Collaborative Law in the Civil Arena: A New Age of Conflict Resolution

                Parnell & McKay has long championed the role of collaborative law in the divorce setting, and we offer one of the best and most experienced collaborative law divorce attorneys in the State of New Hampshire in Catherine McKay. However, the gains made in collaborative law in the family arena are being noticed by other attorneys who practice in the civil areas. Employment disputes, business disputes, probate disputes, and other areas of civil practice seem like potential great areas for collaborative law to continue to develop.

                Parnell & McKay supports the Collaborative Law Alliance of New Hampshire (CLANH), and through that great organization we have been introduced to potential new areas of law where collaborative practice can be utilized. In fact, the New Hampshire Bar Association just did a spotlight article on collaborative law being developed in the civil practice. I encourage anyone that is interested in learning about collaborative law to click here and read about CLANH’s role in bringing the collaborative practice to civil law in New Hampshire.

                At Parnell & McKay we have always focused on cost efficient resolutions for our clients. While not all cases will fit with collaborative law, it is important to understand that many do fit perfectly within its boundaries. Collaborative Law can prevent the angst and stress of litigation, help avoid the costs of litigation, and allows the parties to craft their own settlement agreements based on their individual needs. This takes the decisions out of the Court’s hands, and puts it back in the parties to resolve their own conflicts.

                If you are interested in learning more about collaborative law, please check out the CLANH website here. If you need assistance with a potential collaborative law case, please contact our office and put our resources and experience in collaborative law to use. 

Bode Miller Dispute Raises Serious Questions About Rights of Pregnant Women

            Bode Miller is well known as an Olympic skier, but like any normal person, he sought companionship. He found a woman online in California. Sara McKenna was the woman he met, and they dated for a brief while. During this time period, Sara became pregnant, but unfortunately the relationship with Bode failed. While she was pregnant, Sara, a veteran, was accepted to Columbia University in New York. There was a problem, however, as Bode wanted Sara to stay in California where he lived since she was pregnant. She left for New York anyways, and Bode filed an action in the New York courts alleging that Sara had absconded with the unborn child to seek a sympathetic court.

            The lower New York agreed, which allowed a California court to grant Bode custody over the parties’ unborn child. This allowed a California court to exercise jurisdiction over the case and grant custody to Bode. Sara appealed the order, and a five panel appeals court agreed, finding that the putative father (Bode) cannot restrict the liberty of a pregnant woman in such a manner. The case has been given back to the New York Family Court for further action, but the California Court has yet to cede jurisdiction to New York. While this case will continue to wind their way through both Court systems, the case raises significant questions about women’s liberty rights when they are pregnant.

           

            There are a number of cases that attempt to rule when a fetus becomes “viable” under the law, and such cases are most commonly in the abortion field and we will not go into them in this post. However, the viability of the fetus has taken an unexpected turn as highlighted by the Bode Miller case, in that Mr. Miller was able to get a Court to rule that the mother of his unborn child could not leave California for New York. This type of law can have a chilling effect on the ability of a pregnant woman to pursue her own liberty interests separate from the father’s. The Appeals Court’s decision to reverse the original ruling recognizes this potential effect, and eliminated it before it became law. The concern is that if such a ruling was upheld, it would effectively restrict the mother from leaving the father when she is pregnant. This has upset many women’s rights activists and they have provided assistance to Sara as she fights for her rights in New York. It is our hope that both parties can come to a mutual resolution for the sake of their child, but from a legal perspective this case could have a lot of potential ramifications for pregnant mothers.

            As this case continues to wind its way through both Courts, many family practitioners like Parnell & McKay will be keeping a keen eye on how the Court’s seek to rule on the Miller case. If you need help in the family law field, please contact Parnell & McKay today to put our experience and expertise to use.

