Brown v. Bonnin

566 A.2d 1149, 132 N.H. 488, 1989 N.H. LEXIS 127
CourtSupreme Court of New Hampshire
DecidedDecember 13, 1989
DocketNo. 88-405
StatusPublished
Cited by9 cases

This text of 566 A.2d 1149 (Brown v. Bonnin) 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
Brown v. Bonnin, 566 A.2d 1149, 132 N.H. 488, 1989 N.H. LEXIS 127 (N.H. 1989).

Opinion

Johnson, J.

This is an action to recover for injuries sustained by plaintiff when she fell while descending defendant’s stairs. The case was tried before a jury in Superior Court (Pappagianis, J.) for three days in September, 1988. The jury returned a verdict for [489]*489defendant, and the plaintiff appeals. She objects to the following two evidentiary rulings made by the trial court. First, the jury was instructed not to consider evidence regarding the dimensions or measurements of the risers, treads, nosings, and handrail of defendant’s stairs in reaching a verdict. Second, plaintiff’s expert witness was not allowed to testify concerning the application of the Manchester Building Code’s current handrail requirement to defendant’s stairs, which were constructed prior to adoption of the current code. We affirm.

Plaintiff, a fifty-four-year-old woman, lives on the third floor of defendant’s apartment building in Manchester. She normally uses the front exterior stairs, where she fell, only to collect her mail, whereas she enters and leaves her apartment through the back door. At the time of her fall, she had lived in the building for twenty years, and the portion of the stairs from which she fell was ten to thirteen years old. Until her fall, she had never complained to defendant about the front stairs or the fact that it had only a single handrail.

Plaintiff fell on a clear August day as she was descending the left side of the stairs where no handrail existed. She testified that she slipped on the second step down: “There was something on it. I slipped and fell.” She described that “something” in her writ as a “gluey substance.” Her neighbor, Richard Mann, came to her aid immediately after the fall and testified, “[W]hen I first approached her, she was commenting on the shoes .... She complained to me about her shoe. She said, my shoe, my shoe, these darn shoes.” Plaintiff was wearing relatively new patent-leather shoes. When defendant’s counsel showed her pictures of a pair of shoes and asked if those were the ones she wore when she fell, she replied, “Yes, unfortunately.”

In descending order, defendant’s front stairs consist of four wooden steps, one concrete step, and one granite step. While the wooden steps differ from the other two in measurement, they are themselves alike. Plaintiff’s expert witness, Gary Meehan, a Manchester architect, testified that defendant’s stairs were unsafe and did not conform to the current Manchester Building Code with respect to the stairs’ risers, nosings, and handrails. A summary of his testimony follows:

1. The vertical portions of the steps, or the “risers,” measure eight inches each, where the current building code recommended a height of seven and three-quarters inches. Meehan testified that his office normally recommended a [490]*490height of only six inches in order to avoid the hazards of rain, ice, and snow.
2. The portion of the stair that overhangs the riser is called the “nosing.” While the current building code called for one inch nosings, defendant’s four wooden steps have three-quarter inch nosings and his concrete and cement steps have none. When asked to explain the importance of a nosing, Meehan testified: “the nosing is what allows a person to get their foot out away from the riser so that they hit the stair below cleanly rather than scraping the back of the[ir] foot on the riser.”
3. The “treads” of a staircase are the actual steps. There was no testimony regarding the building code requirements concerning tread width, but Meehan pointed out that defendant’s bottom step is four inches wider than the other steps.
4. Meehan testified that the existing handrail did not conform to the current building code in that it did not extend to the bottom, granite step and that it was not of a uniform height from the steps.
5. Defendant’s stairs have only one handrail, located on the right-hand side as one descends the stairs. Meehan testified that the current building code required two handrails and that the stairs were unsafe with only one. He further testified that a left-hand handrail “may have been able to break [plaintiff’s] fall.”

The trial judge instructed the jury to disregard all testimony and evidence concerning the measurements of the risers, nosings, treads, and existing handrail on the right side of the steps. Plaintiff objected to the instruction, but was overruled.

Plaintiff also sought to have her expert testify concerning the application of the building code to defendant’s stairs. The trial court sustained defendant’s objection to the testimony on the ground of hearsay. In an offer of proof, plaintiff’s counsel stated that Meehan would have testified that the current building code required two handrails on an exterior staircase the size of defendant’s, regardless of the date of the building’s construction. Defendant’s counsel argued that Meehan’s testimony would be based solely on a conversation with a Manchester building official. The trial judge agreed that Meehan’s testimony would be simply a recital of the official’s opinion and that therefore the testimony would be inadmissible hearsay.

[491]*491Plaintiff argues in her appeal that: (1) Meehan’s testimony concerning the risers, nosings, treads, and existing handrail relates to the cause of plaintiff’s fall and injuries and therefore should have been admissible; and (2) Meehan’s proposed testimony concerning the application of the building code handrail requirements to defendant’s stairs should have been admitted as proper expert opinion testimony. Plaintiff raised a third issue in her notice of appeal, but did not argue it in her brief. We will not discuss this issue here, since “issues raised in the notice of appeal but not briefed are deemed waived.” Daboul v. Town of Hampton, 124 N.H. 307, 309, 471 A.2d 1148, 1149 (1983) (citing Fleming v. Martin, 122 N.H. 128, 130, 442 A.2d 584, 585 (1982)).

The review standard in this case is the abuse of discretion standard. “The admissibility of evidence is generally within the discretion of the trial court,” State v. Thresher, 122 N.H. 63, 71, 442 A.2d 578, 582 (1982), and we will uphold its rulings “unless there is a clear abuse of discretion,” Peters v. McNally, 123 N.H. 438, 440, 462 A.2d 119, 121 (1983) (citations omitted). We find no abuse of discretion as to either issue and therefore affirm.

I. Relevancy

The trial judge did not abuse his discretion in instructing the jury to disregard evidence concerning the measurements of the risers, nosings, treads, and existing handrail of defendant’s stairs. It was within his discretion to determine that the evidence was inadmissible because it was either irrelevant, under New Hampshire Rule of Evidence 401, or likely to mislead and confuse the jury, under Rule 403.

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Bluebook (online)
566 A.2d 1149, 132 N.H. 488, 1989 N.H. LEXIS 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-bonnin-nh-1989.