NEW HAMPSHIRE HOUSE OF REPRESENTATIVES AND COURTS BATTLE OVER NEW CENTRALIZED COURT SYSTEM

            As reported in the Concord Monitor on May 13th, the New Hampshire Legislature has proposed new legislation that will undue the centralized management that has been put in place in the New Hampshire Court systems over the past year. The proposal will not undue the newly implemented circuit court system, but it will eliminate the centralized management that is running the administrative side of New Hampshire’s courts presently.

House Speaker O’Brien has indicated that they have received complaints from Judge’s about their inability manage courthouse staff under the new system. He has also indicated that police prosecutors have complained about the Judge’s in place are no longer familiar with their communities. These concerns resulted in the proposal being submitted on Friday to undue the centralized management system.

            Judge Edwin Kelly fired back on Monday, stating that the new system has saved approximately $2.3 million dollars in the last ten months. Judge Kelly wrote, “We know change is not easy and that some people will be unhappy, but that is certainly no reason to suddenly abandon innovation, ignore the demonstrated success of the new system and turn back the clock, which is what this legislation would do.” Judge Kelly referenced how, “In 2010 the New Hampshire Supreme Court formed an Innovation Commission consisting of business leaders, legislators, members of the public, court staff and others. The charge was challenging, but clear: re-create the administrative model of the judicial branch using 21st-century business practices and take advantage of technology where possible to dramatically cut costs while also assuring full access to justice for all citizens.” Judge Kelly believes that the newly formed system meets those goals, but the battle still rages.

            How do you feel about the proposal to change our Court system again? Let your legislatures know whether you support or oppose the legislation, as the best laws are the ones with all of the public’s input. 

Product Liability: Understanding the Three General Types of Defects

            Generally, product liability has three main causes of action. They are a design defect, a manufacturing defect, and a failure to warn (or marketing defect). Each of these defects provide a cause of action to a consumer who is injured by a company’s product. Understanding each of them is important in order to assess whether you or a friend has a claim.

            A design defect is something that is inherently dangerous about the design of the product that is causing injuries. Thus, no matter what is being manufactured, if the product has a design defect, then the product will be dangerous regardless of how it is used. A good example is lead paint. No matter how it is used or manufactured, it will also come with a serious and dangerous risk.

            A manufacturing defect is one that occurs during the manufacturing stage, or, better put, it is a defect that is caused by the manufacturing process. This involves poor materials or shoddy workmanship. Thus, a product may be designed very well, but when manufactured by a particular entity, it is manufactured lazily and it becomes a dangerous risk to others. An example of this could be a phone that is prone to electrocuting its owners due to an issue with the way the battery was manufactured.

            A failure to warn, or marketing defect, is when a product is dangerous no matter how you manufacture or design it, and thus the entity making it is responsible for warning consumers of the hazards using the product could have. The warning here is key. If it properly informs the consumer of the risks associated with a product (ex: don’t drop a hair dryer into water), then the maker of the product is generally protected. However, this brings to mind the old McDonald’s coffee case, where it was a failure to warn that the coffee was scalding hot that allowed the burned woman to recover. This is why the warnings on hot coffee have become so prevalent. While the commoner understands coffee can be hot, the Court in that case found there must be a warning as to how hot, as it is not expected that coffee could cause the damage that it did in that case (which were third degree burns).

            If you find yourself or someone you know injured by a product and you need help navigating the law, please contact the experienced attorneys at Parnell & McKay today. As always in injury cases, our consultation is free. 

Modifying Your Parenting Plan in New Hampshire: Case law v. Statutes

            In 2009, a decision was reached by the New Hampshire Supreme Court In the Matter of Muchmore and Jaycox. The decision was based on the modification of parenting plan statute, titled RSA 461-A:11. At the time Muchmore was decided, the statute provided that only a substantial change in circumstances could justify a change to the parenting plan. In Muchmore, the father petitioned for a change in the parenting plan because it was in the best interests, he posited, of the minor child. The lower Court decided that a modification was appropriate, and granted his request. Our New Hampshire Supreme Court reversed, citing a strict application of the statute. The result was frustration by legal minds around New Hampshire, as the bar to hurdle for a modification was set too high.

            In the decision, the Court insinuates that they have no other choice but to apply the statute as written. Thus, the Court seemed to be saying, that the New Hampshire legislature must reexamine the statute. That is exactly what the legislature did.

            Over the past few months, the new version of RSA 461-A:11 has been in place. The changes made allows for minimal changes now, which was not present before. For instance, if the transportation location isn’t working for one party, the minimal change provision allows for a modification of this provision. This is important, as there are often subtle small changes that need to be made that helps all parties involved. The Court also included some language in the statutes that allows the Court to consider the best interests of the child in the context of the statute. The result has been a much smoother process, and it demonstrates that sometimes our legislature and Court system gets it right.

            If you find yourself in need of a modification, contact the experienced lawyers at Parnell & McKay. 

Walking in the Street: Do I need to be in a crosswalk to be legally protected?

          Over the years, our firm has handled quite a few cases where a pedestrian was struck by a vehicle. Yet, each time, it seems the client is not sure about what the laws are as it relates to pedestrians in the roadway.

            The first thing to examine is New Hampshire’s Pedestrian Right of Way statute, titled RSA 265:35. You can access a copy of the rule here. As paragraph I of the statute states, cars are required to yield to a pedestrian who is properly in the crosswalk. Thus, in a typical situation where a car hits a pedestrian in a crosswalk, liability is generally clear. However, there are a few other factors under the statute that merit consideration. First, the pedestrian must not have suddenly darted in front of the vehicle causing it to hit them. This is a codification of the old adage “look both ways before you cross the street”. As long as you follow your parents’ old advice, you should be protected under the statute.

