THE STATE OF NEW HAMPSHIRE SUPREME COURT JANUARY TERM DANA CHATMAN V. JAMES BRADY AND LEE COUNTRY FAIR 2010-0707 Rule 7 Appeal from the Strafford County Superior Court Decision on the Merits Reply Brief of the Appellant John P. Fagan #6828 Bussiere & Bussiere, P.A. 15 North Street Manchester, NH 03104 www.bussierelaw.com If oral argument is scheduled, John P. Fagan, Esq. will represent Appellant
TABLE OF CONTENTS TABLE OF CASES...ii TABLE OF STATUTES...iii STATEMENT OF THE CASE...1 ARGUMENT...1 I. RSA 651:70 IS NOT SUBSTANTIALLY RELATED TO AN IMPORTANT GOVERNMENT INTEREST...1 II. III. APPELLEES MISAPPLY THE RULE OF STATUTORY CONSTRUCTION THAT STATUTES IN DEROGATION OF THE COMMON LAW ARE TO BE NARROWLY INTERPRETED AND SIMILARLY MISAPPLY THE QUID PRO QUO ANALYSIS...7 THE STEP DOWN CONTRACT IS AN UNENFORCEABLE AND AMBIGUOUS EXCULPATORY CONTRACT...9 CONCLUSION...10 CERTIFICATE OF SERVICE...10
TABLE OF CASES Arthur v. Holy Rosary Credit Union, 139 N.H. 463, 465 (1995)...6 Audley v. Melton, 138 N.H. 416, 419 (1994)...10 Carter v. Berlin Mills, 58 N.H. 52, 53 (1876)...5 City of Dover v. Imperial Casualty & Indemnity Co., 133 N.H. 109, 117 (1990)...4, 6 Cmty. Res. for Justice v. City of Manchester, 154 N.H.748, 762 (2007)...3 Estate of Gordon-Couture v. Brown, 152 N.H. 265 (2005)...9 Estate of Cargill v. City of Rochester, 119 N.H. 661 (1979)...3 Greenhalge v. Town of Dunbarton, 122 N.H. 1038, 1040 (1982)...1 Lorette v. Peter-Sam Inv. Properties, 140 N.H. 208, 212 (1995)...7, 8 Sweeney v. Ragged Mountain Ski Area, Inc., 151 N.H. 239, 242 (2004)...7, 8, 9 Mountain Valley Mall Associates v. Municipality of Conway, 144 N.H. 642, 652 (2000)...1 State v. Flynn, 123 N.H. 457, 462 (1983)...1 State v. Pessetto, 160 N.H. 813, 816 (2010)...1 Wright v. Loon Mountain Recreation Corp., 140 N.H. 166, 169 (1995)...10
TABLE OF STATUTES I. N.H. R.S.A. 651:68 (1994)...8, 9 Title 62. CRIMINAL CODE Chapter 651 SENTENCES 651:68 Uncompensated Public Service The performance of uncompensated public service of a sort that in the opinion of the court, the commissioner of the department of corrections, or the parole board will foster respect for those interests violated by the defendant s conduct may be ordered: I. By the sentencing court as a condition of probation, conditional discharge, release under RSA 651:19, or suspension of sentence; II. By the commissioner of the department of corrections as a condition of release under RSA 651:25; III. By the parole board as a condition of parole. II. N.H. R.S.A. 651:70 (1994)...1, 2, 3, 4, 5, 6, 7, 8, 9, 10 Title 62. CRIMINAL CODE Chapter 651. SENTENCES 651:70. Liability No person or organization who utilizes the services of any person performing uncompensated public service under this subdivision shall be liable for any damages sustained by an individual while performing such services for the benefit of the person or organization or any damages caused by that person unless the person or organization is guilty of gross negligence.