            

Non-Traditional Injury Cases: the Non-Auto Accident Personal Injuries

                Most injury cases that are handled by personal injury lawyers are auto accident cases. Auto accidents are by far the most common, as driving a car comes with significant inherent risks. However, there are many other types of cases like slip and falls, trip and falls, dog bites, and other incidents that lead to injuries.

                While we have addressed slip and falls and our strategy in approaching them, the trip and fall case is often confused with a slip and fall. A trip and fall generally comes as a result of some unknown invisible object that causes a person to trip and fall, or dangerously constructed stair way or walkway. In order to property handle such cases, it is very important to first focus on building codes. This involves a very specific way of discovering the date the building where the incident was built, the date any modifications were approved, and the building codes in effect at the time of the fall. Other factors to look at include site views, pictures of the scene of the fall, and checking out whether past injuries have occurred there.

                Another type of premises liability case we handle is mold exposure injuries. It is rare that mold exposure gets so bad as to cause physical injury, but it does happen and the injuries can be severe. The most important things to focus on in mold exposure cases is the source of the exposure, and documenting that any injuries or illness from the mold are accounted for in the victim’s medical records. These are notoriously difficult cases, so professional representation is always recommended.

                At Parnell & McKay, we handle all forms of personal injury cases. Often, we are required to use our extensive combined experience to pursue these claims in an efficient and knowledgeable manner. It is important that if you find yourself experienced counsel to handle your injury cases, so contact us today and put our advanced knowledge to use. 

LANDLORD AND TENANT LAW: THINGS LANDLORDS NEED TO KNOW ABOUT EVICTIONS

            The most common problem we run into for our clients who are landlords is where a landlord is confused, or not aware of, the strict eviction process required in the State of New Hampshire. They end up attempting to evict a tenant in the wrong way, which causes them to open themselves up to liability to the tenant, their own attorney’s fees, the tenant’s attorney’s fees, and costs that they did not anticipate. The question is always asked, in the future, how do I avoid this problem?

            First, it is important to understand the nature of a tenancy. There are three general forms of tenancies that we should start with. The first is when a tenant has a written lease with a landlord for a term of time. Often, this is for a year. The second is a “month to month” tenant who generally does not have a written lease, but pays their rent at the same time each month and contacts the landlord if problems need to be addressed. The third is called a “holdover tenant”. This is the tenant who stays beyond the time agreed to with the landlord, and effectively overstays their welcome. This holdover tenant is often the one that needs to be evicted.

            Second, the most important step is to terminate the tenancy. This is often forgotten by landlords, or confused with evicting tenants. In order to terminate the tenancy, you need to provide written notice that the tenancy has been terminated. This is generally done by email or letter, but either way it is important to keep a dated copy. Termination of a tenancy with a lease must be done thirty (30) days prior to the expiration of a lease. For example, a lease that runs from January 1^st, 2012, through January 1^st, 2013, requires a written notice of the intent to not renew the lease (and thereby terminate the tenancy) no later than November 30^th, 2012. In a month to month arrangement, the termination is fairly similar, but a landlord must know the date rent is received. At least thirty (30) days’ notice is again required. So, for example, a month to month tenant that pays on the 15^th of every month requires written notice of the termination of tenancy no later than the 14^th of the month before the landlord wants the tenant to leave. In this example, if a landlord wants someone out by April 15^th, they need to provide the written notice of termination no later than March 14^th of the month prior. A holdover tenant usually has the tenancy already terminated, so often additional written notice is not required. Make sure to consult with an attorney prior to assuming how much time you have to give to provide proper notice to a tenant to terminate their tenancy.

            Once the tenancy is terminated, it gives the landlord the right to evict the tenant. For a renter, this involves posting an eviction notice on the door of the tenant’s home that provides seven (7) days for the tenant to leave. If the tenant does not leave after the seven days, the landlord then has the right to file a Landlord and Tenant Writ with the Court. The landlord and tenant writ requests an order from the Court granting the landlord physical possession of the property. Once granted, a copy of this is provided to the local sheriff’s office, and then on the first Tuesday of every month they enforce these writs and physically eject the tenant from the premises. Before you post an eviction notice, or file an action in court, it is best to consult with an attorney to assure all necessary steps have been complied with.

