2010-707 Dana Chatman v. James Brady & a.

No. 2010-707

Strafford

Superior Court (Wageling LYNN, J. The plaintiff, Dana Chatman, appeals a decision of the

Sullivan & Gregg, P.A.

Bussiere & Bussiere, P.A. immunity statute. We reverse and remand. James Brady and Lee Country Fair, pursuant to RSA 651:70 (2007), an , J.) dismissing his lawsuit against the defendants,

Country Fair. Manchester (Jason D. Gregoire on the joint brief and orally), for defendant Lee for defendant James Brady, and Sheehan Phinney Bass + Green, P.A., of

orally), for the plaintiff.

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as put the plaintiff “on notice when he participated in the program that he could p. 2 will be my responsibility.” The defendants alleged that the information sheet statement: “While a participant in the Program, all medical expenses incurred In the AHC and Step Down Contract, the plaintiff initialed the following includes a segment on “Medical Coverage” that cites and quotes RSA 651:70. The information sheet contains a section on “Work Crew Guidelines,” which the Community Corrections Program initialed and executed by the plaintiff.” County Community Work Program,” and “an AHC and Step Down Contract for including “an information sheet provided to . . . participants by the Strafford public service as part of their sentence. They also filed supporting exhibits claims persons or organizations who use the services of offenders performing immune from liability under RSA 651:70, which protects from negligence The defendants moved to dismiss the writ, arguing that they were

truck while on soft, uneven ground was unreasonably dangerous. trailer hitch and welds, and that maneuvering the fully loaded trailer to the trailer prior to hitching it to the truck would cause excessive stress to the negligence. He alleged that Brady knew or should have known that loading the was negligent and that Lee Country Fair was vicariously liable for that The plaintiff filed a lawsuit against the defendants alleging that Brady 2

injuring him. weld on the trailer hitch failed, causing the trailer to fall on the plaintiff’s leg, soft, uneven ground. While the loaded trailer was being hitched to the truck, a hitched to a truck that also was owned by Brady. The trailer was sitting on Brady was present, the plaintiff loaded the items onto the trailer before it was in loading tables and chairs onto a trailer owned by defendant Brady. While help clean up the grounds at the site of defendant Lee Country Fair, assisting On or about September 9, 2007, the plaintiff’s work assignment was to

intermittently. control of Strafford County Community Corrections, and continued to do so costs. On June 24, 2007, he began participating in a work program under the daily fee associated with the bracelet, he was required to work to cover its was required to wear a monitoring bracelet. Because he could not afford the 2, 2007, the plaintiff was released to AHC. As a condition of his release, he (AHC). See id. After fourteen days of incarceration, which commenced on June with all but fourteen days to be served on administrative home confinement court sentenced him to one year in the Strafford County House of Corrections, a habitual offender, a felony offense. See RSA 262:23 (Supp. 2010). The trial In May 2007, the plaintiff pleaded guilty to operating a vehicle while certified as 160 N.H. 372, 373 (2010). We recite other facts in the record as are relevant. construed in the light most favorable to the plaintiff. See Khater v. Sullivan, writ are taken as true and all reasonable inferences drawn therefrom are For purposes of resolving this appeal, the allegations in the plaintiff’s construction that would permit recovery. See p. 3 consider whether the plaintiff’s allegations are reasonably susceptible of a In reviewing a trial court’s ruling on a motion to dismiss, we generally

both defendants. This appeal followed. statute. In a subsequent order, the court clarified that its dismissal applied to The court also rejected the plaintiff’s constitutional challenges to the immunity

request and direction of correctional officials. from liability when they permit individuals to work for them at the spirit and intent of the statute: to protect people and organizations

including this case within the ambit of [RSA] 651:70 serves the

to serve the remainder of his sentence on A.H.C. Moreover,

Corrections; instead he was receiving the benefit of being permitted

compensated monetarily by Strafford County Community in any way by either of the defendants. He was also not being