            What is not clear to most clients is that a pedestrian, under the statute, must yield to cars in the road in the absence of a crosswalk. A lot of folks believe the reverse is true, in that a pedestrian always has the right of way. This is simply not true. The rule governing crossing the road without the use of a cross walk is RSA 265:36, and you can access it here. As you can see, the pedestrian is required to yield to cars already in the roadway. The justification is easy to see. It’s a substantial risk to put the onus on drivers of cars to yield to all pedestrians anywhere, while in the same breath it’s easier for a pedestrian to see a car and yield to it.

            As always, if you are approaching a busy intersection as a pedestrian, please use caution. No one wants to be hit by a car in what can amount to a life threatening experience. Further, if you are operating a car around a heavily populated area, you must be aware of any and all crosswalks around you, and caution in approaching them must be exercised.

            If you have been injured, our attorneys have handled personal injury cases for over thirty years. We are one of the most trusted firms around, and will help you get back what you deserve. Contact us today. 

What is Negligence and who is a Reasonable Person?

            A large number of personal injury claims are based, at least in part, on a theory of negligence. Negligent conduct is conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.

            To use an old logical saw, that ultimately begs the question of who a reasonably prudent person is. To some, the definition of that person comes as a surprise. The reasonably prudent person can sometimes be generalized as “Debbie Do-Gooder”. The reasonably prudent person stops completely at lights and stop signs. They signal a full 100 feet before making a turn. They always look both ways before turning, and never speed. This can be an intimidating prospect for some, as most people don’t operate that conservatively in their every day lives.

            This definition doesn’t stop with people driving cars either. A reasonable business owner salts the entrance to his business after every freeze. They shovel all snow from their pathways, and warn patrons of any dangers that could potentially affect them. They post warning signs, double and triple check food they make, and make sure they don’t hire anyone that could harm another.

            It’s a difficult idea to envision, and one our clients are always concerned with. If you have questions about liability at your business, feel free to contact our office today. If you’ve been injured, and need help, we provide free consultations in all injury cases. Contact us today. 

Divorce in New Hampshire: Part 1 - Important Documents

            As a local Judge likes to say during First Appearances in a divorce matter, “You are all likely going through the worst time period of your lives. We’re here to try to figure out how you move on, and what you need to do to make that process easier.” It’s true, divorce means a marriage is ending, and that is a difficult process to be involved in. Yet, as statistics show, Divorce has become much more commonplace, and living in a divorced home has seemingly become more of the norm.

            However, the process is still draining, and most people don’t know what to expect from the divorce process. In a divorce, one of the married persons files a Petition for Divorce, and in a typical case, the other party files a Cross-Petition and Answer. The parties seek decisions on parenting, division of assets, division of debts, child support, alimony, and other issues. Yet, when you first become involved it can be a very intimidating prospect.

            Thus, it is a good idea to identify a few important documents that you will need to understand in order to maintain sanity through the divorce process. The first, and most important, is the parenting plan. When it becomes final, this document will govern the parenting schedule for each parent, including holiday and vacation plans. This document also talks about the importance of co-parenting, which is something a lot of Courts focus on. In fact, in New Hampshire, all parties to a parenting petition or divorce with children are required to attend a child impact seminar. This seminar discusses the perils to your children if co-parenting fails, and provides parties with the understanding to grow as co-parents.

            The second document that is most well known is the Decree, or Stipulation, or Agreement, and it is this document that governs the division of the “stuff” as we like to say. This document will dictate who gets what, and who pays what debts. This document generally covers all property division, in addition to other tangential issues.

            The third document that is most well known is the Uniform Support Order, or USO for short. The USO uses State mandated calculations (a/k/a – “Child Support Guidelines”) to determine the child support awarded in each case. It also dictates insurance coverage issues for the children, as well as the frequency of payment of support.

            At Parnell & McKay we put our extensive experience to finding a palatable solution for you and your family as you are going through a divorce. We offer the collaborative process, along with a lot of experience litigating a multitude of different divorce cases. If you find yourself overwhelmed by the divorce process, contact us today. 

Navigating the NH Circuit Courts: Things to Know

            A few years ago, our Court systems faced a significant problem. The model they had structured themselves with was not working, cases were being delayed, and litigants were being frustrated. The New Hampshire legal community, Administrative Office of the Courts, and the legislature got together and completely reformed our court system. Out went the old, and in came the new Circuit Courts.

           

            While many people have not had issues with the new Circuit Courts, it is important to understand a few of the more important changes as part of this reconstruction project. First, the Courts are generally all located in the same physical place, but they now bear new names, like the 10^th Circuit Court – Family Division at Derry, which used to be the Derry Family Court. A call center has also been initiated, which has freed up the clerks to process Court orders and do other paperwork that was being delayed by their interactions on the phone. While the transition has been slow and methodical, many callers find themselves having their questions answered by the call center now and not the specific Courts.

            However, not all changes have been met with positive results. For instance, many people are not aware that the Court will unilaterally close a court file if the last order was issued over thirty days in the past, and no pending motions or hearings are scheduled. This can come as quite the surprise, as it now costs about $150.00 to reopen those files and have new or old issues addressed.

            It is also important to make sure you know the docket number to your case. If you do not know it, the Courts can require you to file a request for information that costs $20.00 to file. The docket number is the number assigned to your specific case. It includes the Court code, the year the action was first initiated, letters symbolizing the type of case it is, and finally a number that specifically identifies your case. It is very important number to remember, and you should always make note of your docket number if you are involved in the New Hampshire Court system.

            At Parnell & McKay, we have a tremendous amount of experience navigating the New Hampshire Court system, both old and new. If you find yourself in need of legal help, contact us today.