            Landlord Tenant law is wrought with minefields that, if a landlord isn’t careful, can create substantial liability to the tenant. It is strongly encouraged that if you need help with an eviction, or even just a better understanding of the process, that you meet with an experienced lawyer at Parnell & McKay that can help guide you through the process. If you find yourself in need of assistance, contact our office and put our experience to use.  

COLLABORATIVE LAW: AVOIDING THE PITFALLS OF LITIGATION

                In family law, litigation can have very negative effects on the familial relationships. In divorce, it causes parties to become entrenched in their positions, and they end up spending thousands upon thousands of dollars fighting in Court. Often, we have family law clients in divorce cases that don’t want to ratchet up the emotions by pursuing litigation, and ask about alternative options that do not involve going to Court.

                The best option available is Collaborative Divorce. It is a process that removes a lot of the stress, time and money spent on litigation. Instead, parties go through a series of meetings until the process is concluded with a final agreement. The first step is agreeing to do collaborative law in the first place. At Parnell & McKay, we often recommend collaborative divorce to clients as a non-litigious option. In order to do a divorce collaboratively, there are specific steps that must be taken.

                First, the parties must agree to a collaborative process. Each party must have a collaborative lawyer to represent them. Once each party has a collaborative lawyer, the parties and their attorney’s meet to go over the collaborative process and sign an agreement. The most important part of this agreement to understand is that if the collaborative process fails, then neither party’s attorney can represent them in any future litigation around that family case. For example, if a person hires Cathy McKay as a collaborative attorney, and then decides they would rather do litigation, Cathy McKay cannot represent that person in the litigation process. The person must get a new lawyer at a different law firm. This helps parties remain invested in the process and coming to an agreement.

                There are also additional benefits to the process besides just avoiding litigation. A mental health professional can be involved to help people through the significant emotional issues a divorce can bring. A financial specialist can also be involved to help parties understand the financial decisions that must be made in a divorce. Both professionals help facilitate the collaborative process by allowing both parties equal access to these individuals to get questions answered, and their needs addressed.

                The parties then hold as many meetings as necessary to come to an agreement. This can sometimes happen quickly, and other times in more complex cases it can take additional meetings. Yet, throughout the process, it is designed to be non-adversarial, and to avoid the stress and emotion involved with litigation.

                Collaborative law is a wonderful development, and Catherine McKay is at the forefront of its establishment and continued popularity in New Hampshire. If you find yourself looking at litigation and would prefer to avoid it by participating in the collaborative process, contact our office today to see how we can help you move forward as amicably as possible.  To read more about collaborative law, click here. 

LANDLORD/TENANT LAW IN NH – THINGS TO KNOW AS A TENANT

            Our firm has taken on a wide variety of various landlord/tenant cases, from statutory violations, to personal injuries from premises liability cases, to preventing a person from unlawfully being ejected from their home, among others. We often find that a lot of tenants are completely unaware of many of the basic rules that apply to them as renters of real estate.

            One of the biggest is the law as it relates to security deposits. Often, a landlord decides to keep a security deposit unjustifiably, fails to follow the statutory procedure, and ends up unlawfully taking the security deposit of a tenant. RSA 540-A:7 governs the return of security deposit to tenants. Generally, the security deposit must be returned within thirty (30) days from the termination of the tenancy. However, some landlords just decide to keep it and “dare” the tenants to do something about it. This is most unfortunate, but as a tenant this creates a very specific cause of action against the landlord.

