently rejected a proposed

fault schemes and apportionment statutes similar to New Hampshire’s that We find persuasive the reasoning of those jurisdictions with comparative plaintiff’s right to seek a remedy for personal injuries, limit a plaintiff’s ability

p. 11 compensatory an action has been brought and tried. simply establishes standards for the apportionment of fault among parties once 11

of RSA 507:7-e. RSA 507:7-e itself does not, by its language, restrict a financial recompense from certain entities is of no consequence in our analysis discretionary function), may limit an injured plaintiff’s ability to acquire

seek full compensation from one of two or more negligent persons” without a 507:7-e will have the effect of depriving “innocent plaintiffs . . . of the right to obtain redress in the courts of New Hampshire for personal injuries. Rather, it Constitution.” In the plaintiff’s analysis, the trial court’s interpretation of RSA

not a fundamental right, is nevertheless an important substantive one.

foremost, promptly, and without delay; conformably to the laws. actors in various actions, including those arising from the performance of a being obliged to purchase it; completely, and without any denial; such as RSA 541-B:19 (1997) (retaining sovereign immunity for State or State

the rights of an “innocent plaintiff,” or any plaintiff for that matter, to seek and important substantive right that is protected by the New Hampshire Carson, 120 N.H. at 931-32. Furthermore, RSA 507:7-e does not infringe upon

only for the proposition that the “right to recover for personal injuries,” though to the principles of joint and several liability. injuries pursuant to the principles of joint and several liability. Carson stands

Carson does not establish a common law right to recover for one’s

We find the plaintiff’s argument in this regard unpersuasive. First, and property, or character; to obtain right and justice freely, without

quid pro quo.

infringements upon access to courts. (1980), the plaintiff further asserts that “[t]his common law right is an Apportionment of Liability § 10, at 99. Citing Carson v. Maurer, 120 N.H. 925

fault is entitled to recover full damages from any negligent tortfeasor pursuant of his injuries.” (Emphases added.) Thus, she argues that a plaintiff without from any negligent person who was a concurrent and proximate or legal cause contends that an “innocent plaintiff” is “entitled to recover his recourse to the laws, for all injuries he may receive in his person, full damages The plaintiff, citing Panagoulis v. Company, 95 N.H. 524 (1949),

N.H. 634, 640 (2002).

remedies readily available, and to guard against arbitrary and discriminatory N.H. CONST. pt. I, art. 14. The purpose of this provision is to make civil

Every subject of this state is entitled to a certain remedy, by having

which provides: the trial court, violates Part I, Article 14 of the New Hampshire Constitution, p. 12 Constitution.

“the amount of damages to be awarded to each claimant and against each

the appellant’s brief must specifically invoke a provision of the State

among plaintiffs. RSA 507:7-e, I(a) requires only that a jury or court determine its jurisdiction the equal protection of the laws.”

appellant must raise the State constitutional issue in the trial court; second, long as it bears a rational relation to some legitimate governmental end. preconditions before triggering a State constitutional analysis: first, the applies rational basis scrutiny, under which the classification will stand so Constitutions in support of this challenge. An appellant must fulfill two fundamental right nor targets a suspect class, federal equal protection analysis

but may treat unlike cases accordingly.

We do not agree that RSA 507:7-e, I(a) creates any such classifications Federal Constitution commands that no State shall “deny to any person within 2004). id.; see also Gary S. v. Manchester School Dist., 374 F.3d 15, 22 (1st Cir. only. See

she neglects to identify any specific provision of the State or Federal (1997). If a legislative classification or distinction neither burdens a

plaintiff’s equal protection argument. rights; rather, it embodies a general rule that States must treat like cases alike Center, Inc., 473 U.S. 432, 439 (1985). This provision creates no substantive Hampshire p. 12 Constitution. Cleburne v. Cleburne Living

The Equal Protection Clause of the Fourteenth Amendment to the

See id. at __. protection claim under the Equal Protection Clause of the Federal Constitution __ (decided April 12, 2006). Therefore, we address the plaintiff’s equal Federal Constitution precludes appellate review. State v. Burke, 153 N.H. __, interpreted by the trial court, violates the “Equal Protection Clause,” though held that a party’s failure to include a citation to a specific provision of the

brief. We will not, therefore, undertake a State constitutional analysis of the issues grounded in Part I, Articles 2, 12 or 14 of the State Constitution in her entitlement, we conclude that it does not violate Part I, Article 14 of the New case, the plaintiff did not unambiguously and specifically raise equal protection

State v. Dellorfano, 128 N.H. 628, 632 (1986). In the instant having recourse to the laws, for all injuries he may receive . . . .” N.H. C

full compensation for their injuries.

