STATE OF NEW HAMPSHIRE TRANSPORTATION COMPENDIUM OF LAW

Transcription

1 STATE OF NEW HAMPSHIRE TRANSPORTATION COMPENDIUM OF LAW R. Matthew Cairns Samantha D. Elliott Gallagher, Callahan & Gartrell 214 North Main Street P.O. Box 1415 Concord, NH Tel: (603)

2 A. Negligent Entrustment, Hiring, Retention and Supervision in Trucking Cases: New Hampshire 1. Respondeat Superior /Vicarious Liability a. What are the elements necessary to establish liability under a theory of Respondeat Superior? An employer may be held vicariously responsible for the tortious acts of an employee committed incidental to or within the scope of employment. Trahan-Laroche v. Lockheed Sanders, 139 N.H. 483, 657 A.2d 417 (1995). Therefore, the necessary elements are (1) an employee/employer relationship and (2) that the tort occurred within the scope of the employees job duties. An employee s conduct falls within the scope of her employment if: (1) it is of the kind she is employed to perform; (2) it occurs substantially within the authorized time and space limits; and (3) it is actuated, at least in part, by a purpose to serve the employer." Porter v. City of Manchester, 155 N.H. 149, 152, 921 A.2d 393, (2007). b. Examples and other Issues In Trahan-Laroche, a plaintiff was injured when a hay trailer separated from an employee s truck striking her vehicle. Employee was charged with, among other things, haying the employer s fields using his own equipment. The employer argued that the employee was acting outside the scope of his employment at the time of the accident because he was using the trailer for personal use. The trial court agreed, but the Supreme Court reversed. The Supreme Court found that the employee s temporary personal use of the trailer was understood to be part of the employee s employment to use, inter alia, his own equipment for haying the employer s fields. The Court looked at the totality of the circumstances of the employer-employee relationship and pattern of conduct. 2. Negligent Entrustment In order to recover on a negligent entrustment claim in a trucking or transportation case, a plaintiff must prove by a preponderance of the evidence that: a. The defendant expressly or impliedly permitted the person to use a dangerous item, i.e. the vehicle; b. The defendant knew or should have known that the person was unfit to use the vehicle (i.e. that due to age, inexperience, physical or mental conditions was likely to use the vehicle in a manner involving unreasonable risk of harm to other persons); and c. Such person s fault was a proximate cause of the plaintiff s injuries See Murphy & Pope, New Hampshire Civil Jury Instructions (Revised Edition)

3 3. Negligent Retention/Hiring Employer has a duty to use reasonable care to choose a contractor or employee who is properly qualified to perform the work. [A]n employer of an independent contractor may be liable to one injured as a result of the contractor's fault where it is shown that the employer was negligent in selecting or retaining a careless or incompetent person with whom to contract. Arthur v. Holy Rosary Credit Union, 139 N.H. 463, 656 A.2d 830 (1995). Plaintiff must establish some causal connection between the plaintiff's injury and the fact of employment; employee/contractor s conduct was consistent with a propensity of which the employer knew or should have known, and the association between the plaintiff and the employee/contractor was occasioned by the employee's job. Marquay v. Eno, 139 N.H. 708, 662 A.2d 272 (1995). 4. Negligent Supervision a. What are the elements necessary to establish liability under a theory of negligent supervision? An employer may be held legally at fault for the actions of his employees, even when that employee is not acting within the scope of his employment, if the employer is found to have failed to exercise due care in the supervision of the employee. Murphy & Pope, New Hampshire Civil Jury Instructions (Revised Edition) 14.17; Trahan-Laroche v. Lockheed Sanders, 139 N.H. 483, 657 A.2d 417 (1995); Cutter v. Town of Farmington, 126 N.H. 836, 498 A.2d 316 (1985). b. Examples and other Issues B. Defenses In Trahan-Laroche, the Supreme Court noted that employer s duty to exercise reasonable care to control its employees may extend to activities outside the scope of employment. It went on to say that plaintiff s allegations that the employer, despite being aware of other accidents involving the employee did not supervise the employee or regularly inspect his vehicle and equipment. Thus, the Court overturned dismissal of the negligent supervision claim. 1. Admission of Agency/Admitting Liability Under Respondeat Superior An employer's liability under a respondeat superior theory for the acts of its employees is distinct from its liability for negligent hiring, retention or entrustment. Cutter v. Town of Farmington, 126 N.H. 836, 498 A.2d 316 (1985). A negligence claim brought under respondeat superior is based upon an employer's imputed liability for the wrongful acts of 3