County Community Corrections, and was not being compensated part of his sentence. He was working at the direction of Strafford bracelet, a condition of his release to A.H.C., which was in turn

performing service in order to be able to wear a monitoring within the meaning of the statute when he was injured. He was [The plaintiff] was performing “uncompensated public service”

defendants’ exhibits. The court determined: Statement” and his objection to the motion to dismiss, and did not refer to the stated that the facts were taken from the plaintiff’s “Special Plea and Brief performed by the plaintiff at the time of his injury. In its ruling, the court the defendants immunity from negligence liability regarding the work The trial court dismissed the lawsuit, ruling that RSA 651:70 afforded

of an immunity statute, RSA 651:70. In granting the motion, the trial court defendants, however, moved to dismiss based exclusively upon the application

contract. AHC participants, and that the document did not qualify as a valid exculpatory document did not refer to RSA 651:70, that the statute was not applicable to respect to the AHC and Step Down Contract, the plaintiff contended that the document was not relevant to the applicability of the immunity statute. With been considered in the motion to dismiss context. He also argued that the information sheet that referenced RSA 651:70, the document should not have contended that because there was no verification that he actually received the The plaintiff objected to the motion to dismiss and to the exhibits. He

incurred’ would be [the plaintiff’s] responsibility.” negligence,” and that the contract “indicates that ‘all medical expenses not sue the Fair or any of its participants for anything other than gross p. 4 “[i]n return for the opportunity to take advantage of AHC, he forfeit[ed] some program guidelines and the AHC and Step Down contract. They argue that the AHC monitoring bracelet, as evidenced by the Strafford County work voluntarily perform uncompensated public service in order to cover the cost of contract with the Strafford County Community Corrections Program to “uncompensated public service.” Rather, they contend that he entered into a

The defendants agree that the plaintiff was not sentenced to

plaintiff challenges the constitutionality of the statute. cost of his AHC bracelet, and thus was compensated for his labor. Finally, the performing “uncompensated public service” since he was working to cover the conviction. He also argues that, as a factual matter, he could not have been order “uncompensated public service” for his felony habitual offender court nor the superintendent of the Strafford County jail had the authority to performing work pursuant to an AHC sentence, and neither the sentencing The plaintiff argues that RSA 651:70 is not applicable because he was

ordinary meaning to the words used. State v. Lamy determine its meaning, we first examine its language and ascribe the plain and (Emphasis added.) The meaning of this statute is the crux of this appeal. To

unless the person or organization is guilty of gross negligence.

person performing uncompensated public service under this No person or organization who utilizes the services of any N.H. at 3. expressed in the words of the statute considered as a whole. Jennings, 159 RSA 625:3 (2007). We are the final arbiters of the legislative intent as construe it according to the fair import of its terms and to promote justice. Furthermore, because RSA 651:70 is a provision within the Criminal Code, we advanced by the entire statutory scheme. Jennings, 159 N.H. at 3. of the legislature’s intent in enacting them and the policy sought to be person or organization or any damages caused by that person not in isolation. Id.; see RSA 21:1 (2000). Our goal is to apply statutes in light We also interpret a statute in the context of the overall statutory scheme and language that the legislature did not see fit to include. Lamy, 158 N.H. at 515. and will neither consider what the legislature might have said nor add see RSA 21:2 (2000). We interpret legislative intent from the statute as written chapter that governs sentencing, RSA chapter 651. RSA 651:70 provides:, 158 N.H. 511, 515 (2009); The immunity statute at issue, RSA 651:70, falls within the statutory

individual while performing such services for the benefit of the subdivision shall be liable for any damages sustained by an

trial court’s ruling is de novo. See State v. Jennings, 1 p. 5 59 N.H. 1, 3 (2009). ruled that the statute applied as a matter of law. Therefore, our review of the 5

The performance of uncompensated public service

when the plaintiff began participating in the work program, provided: authorized to order “uncompensated public service.” RSA 6 p. 5 51:68, as it existed In addition to the sentencing court, other government entities are

for those interests violated by the defendant’s conduct may be department of corrections, or the parole board will foster respect

ordered:

that in the opinion of the court, the commissioner of the of a sort

A sentencing court may order confinement.” See sentencing court, such as “working at gainful employment” or “home “uncompensated public service” from other types of release ordered by a added)). (Emphases added.) This statute distinguishes a release ordered for performing sentence under home confinement pursuant to RSA 6 p. 5 51:19” (emphasis while an order . . . prohibiting such operation is in effect” to “serve his or her habitual offender “convicted of driving a motor vehicle on the ways of this state “uncompensated public service.” See RSA 262:23 (sentencing court may order service under this subdivision the work program pursuant to an AHC sentence and not a sentence to perform purpose of obtaining and working at gainful employment, for the However, its scope is limited under RSA 651:70 to “uncompensated public the defendants agree, and the record supports, that the plaintiff participated in The term “uncompensated public service” is not defined by statute. sentencing court also may order release for a “day reporting program”). Here,

provided the correctional facility has a home confinement program. 6 p. 5 51:68-70, or to serve the sentence under home confinement, performance of uncompensated public service as provided in RSA

under a criminal sentence may be released therefrom for the committed to a correctional institution other than state prison his work. They also dispute the plaintiff’s constitutional challenges. any person who has been monetary compensation to Strafford County, and the plaintiff received none for sentenced, provided in part: (2007) (amended 2007). RSA 6 p. 5 51:19, as it existed when the plaintiff was e.g., RSA 651:19 (2007) (amended 2007); RSA 651:36-a (2007); RSA 651:68 release from incarceration ordered by an authorized government entity. See, statutory provisions that use the term demonstrates that it describes a type of

constituted “uncompensated public service” because they provided no rights under that contract.” Additionally, the defendants argue that his work p. 6 The defendants make no argument that these amendments apply to the the plaintiff began participating in the work program but before he was injured.