            First, if the landlord does not return the security deposit, they must comply with RSA 540-A:7. Specifically, they must “provide the tenant with a written, itemized list of any damages for which the landlord claims the tenant is liable, which shall indicate with particularity the nature of any repair necessary to correct any damage and satisfactory evidence that repair necessary to correct these damages has been or will be completed. Satisfactory evidence may include, but not be limited to, receipts for purchased repair materials and labor estimates, bills or invoices indicating the actual or estimated cost thereof.” This essentially boils down to forcing the landlord to prove, specifically, why they are entitled to keep the security deposit. Often times, the landlord fails to do this and it creates a cause of action for the tenant against the landlord.

            This failure to comply with RSA 540-A can entitle the tenant to costs, attorney’s fees, and up to twice the sum of the security deposit in Court. Thus, if your security deposit was $1,000, you would be entitled to obtain $2,000 from the Court for the 540-A violations. It is also likely that a landlord may have violated other provisions of RSA 540-A if he violated the security deposit rules, which may entitle a tenant to additional damages and fees and costs.

            If you find yourself in a situation as a tenant where you are faced with an overreaching landlord, please contact us today. We have handled many cases for both tenants and landlords, and have over 20 years combined experience in landlord tenant law. 

Used Car Sales in New Hampshire: How to Protect Yourself from Getting Ripped Off

                In New Hampshire we do not have specific “lemon laws” that other states have that protect purchasers of used cars. Often, we get cases in our office where a person buys a used car, pays for it, and then after they drive it home they discover all sorts of problems with it. When they contact the seller, they are told all sales are final, and no reimbursement will be given. This can be very frustrating, especially if you are of limited means and cannot afford a car that will need constant servicing.

                In order to prevent these issues, it is important to first remember a few key terms. Almost always a used car dealer will sell a vehicle “as is”. By selling a vehicle “as is”, the seller is stating that the car comes with no warranties. However, one thing many people do not understand is that this waiver of warranties only applies to the implied warranties known as “fitness for a particular purpose” (i.e. the car drives like it should), and “merchantability” (which is something that warranties that the goods are merchantable and of decent quality). By putting the terms “as is” in any contract, this waives those warranties and they no longer apply to the vehicle being bought. However, this does not exclude what are called “express warranties”. Express warranties can be verbal and/or oral. An express warranty is a specific representation of the vehicle’s quality. Examples of an express warranty would be, “this vehicle has 100,000 miles on it”, “this vehicle’s brakes are of good working quality”, “this vehicle’s engine is in pristine condition and needs no work”, and so on. Things that would not be an express warranty are what we call “mere puffery”. Examples of puffery would be “the vehicles rides nicely”, “you’re going to look great in this car”, “you’re going to love this car”, and so on. The thing to remember is that express warranties are specific representations on the vehicle’s quality. Express warranties cannot be waived by selling a car “as is” and without any implied warranties. Knowing the difference is always integral to any used car sale case.

                Another component is New Hampshire’s statutory scheme on inspections. RSA 358-F requires a seller to either certify that the vehicle would/did pass inspection, or the seller must certify that the car would not pass inspection. RSA 358-F also requires that a dealer provide a written statement to any buyer that the vehicle has either not been inspected and the written statement serves to put the buyer on notice that they have a right to an inspection if they so choose. The other option for the seller is to provide written notice that the vehicle would not pass inspection, along with an itemized list of the problems of the car that need fixing in order for it to pass inspection. This is surprisingly commonly violated by dealers. And, if that violation is proven, it is deemed a violation of New Hampshire’s consumer protection statute (RSA 358-A), which entitles the buyer to double and triple damages and recovery of attorney’s fees.

                At Parnell & McKay, we have dealt with many different nefarious used car dealers that have ripped off potential buyers. If you find yourself cheated, please contact us today and put our experience to use on your behalf. 

Personal Injury Series: How does potentially criminal conduct affect my injury case?

            Getting injured is unfortunate enough as it is, but sometimes someone is hit by a drunk driver, or someone speeding, or someone texting and driving and it can compound the injury. People involved in such accidents can suffer from increased anxiety, and become very fearful of driving after the accident. These folks not only suffer from their injuries, but also from the fact that another person was committing a crime when they were hurt. Ultimately, we get asked, how does this affect my case?