4 its employees. A negligence claim brought under a theory of negligent entrustment, supervision hiring or retention, however, is based upon the employer's direct negligence, rather than the employee's wrongful act. Id. While other jurisdictions have addressed whether or not admitting agency bars claims for direct negligence against the employer, such as negligent hiring or supervision, New Hampshire has not directly addressed that issue. Cf. id. (claims of respondeat superior against town for acts of police officers AND negligent hiring/training claims against town both allowed to go to jury); Burley v. Hudson, 122 N.H. 560, 448 A.2d 375 (1982)(negligent entrustment and respondeat superior allowed as alternate theories; negligent entrustment and respondeat superior are NOT mutually exclusive theories). 2. The Effect of New Hampshire s Comparative Negligence law Regardless of the tort theory of recovery, an employer will be able to assert comparative fault on the part of the plaintiff. New Hampshire RSA 507:7-d and e do not limit a defendant s right to claim comparative fault or allocation of damages among multiple defendants only to claims of direct, as opposed to imputed, fault. See also DeBenedetto v. CLD Consulting Engineers, Inc., 153 N.H. 793, 809, 903 A.2d 969 (2006)(ability to have potential tortfeasors on verdict form even if not sued or even if immune). However, the Courts seem to disfavor imputation of a third person s fault to a plaintiff to create comparative fault on the plaintiff s part, thus if you are going to use comparative fault on the part of the plaintiff, it should be the plaintiff s own fault. See In re Estate of Fontaine, 128 N.H. 695, 519 A.2d 227 (1986). ) 3. Willful and Wanton Negligence and Respondeat Superior Because the respondeat superior test is determined by the scope of employment, the fact that an employee acted in a willfully or wantonly negligent manner should not matter so long as the action was effectuated, at least in part, by a purpose to serve the employer. In fact, an employee's act may be within the scope of employment even though the act is willful or malicious, forbidden by the employer, or indeed consciously criminal or tortious, if the act is carried out, at least in part, with a purpose, or subjective intent, to serve the employer, and it was so similar or incidental to the conduct authorized as to be within the scope of employment. Porter v. City of Manchester, 155 N.H. 149, 152, 921 A.2d 393, 402 (2007) (quoting lower court s jury instruction). One commentator has suggested that because New Hampshire Courts have been expanding vicarious liability and acknowledging that respondeat superior constitutes a cost of doing business, the defense arguments on scope of employment may get even more narrow in interpretation. See R. McNamara, 8 New Hampshire Practice: Personal Injury

5 C. Punitive Damages There are NO punitive damages in New Hampshire unless provided by statute. New Hampshire RSA 507:16, enacted in 1986, provides: Punitive Damages Outlawed. No punitive damages shall be awarded in any action unless otherwise provided for by statute. See Stewart v. Bader, 154 N.H. 75, 907 A.2d 931 (2006). New Hampshire does, however, allow for enhanced compensatory damages or liberal compensatory damages when the tort is committed wantonly, maliciously, or oppressively so as to reflect the aggravating circumstances. See Id. Enhanced or liberal compensatory damages are available in all tort actions, including transportation and trucking claims. 1. Is Evidence Supporting a Derivative Negligence Claim Permissible to Prove an Assertion of Enhanced Compensatory Damages? This question has not been addressed by the New Hampshire Supreme Court. However, the test will likely be whether the wanton, malicious or oppressive conduct occurred inside or outside the employee s scope of employment. If it was within the scope of employment, then it is likely to be imputed to the employer for enhanced compensatory damages purposes. Cf. Daigle v. Portsmouth, 129 N.H. 561, , 534 A.2d 689, (1987)(alleged intentional assaults by police officer could be imputed to City given broad interpretation of scope of employment). This Compendium outline contains a brief overview of certain laws concerning various litigation and legal topics. The compendium provides a simple synopsis of current law and is not intended to explore lengthy analysis of legal issues. This compendium is provided for general information and educational purposes only. It does not solicit, establish, or continue an attorney-client relationship with any attorney or law firm identified as an author, editor or contributor. The contents should not be construed as legal advice or opinion. While every effort has been made to be accurate, the contents should not be relied upon in any specific factual situation. These materials are not intended to provide legal advice or to cover all laws or regulations that may be applicable to a specific factual situation. If you have matters or questions to be resolved for which legal advice may be indicated, you are encouraged to contact a lawyer authorized to practice law in the state for which you are investigating and/or seeking legal advice. 5