STATEMENT OF THE CASE In their opposing brief Appellees fail to correctly apply law that both parties agree is applicable to this case, and fail to provide other than broad generalizations and post hoc justifications in support of a finding that RSA 651:70 is substantially related to an important government objective. Chatman will address each of these issues, and will also address Appellee s argument that by signing a Step Down contract Chatman agreed to waive any claim against Appellees for their negligence causing him injury. ARGUMENT I. RSA 651:70 IS NOT SUBSTANTIALLY RELATED TO AN IMPORTANT GOVERNMENT INTEREST. It is a settled maxim of statutory construction that a statute is interpreted by the words used by the legislature. State v. Pessetto, 160 N.H. 813, 816 (2010). The court shall not embellish a statute by including words the legislature did not use. Id. It is well established law that the words in the statute itself are the touchstone of the legislature s intention. Greenhalge v. Town of Dunbarton, 122 N.H. 1038, 1040 (1982)(citations omitted). In this context words and grammar have meaning. State v. Flynn, 123 N.H. 457, 462 (1983)(while the legislature is not required to follow rules of grammar and composition... a widely accepted method of statutory construction is to read and examine the text of the statute and draw inferences concerning its meaning from its composition and structure. ). Among the rules of statutory interpretation is the rule of the last antecedent. The rule of the last antecedent is not esoteric [Appellee Brief p. 3]. The last antecedent rule is an established rule of statutory construction. Mountain Valley Mall Associates v. Municipality of Conway, 144 N.H. 642, 652 (2000). In order to interpret RSA 651:70, or decide its constitutionality, this court must first decide what the statute provides in the 1
words and phrases it uses. The rule of the last antecedent requires the court to interpret RSA 651:70 as completely barring Chatman s right of action against Appellees [Appellant s Brief p. 24-26]. This is not because Chatman wishes it so, but because that is what RSA 651:70 states. Appellees have not argued that Chatman has applied the last antecedent rule incorrectly (i.e., if the rule is applied, Appellees presumably agree that Chatman has used the rule correctly) [Appellee s Brief p. 12-13]. Rather, Appellees assert that RSA 651:70 is susceptible of a constitutional construction if the court ignores the rule of the last antecedent [Appellee Brief p. 12-13] and reads RSA 651:70 as permitting a cause of action for gross negligence as this best comports with the purpose of the statutory scheme. There is nothing in the statutory scheme of which RSA 651:70 is part to suggest that the legislature intended to provide uncompensated public servants a cause of action against their employer. In fact, if the purpose of RSA 651:70 is to encourage employers to accept as servants inmates they neither know nor control it makes more sense to completely abrogate a cause of action than to subject the employer to suit, no matter how circumscribed the right may be [Appellee Brief p. 14-15]. If RSA 651:70 does afford an uncompensated public servant a right of action against his employer for the employer s gross negligence, it violates Chatman s rights of equal protection and right to a remedy. Appellees contend RSA 651:70 is constitutional because it permits suit by an uncompensated public servant injured by his employer s gross negligence; just as a third-party injured by the uncompensated public servant may sue if the employer was grossly negligent [Appellee s Brief p. 10]. This argument, accepted by the trial court [Appendix R 46-47], incorrectly identifies the relevant class for equal protection analysis. It is not permissible to 2
simply narrowly define the class so that everyone within it receives equal treatment. Estate of Cargill v. City of Rochester, 119 N.H. 661, 666 (1979). The correct inquiry is: does RSA 651:70 treat uncompensated public servants injured by their employer s negligence differently than others injured by that same employer s negligence? If the employer s negligence, not the uncompensated public servant s action, caused the third-party injury RSA 651:70 does not bar a negligence claim by the third-party. Conversely, the uncompensated public servant injured by his employer s negligence is barred from recovery [Appellant s Brief p. 21-22]. Viewed properly, whether interpreted in accordance with the last antecedent rule or not, RSA 651:70 creates separate classes of claimants having different rights of recovery against a single class of defendant [Appellant s Brief p. 21-22]. Therefore, RSA 651:70 is unconstitutional unless it is substantially related to an important government objective. Cmty. Res. for Justice v. City of Manchester, 154 N.H. 748, 762 (2007). Appellees, as proponents of the legislation, have the burden to demonstrate that RSA 651:70 meets this test. Id. Appellee may not rely upon justifications that are hypothesized or invented post hoc in response to litigation nor upon over broad generalizations. Id. (quotations omitted). 