Bennett v. Lembo

761 A.2d 494, 145 N.H. 276, 2000 N.H. LEXIS 58
CourtSupreme Court of New Hampshire
DecidedOctober 5, 2000
DocketNo. 97-087
StatusPublished
Cited by13 cases

This text of 761 A.2d 494 (Bennett v. Lembo) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bennett v. Lembo, 761 A.2d 494, 145 N.H. 276, 2000 N.H. LEXIS 58 (N.H. 2000).

Opinion

NADEAU, j.

The defendant, David Lembo, appeals jury verdicts issued in Superior Court (Sullivan, J.) in favor of the plaintiffs, Edward and Joyce Bennett. He challenges the trial court’s instruction on “loss of enjoyment of life” damages and the court’s denial of his motion to set aside the verdicts or, alternatively, for a remittitur. We affirm.

The following facts were adduced at trial. In July 1994, the defendant rear-ended Mr. Bennett’s car while it was stopped at an intersection. On the following day, Mr. Bennett had a severe headache and neck and shoulder pain. Mr. Bennett’s treating physician diagnosed cervical strain and prescribed physical therapy, which Mr. Bennett attended for approximately two months.

In March 1995, Mr. Bennett returned to his doctor when he experienced pain after shoveling snow. His doctor again diagnosed [278]*278cervical strain and prescribed physical therapy, which Mr. Bennett attended until May 1995. In May 1996, Mr. Bennett saw his doctor, who again prescribed physical therapy, which Mr. Bennett attended until July 1996.

The plaintiffs sued the defendant for negligence and loss of consortium. The defendant conceded legal fault but contested the nature, extent, and cause of the plaintiffs’ damages.

Mr. Bennett’s treating physician testified that the 1994 accident caused Mr. Bennett to suffer a 12% permanent impairment. The defendant’s expert agreed that Mr. Bennett suffered from a permanent impairment, but he assessed it at 9% and believed its cause to be a degenerative disk disease.

The plaintiffs and their children testified that after the accident, Mr. Bennett ceased engaging in many activities, including taking long vacations by car with his wife who does not drive, frequently visiting his daughter and grandchildren on Cape Cod, lifting weights, attending aerobics classes with his wife, wrestling with his grandchildren and coaching them in sports, mowing the lawn, and assisting his children with their home improvement projects.

In charging the jury on damages, the trial court instructed:

In awarding damages, the following may be considered:

One, the reasonable value of medical, hospital, nursing care, services and supplies reasonably required and actually given in the treatment of the plaintiff Edward Bennett' and the reasonable value of similar items that will probably be required and given in the future.
Two, reasonable compensation for any pain, discomfort, fears, anxiety or other mental or emotional distress suffered by the plaintiff Edward Bennett and any similar suffering that would probably be experienced in the future.
Three, a permanent impairment; a sum to fairly and reasonably compensate the plaintiff for the loss of bodily functions and permanent physical disability to his body and to his limbs which he has sustained and is likely to sustain •in the future.
No definite standard or method of mathematical calculation is prescribed by law by which to fix reasonable compensation for pain and suffering, nor is the opinion of any witness required as to the amount of such compensation. In making an award for pain and suffering, you should exercise your reasonable judgment, and the damages you
[279]*279determine have to be fair and reasonable in light of the evidence.
In addition, in a case in which the plaintiff has established permanent injuries, the jury is entitled to award such compensation as it determines would fairly and fully compensate the plaintiff for any loss of enjoyment of life which he has sustained as a result of the defendant’s legal fault. This element is separate and distinct from the claim of economic loss and conscious pain and suffering. . . .
It concerns the inability, if any, you find from the evidence, of the plaintiff to carry on and enjoy a life in a manner had the accident not occurred.

The defendant objected to the instruction regarding loss of enjoyment of life damages on the basis that such damages are unavailable under New Hampshire law, and that the instruction duplicated the other instructions with respect to general damages. The jury returned a $75,000 verdict for Mr. Bennett and a $25,000 verdict for Mrs. Bennett. The trial court denied the defendant’s motion to set aside the verdicts or, alternatively, for a remittitur, and this appeal followed.

I. Loss of Enjoyment of Life Damages

The defendant first argues that loss of enjoyment of life damages are unavailable under New Hampshire law. Second, he argues that the instruction allowed duplicate damages because it addressed loss of enjoyment of life damages as a “separate and distinct” element of damages.

“We review jury instructions in context and will not reverse unless the charge, taken in its entirety, fails to adequately explain the law applicable to the case so that the jury could have been misled.” Simpson v. Wal-Mart Stores, 144 N.H. 571, 574, 744 A.2d 625, 628 (1999) (quotation omitted).

We have recently addressed the compensability of “loss of life” damages in an action brought pursuant to RSA 556:12 (Supp. 1999), New Hampshire’s wrongful death statute. See Marcotte v. Timberlane/Hampstead School Dist., 143 N.H. 331, 336-45, 733 A.2d 394, 399-405 (1999). In Marcotte, we held that the language “probable duration of . . . life but for the injury” in RSA 556:12, I, authorizes recovery for loss of life as a separate element of damages in a wrongful death action. See id. at 345, 733 A.2d at 405. We noted, [280]*280however, that the language in RSA 556:12, I, authorizing recovery for “other elements [of damage] allowed by law,” which “refers to elements of damages recoverable in actions where death is not a factor, . . . may include the hedonic element, which is generally compensable as loss of enjoyment of life in bodily injury cases in many jurisdictions.” Id. at 339, 733 A.2d at 401 (citation omitted). Haying found loss of life damages under the statute, we declined to “determine the nature or scope of the hedonic element, if it exists, encompassed by the phrase,.‘other elements provided by law.’” Id. at 340, 733 A.2d at 401. The case before us squarely raises the existence, nature, and scope of “loss of enjoyment of life” damages under New Hampshire law.

Loss of enjoyment of life damages “connote[] the deprivation of certain pleasurable sensations and enjoyment through impairment or- destruction of the capacity to engage in- activities formerly enjoyed by the injured .plaintiff.” Fantozzi v. Sandusky Cement Products Co., 597 N.E.2d 474, 481 (Ohio 1992). That such losses exist is beyond dispute.

The capacity to enjoy life ... is unquestionably an attribute of an ordinary healthy individual. The loss of that capacity as a result of another’s negligent act is at least as serious an impairment as the permanent destruction of a physical function, which has always been treated as a compensable item under traditional tort principles.

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Bluebook (online)
761 A.2d 494, 145 N.H. 276, 2000 N.H. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-lembo-nh-2000.