New Hampshire Bar Journal
2007 Spring, Pg. 78.
Lex Loci: A Survey of New Hampshire Supreme Court Decisions
New Hampshire Bar JournalSpring 2007, Volume 48, No. 1Health Care & the LawLex Loci: A Survey of New Hampshire Supreme Court DecisionsBy Attorney Charles A. DeGrandpreOver one hundred and twenty-five years ago, the great jurisprudentialist, Oliver Wendell Holmes, succinctly described the workings of our common law in his great essay, "The Common Law."(fn1) The common law can be described, in a nutshell, as that law developed over centuries by case by case determination of the courts and can be contrasted with the statutory law duly enacted by a legislature and which is superior to the common law. Two recent decisions of the Court are good examples of the wondrous workings of the traditional development of the grand body of case law which we inherited from England and we know today as "the common law."
Duquette v. Warden, opinion issued January 19, 2007, examined the question whether or not New Hampshire superior court judges had the power to impose consecutive sentences in the ordinary criminal case. Surprisingly, RSA 651:2, which is the general sentencing provision of the New Hampshire Criminal Code, does not explicitly authorize consecutive sentences, although there are crimes in the Criminal Code(fn2) which do provide for imposition of consecutive sentences in certain particular instances. It is surprising that something as commonly accepted as consecutive sentencing is not explicitly statutorily authorized for use in the general criminal case. The question is an important one because the superior court judges have supported legislation in the past to give themselves such authority because, in the words of Justice Martin Loughlin, consecutive sentences are "a deterrent for the habitual offender." The Supreme Court first reviewed the legislative history and found that the rule, dating back to pre-Revolutionary War cases, is that "the principle that the selection of either concurrent or consecutive sentences rests upon the discretion of sentencing judges . . . [was] firmly rooted in common law." The Court found that the statute had once explicitly empowered judges the discretion to impose consecutive sentences but the law had been repealed in 1975, leaving the sentencing statute unclear as to whether a judge had the power to impose sentences consecutively. The Supreme Court, in the instant case, held that the common law power of judges to impose consecutive sentences remained in existence under the applicable rule that "[i]t is a general principle that the repeal of a statute which abrogates the common law operates to reinstate the common-law rule, unless it appears that the legislature did not intend such reinstatement."(fn3)
A second case illustrating the workings of our common law, St. Onge v. MacDonald, opinion issued January 26, 2007, was a simple tort case claiming negligent infliction of emotional distress. It appeared that the plaintiff was driving a motorcycle with his girlfriend as a passenger while the defendant followed them in his car. The motorcycle left the roadway and crashed causing the passenger's death which the motorcycle driver witnessed. He filed a suit claiming that the defendant's negligent operation of his automobile had caused the crash, including a claim for negligent infliction of emotional distress for the driver's emotional harm at having observed his passenger's death. The trial court had ruled that there was not a sufficient relationship between the girlfriend and the motorcycle driver as set out in the landmark Corso case(fn4) to allow damages for emotional distress. Under the Corso doctrine, as later interpreted by the Court, the test whether a sufficient relationship exists required the trial court to determine "[w]hether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship." The Court framed the question as follows: "whether the undisputed facts demonstrate, as a matter of law, a relationship sufficient to meet the requirements" as set forth in Graves v. Estabrook,(fn5) which set forth a four-part test to determine whether the plaintiff had a relationship with the victim "that is of significant duration and which is deep, lasting and genuinely intimate, i.e., a relationship that is stable, enduring, substantial, and mutually supportive, cemented by strong emotional bonds and providing a deep and pervasive emotional security." The Court affirmed the trial court's ruling that such a close relationship did not exist here, pointing out that the plaintiff and the victim were involved in a relationship for only five or six months, did not live together, had not been married or become engaged, and there was no prospect of them becoming so for sometime. Both the plaintiff and the victim were unemployed and lived with their respective parents and the Court found that to include a relationship such as this one between the plaintiff (and the injured passenger) "would invite a significant expansion of bystander liability in New Hampshire, a result we have consistently refused to...