These amendments, however, became effective on August 17, 2007, after

(Supp. 2010). respect for those interests violated by the defendant’s conduct.” RSA 651:68 service of a sort that in the opinion of . . . the superintendent . . . will foster correctional facility” to order “[t]he performance of uncompensated public The current version of RSA 651:68 authorizes “the superintendent of a county

rules and regulations or as the court may order.

such terms and conditions as may be permitted by the facility’s Such release shall be for such terms or intervals of time and under

certain offenders as deemed appropriate by the superintendent. we do not consider the implications of RSA 651:36-a in this case. establish a day reporting program in lieu of incarceration for The superintendent of a county correctional facility may that the work site at issue here constituted municipality-owned grounds or property. Therefore, contend that this statute has any relevance in this case, and there is no indication in the record service at municipality-owned grounds or property.” (Emphases added.) The defendants do not town to have prisoners from the county correctional facilities perform uncompensated public uncompensated public service, RSA 651:68 (Supp. 2010). See superintendent of the county correctional facility to make arrangements with officials of a city or incarceration, RSA 651:19-a (Supp. 2010), and to order the performance of program, provides in part: “The county commissioners of any county may authorize the facility to establish, for certain offenders, a day reporting program in lieu of RSA 651:36-a, which was in effect at the time the plaintiff began participating in the work * provisions to grant authority to the superintendent of a county correction

We are aware that the legislature later amended the sentencing

149:2, :4. RSA 651:19-a, I, provides in part:

to perform “uncompensated public service.” * Strafford County Community Corrections had no authority to order the plaintiff participating in the work program, county correctional authorities such as (Emphases added.) As this statute makes clear, at the time the plaintiff began

III. By the parole board as a condition of parole.

condition of release under RSA 651:25; II. By the commissioner of the department of corrections as a

sentence; conditional discharge, release under RSA 651:19, or suspension of I. By the sentencing court as a condition of probation, p. 7 Reversed and remanded

consider the plaintiff’s constitutional arguments. Additionally, because we decide this case on statutory grounds, we need not

service” since he was working to cover the cost of his AHC bracelet. a factual matter, he could not have been performing “uncompensated public Given our holding, we need not consider the plaintiff’s argument that, as

the trial court to consider on remand. 651:70, we do not address such arguments in this appeal and leave them for contract or otherwise provide some basis for immunity independent of RSA incorporate RSA 651:70 as a contract term, create a binding exculpatory documents. To the extent the defendants argue that the documents AHC and Step Down Contract, the trial court’s order did not address these With respect to the Strafford County work program guidelines and the

erred in dismissing the plaintiff’s lawsuit. immunity under the facts alleged in this case, and, therefore, the trial court Accordingly, we conclude that RSA 651:70 does not afford the defendants DALIANIS, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred. county correctional facility under the 2007 statutory amendments. such service in the context of authority granted to the superintendent of a the work program, and the defendants do not argue that he was performing to order such “uncompensated public service” at the time the plaintiff entered under RSA 651:68. Strafford County Community Corrections had no authority “uncompensated public service” ordered by a government entity authorized

sentencing scheme, demonstrates that RSA 651:70 is limited to conclude that the plain language of the immunity statute, read within the As important as the policies identified by the defendants may be, we

in community service which benefits personal growth and charitable ends.” offenders to serve their sentences under [AHC] and, while doing so, participate immunity from negligence lawsuits,” and that the statutory scheme “allows supervise, the law provides protection for the organization in the form of organizations to take on criminals they do not know and will not control or advanced by the immunity statute, contending that “[i]n order to entice

“uncompensated public service.” The defendants emphasize the policies court or other authorized government entity for the performance of with the monitoring bracelet for AHC, even absent an order by the sentencing voluntarily enter a county work program in order to cover the costs associated RSA 651:70. They construe the immunity statute as applying when persons uncompensated public service, thereby forfeiting his right to sue as set forth in plaintiff’s lawsuit. Rather, they argue that the plaintiff volunteered to perform