LeFavor v. Ford

604 A.2d 570, 135 N.H. 311, 1992 N.H. LEXIS 20
CourtSupreme Court of New Hampshire
DecidedMarch 9, 1992
DocketNo. 90-585
StatusPublished
Cited by16 cases

This text of 604 A.2d 570 (LeFavor v. Ford) 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
LeFavor v. Ford, 604 A.2d 570, 135 N.H. 311, 1992 N.H. LEXIS 20 (N.H. 1992).

Opinion

Thayer, J.

The defendant, Fred H. Ford, Jr., appeals from a judgment in Superior Court (Nadeau, J.) finding him negligent and awarding the plaintiff, Walley F. LeFavor, $155,000. For the reasons that follow, we affirm.

The plaintiff was a tenant on the second floor of a residential building in Londonderry. There is a two-story deck attached to the rear of the building. The plaintiff gained access from his apartment to the deck through a sliding glass door. On September 2, 1986, when the plaintiff went out on the deck to empty a bucket of fish tank water, the railing around the deck gave way and he fell to the ground. As a result of the fall, the plaintiff suffered two herniated discs in his lumbar spine, a concussion and a cervical spine injury. The plaintiff sued the defendant alleging negligence and violation of RSA 48-A:14, VII, a statute which requires landlords to maintain porches, stairs [313]*313and railings in a structurally sound condition. The jury found for the plaintiff and awarded damages in the amount of $155,000. The defendant’s motions to set aside the verdict and for judgment notwithstanding the verdict were denied.

On appeal, the defendant raises four issues: (1) did the court err in its instruction to the jury regarding RSA 48-A:14, VII; (2) did the court err in excluding certain evidence supporting the defendant’s theory of comparative negligence; (3) did the court err in denying the defendant’s request for a special verdict form; and (4) did the court apply the wrong standard of review when it considered the defendant’s motion to reduce damages and for remittitur.

The defendant’s first contention is that the court erred when it “in essence imposed strict liability on the defendant and failed to include proximate cause in its instruction” regarding the RSA 48-A:14, VII, violation. The defendant argues that the judge’s instruction “could have mislead [sic] the jury into believing that if the defendant merely violated the statute that he was automatically liable, without considering whether the violation was also the proximate cause of the plaintiff’s injuries.” At trial, the judge instructed the jury that the parties reached an agreement on the cause of the plaintiff’s injuries and therefore the jury did not need to consider causation in their determination of negligence. The defendant overlooks the fact that he did not object to this particular instruction, nor did he object to the characterization that an agreement on causation existed between the parties. Because the defendant failed to object to this instruction at trial, he cannot now complain of error. State v. Brown, 132 N.H. 520, 527, 567 A.2d 544, 548 (1989). Moreover, the defendant failed to raise the issue of causation in his notice of appeal, which precludes him from arguing the issue in his brief to this court. Sup. Ct. R. 16(3)(b); see Dombrowski v. Dombrowski, 131 N.H. 654, 662, 559 A.2d 828, 833 (1989).

Secondly, failure to instruct the jury on proximate cause in an action for negligence does not transform that action into one of strict liability. Causation is a necessary element of strict liability. Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 809, 395 A.2d 843, 847 (1978). Likewise, proximate cause is a necessary element of negligence. W. Keeton et al., Prosser and Keeton on the Law of Torts § 79, at 560 (5th ed. 1984). Thus, it cannot follow that absence of an instruction regarding proximate cause in an action for negligence results in the imposition of strict liability, because causation is a necessary element in both negligence and strict liability actions.

[314]*314The defendant did, however, object at trial to the judge’s instruction regarding RSA 48-A:14, VII. The judge instructed the jury that the statute “requires a landlord to maintain porches, stairs and railings in a structurally sound condition [and that] if you find it’s more probable than not that the defendant failed to comply with this statute, then that would amount to negligence and you should find against the defendant in that respect.” The defendant contends that this instruction amounted to strict liability.

It is well established law in this State that a causal violation of a statutory standard of conduct constitutes legal fault in the same manner as does the causal violation of a common-law standard of due care____” Moulton v. Groveton Papers Co., 112 N.H. 50, 52, 289 A.2d 68, 71 (1972). Legal fault is found in the departure from the required standard of conduct. Id. This is not, however, strict liability, “which imposes liability even though the defendant has not departed in any way from a statutory or common-law standard of care, that is, without being guilty of legal fault.” Id.

The relevant statute, RSA 48-A:14, VII, states in pertinent part that “[n]o landlord ... renting or leasing a residential dwelling . . . shall maintain those rented premises in a condition in which .. . [t]he porches, stairs or railings are not structurally sound____” This statute provides a standard of conduct for landlords, which is maintenance of the porches, stairs and railings in a structurally sound condition. If the porches, stairs or railings are not structurally sound, regardless of whether the landlord acted reasonably in the maintenance of the building, the statute is violated and the landlord is guilty of legal fault. RSA 48-A:14, VII, does not establish strict liability for damages. The landlord would be strictly liable only if he were held liable for all injuries occurring on the premises, proximately caused by any defect in the porches, stairs or railings, without regard to whether the porches, stairs or railings were maintained in a structurally sound condition. The judge instructed the jury that failure to maintain the porches, stairs or railings in a structurally sound condition as required by RSA 48-A:14, VII, amounts to negligence with respect to maintenance of the building. The judge’s instruction did not permit the jury to find the defendant liable for the plaintiff’s injuries without regard to whether the defendant complied with the statutory standard of structural soundness; thus it did not amount to a strict liability instruction.

Next, the defendant contends that he was denied the opportunity to present his theory of comparative fault to the jury because the [315]*315judge refused to allow testimony concerning the plaintiff’s decision to empty the bucket of water over the porch railing rather than in the sink, toilet or bathtub. The defendant argues that this evidence is relevant to support his claim of comparative negligence, citing Bellacome v. Bailey, 121 N.H. 23, 27, 426 A.2d 451, 453 (1981). In Bellacome, this court upheld the trial court’s submission to the jury of the issue of whether a reasonable person would have chosen the plaintiff’s course of action, where the evidence showed that the plaintiff “voluntarily chose not to cross the street at the available crosswalk . . . .” Id. at 26, 426 A.2d at 453.

The present case may, however, be distinguished from Bellacome. In Bellacome,

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Bluebook (online)
604 A.2d 570, 135 N.H. 311, 1992 N.H. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lefavor-v-ford-nh-1992.