The plaintiff’s second constitutional challenge is that RSA 507:7-e, as

pt. I, art. 14. Because we believe that RSA 507:7-e does not infringe upon this

(1995). It stipulates only that a plaintiff “is entitled to a certain remedy, by

Part I, Article 14 does not guarantee that all injured persons will receive

plaintiff may seek. to bring an action against any party, or cap the amount of damages that a relatively low fault percentages.

p. 13 persons differently. conclude, therefore, that RSA 507:7-e, I(a) does not treat similarly situated

disparate treatment of similarly situated persons. rather than their degree of culpability. make exceptions for defendants made immune by statute or common law. We from that tortfeasor. Therefore, RSA 507:7-e, I(b), by its terms, allows for the fifty percent at fault, then the plaintiff may receive 100% of the damage award

the United States have recognized.

application to tortfeasors fifty percent or more at fault, reflecting an intention number of such jurisdictions have noted the inequity of “deep pocket” suits as Apportionment of Liability § 17 Reporters’ Note at 149. Legislatures in a threshold, much like RSA 507:7-e. pocket” defendants targeted because of their potential financial resources See Restatement (Third) of Torts: doctrine with pure several liability or a hybrid rule that employs a percentage to name a culpable tortfeasor in a suit. Moreover, RSA 507:7-e, I(a) does not 1273. Many jurisdictions have supplanted the joint and several liability that certain claimants, such as the plaintiff in the instant case, may elect not another plaintiff suffers the same injuries, but one of four tortfeasors is at least actual fault. discriminatory. Given our interpretation of RSA 507:7-e, I(a), it is irrelevant in personal injury lawsuits from damages liability exceeding their percentage of See, e.g., Estate of Hunter, 729 So. 2d at underlying purpose of the 1989 amendment was to relieve defendants involved The problem of “deep pocket” suits is one that jurisdictions throughout

liability, however, the legislature reserved the joint and several liability rule for

to alleviate the burden imposed by joint and several liability upon “deep

See N.H.S. Jour. 286 (1989). Specifically, the legislature sought may only receive twenty-five percent of the damages from any one tortfeasor. If for determining damages and apportioning fault is uniform and non-

above, the legislative history of RSA 507:7-e plainly demonstrates that an a legitimate governmental purpose. Cf. Gary S., 374 F.3d at 22. As we noted created by RSA 507:7-e, I(b) bears a rational relationship to the furtherance of Applying rational basis scrutiny, we conclude that the classification

actors, and each is attributed twenty-five percent of the fault, then the plaintiff upon the number and availability of claimants and defendants, the standard occurrence. For example, if a plaintiff suffers injuries caused by four separate tortfeasor. Though the result will inevitably differ from case to case, depending the percentage of fault attributable to each party contributing to the underlying damages must be affixed, and a percentage of fault must be calculated for each RSA 507:7-e, I(b), however, treats plaintiffs differently depending upon

Thus, subsection I(a) treats all claimants and defendants equally; an amount of defendant in accordance with the proportionate fault of each of the parties.” alternative measures that the legislature could have taken to better establish

p. 14 certain “procedural safeguards” within RSA 507:7-e, I, we need not hypothesize

Though the plaintiff argues that the legislature was required to establish unfairly prejudiced by the comparative negligence regime enacted in 1986. percent of fault for a plaintiff’s injuries, and that those defendants were

tortfeasors and reinstituted joint and several liability.

did not effectively protect the interests of defendants bearing less than fifty balance the interests of plaintiffs and defendants.

legitimate end.

Insurance,” the legislature established a system for contribution among

and illogical that it should have no further place in [the State’s] law.” Nixon, interests of defendants. It plainly believed that contribution among tortfeasors “a deep conviction that the contributory negligence rule was so basically unfair comparative negligence statute clearly demonstrates a legislative objective to legislature has sought to balance the interests of injured plaintiffs and the legislature first enacted a comparative negligence statute in 1969, motivated by From the inception of comparative negligence in New Hampshire, the

507:7-e, I(b) in its present form. See N.H.S. Jour. 286 (1989). certain entities under the revived joint and several liability rule, reenacted Three years later, the legislature, concerned with the unfair treatment of that the New Hampshire legislature enacted RSA 507:7-e, I(b) in pursuit of a See Laws 1986, 227:2.