            The answer, like most in the legal field, is that it depends. Things like crossing a yellow line, speeding through a stop light or stop sign, or something as simple as failing to yield to oncoming traffic are all violations of the Rules of the Road in New Hampshire. These are ultimately criminal violations, but they are often not charged. Many clients become concerned that the person that hit them was “getting away with something”, and they want to know what can be done.

            If a case goes to trial, we here at Parnell & McKay always explore the rules and regulations in the State where the accident occurred to see if there is a statutory violation. If so, we plead the violation of the statute as a cause of action. If proven this helps establish “negligence per se”, which we have touched on previously in our series. This can make recovery a little easier because the insurer knows that they do not have very good arguments against liability.

            Sometimes, the conduct is more egregious. One such situation is any case involving a drunk driver. If the person pleads guilty to the driving while intoxicated (DWI), then we can use that plea in Court to help prove liability. More importantly though, when a drunk driver causes an accident their victims generally suffer from increased anxiety and fear when driving again. The thought is always in the back of their mind that any person on the road could be drunk. When we proceed forward with litigation on these cases, we always keep it in mind because people obviously do not like drunk drivers. This factors into our analysis on what a potential jury would do. This can increase potential recoveries, because juries can understand the increased anxiety and suffering of being hit by a drunken driver. A similar analysis can be done on driver’s texting while driving, which has become a major news story over the past ten years.

            It is very important to understand these factors as you decide who to best represent your interests. At Parnell & McKay, we have been practicing in injury law for a combined 30+ years between our injury attorneys. If you are hurt in an accident, contact us and put our years of experience and expertise to use. 

Slip and Falls: New Effective Recovery Strategies

            Slip and Falls are known as being one of the most difficult areas of personal injury cases to win for Plaintiffs. When a person slips on a spilled drink in a supermarket, the supermarket often blames the person who slipped as being the responsible party. They argue that the victim should have looked where they were going, and often trot out the ineffectual argument that others in the area didn't fall so it must have been the victim’s fault. These arguments can be tricky to deal with, but often it is easier to overcome these arguments than others.

            The most difficult thing to overcome in slip and fall cases is often proving the Defendant knew or should have known the spills or hazards were present and were a danger. Supermarkets and other major stores often argue that they didn't have notice of the spill and that there was no way they could find out that such a danger existed. As Plaintiff’s attorneys, we always look for the video tape of the area where the fall occurred, but sometimes no video tape exists or no video camera was recording that area. Knowing these issues, we at Parnell & McKay are always looking around the country for cutting edge approaches based on new scientific studies and research. One such study from a firm in California used cutting edge science to test how dangerous a supermarket floor can be even without liquid on it. The study focused on comparisons of slippery objects, and how much more dangerous they get when covered with a  liquid or other slippery item. One such focus was on supermarket floors, which use a bright tile that helps make their products “pop” from the aisles. The study demonstrated that once these floors get wet with water, or any spilled liquid product, they become extremely dangerous for anyone walking over them. The slippery quotient multiplied exponentially, and the studies demonstrated that once a supermarket floor gets wet like this they are effectively ticking time bombs for prospective customers. The study also found that supermarkets often consider buying a more tacky, or rough floor surface that significantly reduces how slippery and dangerous their floors can get. However, these floors are often not reflective of light, are generally darker, and do not look as shiny and bright as the more common tiles preferred by supermarkets.

            These supermarkets, when faced with the option of installing safer floors, decide not to and instead install the more aesthetically pleasing tiles that become extremely dangerous when wet. This helps demonstrate that not only did the supermarket know the floors they installed would be slippery, but that they deliberately decided against purchasing a safer floor because it didn't look as pretty.

            Science is constantly evolving, and staying on top of these various studies is important to maintain the most effective representation we can provide. If you are injured in a slip and fall accident, contact the Law Offices of Parnell & McKay and put our years of experience and diligent research to use. 