1 Rehabilitation of offenders is an important government interest. Appellees offer four reasons for finding that RSA 651:70 furthers the important government interest of rehabilitating inmates. Fist, RSA 651:70 encourages non-profit organizations to utilize the services of uncompensated public servants so that they can integrate back into society. [Appellee Brief p. 1 Appellees incorrectly assert that Chatman agrees that RSA 651:70 serves this purpose. [Appellee Brief p.14]. Chatman agrees only that the general goal of inmate rehabilitation is an important government interest. Appellant Brief p. 23. Chatman argued in his brief, and again in this reply brief, that RSA 651:70 does not serve this purpose as it was drafted. 3
14]. Second, nonprofit [sic] organizations [are enticed] to use the labor of offenders that they do not know and will not supervise by providing immunity from negligence suits. [Appellee Brief p. 15]. Third, RSA 651:70 encourages non-profits to use uncompensated public servants providing avenues for socialization and rehabilitation which would not otherwise exist. Id. Lastly, RSA 651:70 frees the non-profit organization from the need to pay for labor allowing it to allocate more funds towards charitable or public ends. Id. None of these arguments withstand scrutiny. There is nothing in the language of RSA 651:70, or RSA 651 viewed as a whole, to support any argument that the legislature was motivated in whole, or in part, to reduce the expenses of organizations using an uncompensated public servant. The immunity given by RSA 2 651:70 extends to any person or organization who utilizes... an uncompensated public servant. If a non-profit or charitable organization is entitled to immunity by other statutes (an issue not raised below and not before this court on appeal) that immunity must be addressed under the terms and conditions of those statutes. Whether the employer of an uncompensated public servant saves money is not a valid reason for finding RSA 651:70 constitutional. City of Dover v. Imperial Casualty & Indemnity Co., 133 N.H. 109, 117 (1990)(feared cost of defending suits and paying damages is not a basis on which to eliminate an injured person s right to a remedy). This is exactly the sort of post hoc hypothesized justification not permitted by intermediate tier scrutiny. Thus, the fourth asserted basis for how RSA 651:70 furthers an important government interest is invalid. 2 Of the jobs that Chatman performed during the summer of 2007, all but that at the Lee Country Fair appear to be for municipal employers. There is nothing in the record to suggest that non-profit entities are integral to operation of the uncompensated public servant program. [Appendix R 12]. 4
Appellees also assert that the immunity given employers of uncompensated public servants advances the goal of socialization and rehabilitation of inmates [Appellee Brief p. 14-15]. Nobody disputes that alternatives to incarceration may assist in rehabilitation of offenders. The question presented, however, is whether the broad immunity afforded by RSA 651:70 is substantially related to this interest. There is no plausible argument that barring a negligence action by an uncompensated public servant is for the good of the injured public servant. Rather, if the immunity provided by RSA 651:70 is substantially related to the goal of rehabilitation of inmates the rationale for this must be found in how this immunity benefits employers, and in turn, benefits the alternative sentencing scheme as a whole. The remaining three reasons in support of immunity for employers of uncompensated public servants as offered by Appellees are premised on encouraging employers to participate in the uncompensated servant program. See, reasons one, two and three above. These rationales are certainly plausible with respect to limiting vicarious liability of employers for the actions of their servants. Respondeat superior is premised on presumed control over the servant implied by the relation between the parties. Carter v. Berlin Mills, 58 N.H. 52, 53 (1876). Where the employer of the public servant has no ability to control the identity of his servant, it is not realistic to expect the employer to assume responsibility for the employee s conduct causing 3 harm caused to others. In this respect, the limitation of liability of employers of uncompensated public servants mirrors the common law limitation on actions against employers of independent 3 Appellees argue that they can not be expected to investigate the background of all uncompensated public servants. [Appellee Brief p. 6-7]. This is argument misses the point. If the employer of an uncompensated public servant wishes to avoid liability it either does not accept the free labor at all, or simply acts with reasonable care. To the extent it fears liability, the employer of the uncompensated public service can insure itself, or choose to not participate in the program. 5
