2011 Spring, Pg. 72. Lex loci.

AuthorBy David w. Ruoff

New Hampshire Bar Journal


2011 Spring, Pg. 72.

Lex loci

New Hampshire Bar JournalVolume 52, No. 1Spring 2011lex lociBy David w. RuoffPriscilla Tyler v. Hannaford Brothers, 2009-455, decided November 30,2010 is a collateral estoppel case. Well, actually, the problem was that it shouldn't have been a collateral estoppel case. Tyler slipped and fell on a wet foor at the defendant Hannaford supermarket in 2003, aggravating a prior injury. At the time she fell she was working as a food demonstrator (giving out samples) for Surey Promotions. Because of her pre-2003 injury, she had a diminished earning capacity. She fled a worker's compensation claim against Surey Promotions for her injuries and she was ultimately awarded a sum of money for her temporary total disability. In 2007 Surey Promotions fled a motion to terminate or reduce payment of benefts. During the course of that litigation, the Appeals Board found that in 2007, Tyler's temporary total disability had abated and that she had returned to an earning capacity at a diminished rate.

As her worker's compensation case was pending, she fled a negligence claim against Hannaford Brothers because of the slippery condition of the foor During the course of the negligence case, obviously having read the Appeals Board's order, Hannaford Brothers fled a motion in limine to preclude the admission of any evidence of the plaintiff's diminished earning capacity after 2007. I guess the logic, though not stated in the opinion, was that since the Appeals Board found that she had returned to her pre-2003 medical status Hannaford could not held be liable for any remaining diminished earning capacity because it pre-existed her 2003 injury. Judge McHugh agreed. He found that the Appeals Board's fnding concerning the plaintiff's return to her per-2003 medical status had preclusive effect in the negligence case. He ordered that she was precluded from offering any evidence of post-2007 diminished earning capacity.

The Court disagreed. Harken back to the bar exam: there are fve prerequisites for collateral estoppel: (1) the issue has to be identical in both actions; (2) the frst action resolved the issue fnally on the merits; (3) the party to be estopped had privity to the frst action; (4) the party had a full and fair opportunity to litigate the issue; and (5) the fnding at issue was essential for the frst judgment. It was #5 that was the undoing of Judge McHugh's order in this case.

The Court concluded that the Appeals Board's fnding that the plaintiff had returned to her pre-2003 medical status was not essential to its fnding on the issue before it: whether she remained totally disabled or could work at a diminished earning capacity. The Court held that the reference to her pre-2003 condition was "akin to dicta" and remanded the case.

In Re Alex C, 2009-399, decided November 30,2010, is a juvenile juvenile (not a typo) case about harassment in the age where every child over the age of 11 has an instant message account or a Facebook page. In this case, a mother was trying to locate her runaway daughter She thought it would be a good idea to log in to her daughter's instant messaging account on AOL and send a message out to her daughter's friends. Young Alex was out there waiting in cyberspace.

As soon as he fgured out that it was not the daughter, but the mom, that he was "IMing," he proceeded to send a series of messages that contained vulgar and profane language. The interesting item in the case was that Alex C. argued that all the instant messages were, in effect, a single conversation: 20 "IMs" sent in a 56-minute timeframe. He likened the IM exchange to that of a single phone conversation. Under the criminal harassment statute, the state had to prove that the juvenile made "repeated communications" in "offensively coarse language with the purpose to annoy or alarm another" RSA 644:4, I(b). It is easy to see how tempting this argument could be: many IM conversations can be composed of prolonged back-and-forth exchanges or quips but seem like a single "conversation" (my blackberry labels them as a single conversation).

However, the Court was not so tempted and pointed out that the statute criminalizes repeated "communications." After a three-page explanation of "IMing" that would amuse my young daughter, the Court concluded that each message sent in an instant message is a separate "communication" under the statute. The Court analogized an IM to calling on a phone and leaving a message on an answering machine - multiple times, because, unlike an oral conversation, there is not necessarily an immediate and continuous exchange of information. So, warn your teenagers... .and pre-teens.

State of New Hampshire v. Ricardo Prudent, 2009-831, decided December 22,2010, is a case in which the defendant was convicted of throwing an iron through his (presumably ex-) girlfriend's 52-inch fat screen television. The defendant confessed to the police that he had committed the act, so, the unique aspect of this case is what...

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