Worker’s Compensation: Differences in Lump Sum Settlements in Massachusetts and New Hampshire

            At Parnell & McKay, we handle both New Hampshire and Massachusetts worker’s compensation cases. However, we often are asked about the differences between the two as it relates to settlements. In worker’s compensation cases, these are called “lump sum settlements”. A lump sum settlement generally uses the weekly wage benefit amount as a basis for coming up with a settlement figure. For example, in a situation where an individual is getting $400.00 per week in wage benefits, and is permanently disabled, there are a number of factors that come into play. Generally, it’s the injured worker’s life expectancy, the wage benefit amount, and whether the client prefers settlement to receiving regular weekly benefits. If a person is permanently disabled and cannot work any form of employment, the person is very likely entitled to wage benefits for the rest of their life. However, most people tire quickly of dealing with worker’s compensation insurance and prefer to avoid the continued hassle of denials, delayed benefits checks, and fights with the insurance companies.

            So, what is factored into the settlements beyond the above? In New Hampshire, that answer is permanent loss of use or function of a part of their body, and the wage benefits if a permanent disability exists. If a person loses function, both Massachusetts and New Hampshire recognize that the injured worker should be compensated for this loss. The determination of this amount is very complicated, and I strongly encourage anyone facing a permanent disability to consult with a worker’s compensation attorney prior to agreeing with the insurance company on the permanent impairment. In Massachusetts, however, lump sums can also include scarring and disfigurement, and future medical bills can be lump summed as well. New Hampshire does not allow future medical bills related to the work injury to be lump summed, nor does New Hampshire account specifically for scarring and disfigurement. It is always dangerous to lump sum future medical bills without knowing what you are agreeing to, so it is very important to consult an attorney prior to agreeing to any settlement.

            There are other minor differences in worker’s compensation law between New Hampshire and Massachusetts, but when it comes to lump sum settlements it is important to know what is being resolved. If an injured worker fails to get the proper legal advice, they can put themselves in a dangerous situation where they could resolve their case for too small an amount and not properly include things like permanent injuries in both Massachusetts and NH, and scarring and future medical bills in Massachusetts.

            At Parnell & McKay, we have experienced worker’s compensation attorneys who can give you the advice you need to maximize your case’s settlement and make sure your rights are protected. Please contact us today if you were injured at work and need help navigating the worker’s compensation arena. 

NEW HAMPSHIRE’S NEW CHILD SUPPORT GUIDELINES

            New Hampshire made substantial changes to the way we calculate child support in the Granite State. Generally, the way child support is calculated is to take the person owing child support’s net income and then take a percentage of that net income as child support. Traditionally, this was 25% for one child, 33% for two children, and 40% for 3 or more. With the new changes, these figures can change fairly dramatically.

            Here is the link to the new child support guidelines tables. As you can see, gone are the round numbers we used previously, and instead we have more defined figures based on each parties’ income. The more you make, the less percentage is taken out of your income. The problem that was being generated was high income wage earners were getting stuck with significant child support amounts. For instance, under the new rules a wage earner making $14,000 or more will pay 19% for one child, 26% for two children, 31% for three children, and 33.5% for four or more children. For a person who makes approximately $5,300.00, the figures will be 23% for one child, 31.5% for two children, 38% for three children, and 40.5% for four or more children. This helps better calculate child support amounts that are more commensurate with the wages one earns.

            The new guidelines also call for specific amounts for three children, and now have a four or more children option. Three children are generally much more common than once anticipated, so having a specific calculation for three children will help keep the child support figures more accurate and in line with what each wage earner makes.

            These child support calculation changes went into effect on July 1^st, 2013 and are the law of New Hampshire. If you need assistance with any modification of child support, either based on the three year modification as a matter of right, or a substantial change in circumstances, contact the experienced family attorneys of Parnell & McKay. 