With the 1986 passage of the “Act Relative to Tort Reform and

a] clearly intended abolition of joint and several liability . . . .”). Thus, the 1969 is rationally related to the object of the legislation. The New Hampshire whom recovery is allowed to his proportionate amount of fault . . . . [There was was . . . intended to limit the damages responsibility of each defendant against 225:1; see also Nixon, supra (“New Hampshire’s comparative negligence statute contributory negligence, but joint and several liability as well. See Laws 1969, benefit upon injured plaintiffs. However, the statute abolished not only defense attorneys in lawsuits with multiple defendants). We hold, therefore, doctrine of contributory negligence, the legislature bestowed a considerable cost of general liability insurance by eliminating “deep pocket” sought by Negligence Statute, 12 N.H.B.J. 17, 17-18 (1969). By doing away with the tortfeasors found to be more than sixty percent responsible intended to reduce The Actual “Legislative Intent” Behind New Hampshire’s Comparative

Furthermore, we believe that the distinction created by RSA 507:7-e, I(b)

1219 (N.J. 2002) (amendment limiting joint and several liability to only those unjustly burdened “deep pockets”); Erny v. Estate of Merola, 792 A.2d 1208, intended as a means of providing fair treatment for defendants, including App. 2002) (bill abolishing joint and several liability in favor of several liability regimes. See, e.g., Smiley v. Corrigan, 638 N.W.2d 151, 152 n.3 (Mich. Ct. a factor underlying the amendment of their respective states’ tort liability damages.

p. 15 “no reasonable person” standard.

have awarded approximately $2.5 million for “loss of enjoyment of life”

that the trial court’s initial discretionary review of a jury verdict is confined to a

impossible to conclude, based upon the evidence, that no reasonable jury could suffering” damages to $500,000. Rather, the plaintiff asserts that it was The plaintiff does not contest the trial court's ruling limiting “pain and

of discretion standard that we apply upon appellate review. We have never said

view of the merits of the case,”

maximum damage finding for loss of enjoyment of life of one million dollars.”

for considering remittitur, i.e., whether, considering the evidence in the light

(emphasis added), that is merely an articulation of the unsustainable exercise

jury was not influenced by partiality or prejudice, or misled by some mistaken manifestly exorbitant. is “so manifestly exorbitant that no reasonable person could conclude that the amount is conclusively against the weight of the evidence and if the verdict is overrule a trial court’s discretionary refusal to grant remittitur unless a verdict responsibility of the trial judge, who may disturb a verdict as excessive if its support a maximum damage finding for pain and suffering of $500,000, and a amount in question.” (Emphasis added.) While we have said that we will not and loss of enjoyment of life [was] excessive,” and that “the evidence would no reasonable jury could possibly award the trial court concluded that “awarding three million dollars for pain and suffering The plaintiff argues that the trial court “misconstrued the legal standard

whether the verdict is fair.

remittitur as to the damages award. Direct review of a damages award is the

In reducing the damages award from $5.3 million to $3.8 million, the

discretion, we will not reverse the trial court’s decision. Id. trial court’s sound discretion. Id. Absent an unsustainable exercise of

838 (2005). The proper standard for the trial court’s review of a jury award is

that object. Finally, the plaintiff contends that the trial court erred by granting

protection provisions of the Federal Constitution. between two classes of plaintiffs, RSA 507:7-e, I(b) does not violate the equal In light of our analysis, we conclude that, to the extent it differentiates

(decided June 15, 2006) (least restrictive means analysis not part of rational

Boulders at Strafford v. Town of Strafford, 153 N.H. ___, ___

liability for tortfeasors less than fifty percent at fault was rationally related to the desired balance of interests, as we believe that the introduction of several apportion any legal fault found among these four entities. p. 16 Court adopted CLD’s position and the jury was instructed to . . . the State of New Hampshire, . . . as well as CLD itself. The

legal fault of . . . Doris Christous, . . . East Coast Signals, Inc., and

apportion their legal fault. CLD wanted the jury to apportion the

a record sufficient to allow this court to decide an issue presented on appeal or not. . . . [Y]ou may attribute liability to an absent party. Beaudoin v. Beaudoin, 118 N.H. 325, 327-28 (1978). The burden of presenting Firefighters of N.H. v. HealthTrust, 151 N.H. 501, 507 (2004); see also unsustainable exercise of discretion in the trial court’s grant of remittitur. unsupported by the evidence or erroneous as a matter of law. See Prof’l conclusively against the weight of the evidence. As such, we find no We are bound by a trial court’s findings of fact unless they are negligent to any degree and thus CLD did not ask to have the jury compensatory, in nature, and therefore both manifestly exorbitant and Cormier Construction, MHF Design Consultants and Leo Roy were Cormier should be omitted from the jury verdict. that named but settling defendants Ray Cor Development, Yvon settling parties when apportioning fault pursuant to RSA 507:7-e, I(b). own design. CLD, however, now asserts that it “never agreed” that RayCor and Cormier. We agree with CLD that a court should instruct a jury to consider Thus, the trial court characterized the final jury instruction as one of CLD’s

fault lies with each of the alleged tortfeasors, whether they are here absent from this trial . . . . [Y]ou should decide what percentage of

determined that the jury’s damages award was punitive, rather than CLD agreed that there was not enough evidence produced to show

instruct the jury that it could apportion fault to settling defendants RayCor and However, in its order on apportionment on fault, the trial court noted:

There are a number of parties in this case, including those that are

instruction concerning apportionment: Nilsson, 150 N.H. at 394, 396. Prior to trial, CLD submitted a proposed jury reviewed the record, we conclude that the trial court could reasonably have See influence our review of the trial court’s decision to grant remittitur. Having jury verdict. These materials were not offered as evidence at trial, and do not CLD, on cross-appeal, argues that the trial court erred when it did not

“objectively assign a value to the enjoyment of life” consistent with the original The plaintiff offers various studies and law review articles purporting to findings as to NHDOT and ECS. Thus, we cannot review it on appeal.

p. 17 or its memorandum of law, raise for the trial court the issue of the jury’s and should be set aside. However, CLD did not, in any of its post-trial motions forty nine percent at fault was “decidedly against the weight of the evidence” contends that it was error for the trial court to do so.

danger, or it is obvious to him.” exempting the contractor from liability when that employer “discovers the contractor’s negligence” following an employer’s acceptance of the work, but 17

its memorandum, CLD took the position that the jury’s finding that CLD was trial court accordingly denied CLD’s motion for a directed verdict. CLD now defect and the dangers it posed. In support of its motion, CLD relied upon

protection of third parties who may be foreseeably endangered by the

for remittitur, as well as a memorandum of law in support of those motions. In contended, and as such was appropriate for consideration by the jury. The motions to set aside the verdict, for judgment notwithstanding the verdict, and grounds that the State, as the owner of the intersection, had knowledge of the when,” concluded that the issue was not as “clear-cut” as the defense weight of the evidence. Following the jury verdict, CLD submitted post-trial trial court, noting that there was “a question . . . as to what the State knew and responsibility of the employer would supersede that of the contractor. Id. The

independent contractors to a “general standard of reasonable care for the presented to the trial court, we cannot review it on appeal. motion for reconsideration. CLD failed to do so. Because this issue was never Russell v. Whitcomb, 100 N.H. 171 (1956), which adopted a rule holding in the order on apportionment of fault, CLD could have raised the issue in a

At the end of the plaintiff’s case, CLD moved for a directed verdict on the percent of the fault to NHDOT and no fault at all to ECS, was against the to the jury on apportionment of fault. VI. Motion for Directed Verdict

instruction was erroneous, and that the trial court misrepresented its position

CLD next argues that the jury verdict, insofar as it apportioned only two agreed to the omission of RayCor and Cormier from the trial court’s instruction V. Apportionment of Fault to ECS and NHDOT

Corrections v. Butland, 147 N.H. 676, 679 (2002).

We note, moreover, that if CLD believed that the trial court’s jury

apportionment. As such, we cannot disturb the trial court’s finding that CLD apportionment of fault as to CLD’s position on the jury instruction regarding record that contradicts the trial court’s specific finding in its order on (1984) (citing Sup. Ct. R. 13, 15). CLD is unable to point to any evidence in the falls upon the moving party. Brown v. Cathay Island, Inc., 125 N.H. 112, 115 the NHDOT employee stated: plaintiff’s motion for directed verdict. p. 18 the trial court did not unsustainably exercise its discretion by denying the record supports the trial court’s determination. Therefore, we conclude that

properly. Summing up his visit to the intersection following the “trouble call,”

State’s alleged superseding responsibility was plainly a jury issue, and that the

waiting. Everything seemed to work.

equipment problems and found none, and that the loops were operating that “[e]verything seemed to be working just fine,” that he searched for with it.” He further testified that, upon arriving at the scene, he discovered the proffered testimony tends to seriously undermine it. We conclude that the

BRODERICK, C.J., and DALIANIS, J., concurred.

intersection was operating. No one was backed up. No one was

the timing at the Wal-Mart exit because “[s]omeone felt there was a problem Rather than support CLD’s contention that a directed verdict was proper,

I looked for all the physical problems. I didn’t find anything. The

the moving party that no contrary verdict could stand. light most favorable to the nonmoving party, is so overwhelmingly in favor of by NHDOT on May 3, 1999. According to the employee, he was asked to check testimony elicited from a NHDOT employee regarding a “trouble call” received The only evidence offered by CLD in support of its contention is

court’s ruling on a motion for directed verdict. Thus, absent an unsustainable exercise of discretion, we will not reverse a trial the motion where sufficient evidence in the record supports the ruling. Id. motion for directed verdict is extremely narrow. Id. We will uphold a denial of Speedway, 151 N.H. 409, 413 (2004). Our review of a trial court’s denial of a

inference that may be drawn from the evidence, which must be viewed in the A party is entitled to a directed verdict only when the sole reasonable