contractors. Arthur v. Holy Rosary Credit Union, 139 N.H. 463, 465 (1995). This same concern is not present, however, when considering whether immunity from negligence lawsuits brought by the injured uncompensated servant himself realistically affects the decision of an employer to participate in the uncompensated public servant program. Aside from gross generalization there is no reason to believe that an uncompensated public servant is more likely to sue than any other injured person. There is no reason to believe that an uncompensated public servant is more prone to injury than any other person. Therefore, the employer of an uncompensated public servant is no more likely to be sued or not by an uncompensated public servant than by any other unknown individual with whom he comes in 4 contact. Even if one believes, however, that uncompensated public servants are more likely to sue their employer than are other individuals, RSA 651:70 (as interpreted by Appellees) does not protect the employer from suit; the employer is subject to suit for its acts of gross negligence. If the employer remains subject to suit for its gross negligence, freeing the employer from negligence suits does not logically alter the decision to accept free labor from an uncompensated public servant. Further, any immunity given the employer is outweighed by the significant problems attendant to that immunity. City of Dover v. Imperial Casualty & Indemnity Co., 133 N.H. 109, 116 (1990)(important government interest in protecting municipalities from liability for its transportation infrastructure outweighed by the interest of injured pedestrian). Appellees acknowledge that a statutory scheme which prohibits... all rights of recovery 4 When the Lee Country Fair opened its gates for business it is fair to infer that it accepted all comers, and that each of these unknown and uncontrolled individuals may sue it for ordinary negligence. Lee Country Fair avoided liability by acting reasonably under all the circumstances, and had the opportunity to protect itself from damages by insurance. Similarly, the employer of an uncompensated public servant is not exposed to liability due to the identity of the servant (which it may not control), but by the reasonableness of its actions (which it does control). 6
for uncompensated public servants in the event of injury could impede the rehabilitative efforts served by the program as a whole. [Appellee Brief p. 13]. Yet this is exactly what RSA 651:70 does by either eliminating rights of recovery altogether, or limiting recovery only to cases of gross negligence such that the vast majority of injured servants have no remedy. While Appellees offer no data, legislative history, or other evidence to support their proposition that limiting claims against employers of uncompensated public servants to matters of gross negligence furthers the purpose of rehabilitation, it is fair to assume that the vast majority of injured servants will come to be injured by accident or simple negligence. Therefore, the vast majority of injured uncompensated public servants will not receive workers compensation benefits [Appellant s Brief p. 28] or compensation for their injuries. RSA 651:70, therefore, not only does not further the state s interest in rehabilitation of inmates, but frustrates it by prohibiting the vast majority of injured uncompensated public servants from recovering for potentially devastating injury. RSA 651:70 does not further the important government interest of rehabilitating those convicted of crimes. Appellees fail to sustain their burden of demonstrating otherwise. II. APPELLEES MISAPPLY THE RULE OF STATUTORY CONSTRUCTION THAT STATUTES IN DEROGATION OF THE COMMON LAW ARE TO BE NARROWLY INTERPRETED, AND SIMILARLY MISAPPLY THE QUID PRO QUO STANDARD. Appellees argue that RSA 651:70 provides an adequate quid pro quo for the deprivation of common law rights for which it provides [Appellee Brief p. 16-20]. For the reasons stated by Chatman [Appellant s Brief p. 30-32], there is a significant difference between RSA 651:70 and the quid pro quo found permissible by this Court in other statutes. Considerations which may justify immunity for those engaged in promoting or supervising inherently dangerous activities (skiing - Sweeney, 151 N.H. 239(2004); OHRV operation - Lorette, 140 N.H. 208(1995)); or for 7