The Supreme Court Strikes Down Portion of Defense of Marriage Act (DOMA)

            In the now famous case, titled United States v. Windsor, the U.S. Supreme Court examined the 1996 Defense of Marriage Act to decide whether a portion of the act was unconstitutional. Specifically, the U.S. Supreme Court was deciding whether Section 3 of the act, which functionally denied federal benefits for same sex couples, was constitutional.  Ms. Windsor was married to her partner, and when her partner died, she was denied the exemption for spouses under federal law for estate inheritance. She was forced to pay over $300,000.00 in taxes to the federal government under DOMA, and she filed a lawsuit to contest this provision. Over the years, the case wound its way through our Appeals circuits and found its way in front of the Supreme Court.

            The Court found that Section 3 of the act, which denied federal benefits to same sex couples, violated the Equal Protection Clause of the constitution. Justice Kennedy wrote the opinion, and he stated, “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.” Under the new ruling, same sex couples can apply for federal spousal benefits, tax exemptions and tax credits as any opposite sex couple would under existing law.  The Court recognized that there was no rational basis for the law under their analysis, and struck Section 3 of DOMA down.

            While the case is a seminal moment for the same sex marriage movement, it also did not strike down DOMA entirely. There are remaining questions about whether a State that does not recognize gay marriage is required to give full faith and credit to a marriage from a state that allows same sex marriage. The Supreme Court did not answer this question, as it was not presented to them in this case. Future cases are bound to find their way to the U.S. Supreme Court that challenges this provision of DOMA, but for now the same sex marriage movement has scored an important victory for their cause.  

            At Parnell & McKay we are happy to take on any family law case for whoever may need it. If you find yourself in need of Family Law assistance, contact the Law Offices of Parnell & McKay to put our over 30 years of experience to use. 

What is Negligence Per Se?

            We previously addressed the term “negligence” and how that term is used in civil law, and, more specifically, in personal injury cases. However, at Parnell & McKay, we often use a theory called “negligence per se” to increase our chances of success in an injury lawsuit. Negligence per se is the legal doctrine where an act is considered automatically negligent because the person violated a statute or regulation.

            Typically, this can be seen in a traditional auto accident case. For example, let’s say Mary is driving her car and came to a four-way intersection with traffic lights on all four sides. Mary’s light is red, so she comes to a complete stop. Mary’s light turns green and she starts to proceed through the intersection. John is coming from the right of Mary, and decides he is going to run the red light because he is late for work. The light turns red, but John doesn't stop and proceeds into the intersection. Unfortunately for Mary, this causes John’s vehicle to strike Mary’s causing an accident and Mary is injured.

            In the first instance, it is clear John is negligent, as we discussed previously in this blog post. However, in order to tip the theory of liability more significantly in favor of Mary, it is important to add a negligence per se count to the lawsuit that demonstrates the violation of the statute John committed. In this instance, John has violated RSA 265:9 and 265:10, which governs obedience to traffic control devices. RSA 269:10 details what a person must do when faced with a steady red light, which is fairly obvious: John must come to a complete stop. Because John did not come to a complete stop, John has violated the statute. Now, sometimes a police officer may not give John a ticket for running the red light. However, that does not impact the ability to raise this theory of liability with the Court.

            In civil cases to establish negligence per se, a person must establish that the Defendant (John in this instance) violated the statute, that the act caused the harm the statute was designed to prevent, and that the Plaintiff (Mary) was in the class of persons designed to protect from that harm. It is clear John ran the red light. It is also clear that the reason the statute exists is to prevent people from running red lights and causing an accident. Finally, it is also clear that the Plaintiff was a member of the protected class in that she was a lawfully licensed driver on the roads who must be protected from other people running red lights. Once those prerequisites are established, the Plaintiff has proved that the Defendant was negligent per se by violating the statute. This has a significant impact on settlement negotiations, and creates significant leverage for a Plaintiff’s case.

            If you were injured in an accident and need assistance, contact the Law Offices of Parnell & McKay to put our over 30 years of experience to use.