those who have no choice but to perform tasks private actors are not suited to perform (municipalities with respect to sidewalks and roads); or for activities which can t be reasonably supervised (OHRV operation on opened private tracts of land or streets and highways of cities and towns), are not present in this case. RSA 651:70 immunizes employers from their own negligence, on their own property, for injury to those performing tasks which are not inherently dangerous, and to which they are set by the employer itself. In exchange, the employee is left utterly exposed to severe injury or death with no right of recourse. 5 Appellees also misapply the maxim that statutes in derogation of the common law must be narrowly interpreted. Chatman argues that RSA 651:70 deprives him of a common law negligence action and must be interpreted narrowly; i.e., strictly according to its terms. The result of a narrow interpretation is that the precluded common law right be restricted to only those situations expressly stated in the statute. As argued by Chatman RSA 651:70 applies only to those performing uncompensated public service under this subdivision: in other words, those performing uncompensated public service incident to a sentence of uncompensated service as provided in RSA 651:68 (1994) [Appellant s Brief p. 14-16]. This is not a broad interpretation of RSA 651:70, but an appropriately narrow reading of the immunity afforded by statute. Appellees, advocate an expansive reading of RSA 651:70 by extending the restriction of suit to: those sentenced to Administrative Home Confinement; those voluntarily performing public service even if not ordered to do so by an authority competent to order it pursuant to RSA 5 The idea that finding an inadequate quid pro quo in RSA 651:70 would require this Court to strike down countless other immunity statutes is hyperbole [Appellee s Brief p. 20]. Each statute stands or falls on its own terms, and for the reasons stated in Appellant s Brief p. 30-32 it is not inconsistent to hold that RSA 651:70 fails to provide a sufficient quid pro quo, while the other statutes cited in Lorette, Sweeney, etc. do. 8
651:68 (1994); and, to those simply working to pay down an administrative fee. Because of this, Estate of Gordon-Couture v. Brown, 152 N.H. 265 (2005) supports Chatman s position, not Appellees. In Estate of Gordon-Couture v. Brown, 152 N.H. 265 (2005) the court was required to determine whether applicable recreational use statutes could reasonably be interpreted to expand landowner immunity to all landowners, even those not opening their property to public use, thereby completely eradicating a duty of care owed by landowners. Id. at 271. While a literal interpretation of the statute would support such an expansive view of immunity, the court concluded that a narrow construction of the statute required that it be interpreted to mean only that landowners opening their land to recreational use by the general public would be immune from suit. Id.; see also, Sweeney v. Ragged Mountain Ski Area, Inc., 151 N.H. 239, 243 (2004)(applying narrow construction to ski area immunity holding that snow tuber is not a skier as defined by statute, and ski area immunity will not be extended to a snow tubing injury). By seeking to extend the immunity afforded by RSA 651:70 to any person performing work incident in any way to a criminal sentence, regardless of whether the uncompensated public service is ordered by a competent authority under this subdivision, Appellees ask this Court to expansively interpret a statute in derogation of common law. III. THE STEP DOWN CONTRACT IS AN UNENFORCEABLE AND AMBIGUOUS EXCULPATORY CONTRACT. Lastly, Appellees argue that the Step Down Contract Chatman signed precludes a right 6 of recovery against Appellees [Appellee Brief p. 4-6]. In substance, Appellees argue that the 6 The Appellees also cite to a set of Guidelines purportedly given Chatman. Chatman did not sign these Guidelines nor does he acknowledge in his writ receipt of them. The Guidelines, 9
Step Down Contract is an exculpatory agreement. An exculpatory agreement must clearly state that a defendant is not responsible for the consequences of its own negligence. Wright v. Loon Mountain Recreation Corp., 140 N.H. 166, 169 (1995). An exculpatory agreement which relieves a defendant of his own negligence must clearly state this, preferably by use of the word negligence. Audley v. Melton, 138 N.H. 416, 419 (1994). The Step Down Contract does not in any way clearly inform Chatman that he is releasing others from the consequences of their negligence. It does not clearly state that he is releasing claims for medical bills caused by the negligence of others as opposed to medical bills incurred due to simple accident for which nobody is at fault. In short, to the extent Appellees argue that Chatman waived this action by signing the Step Down Contract they are incorrect in that it is an unenforceable and ambiguous exculpatory contract. Conclusion RSA 651:70 does not apply by its terms to Chatman and his conduct on the date of his injury. To the extent RSA 651:70 is applicable to Chatman, it is unconstitutional as stated in Chatman s Brief. Respectfully Submitted, Certificate of Service John P. Fagan, Esq. Counsel for the Appellant I hereby certify that on this th day of March, 2011 two copies of the foregoing Reply Brief to Brief filed by Appellees was mailed to all counsel of record. John P. Fagan, Esq. therefore, can not be used to support a Motion to Dismiss. 10