Circuit Courts Are Upon Us

The advent of the Circuit Courts in NH is upon us.  The idea is to centralize the services provided by the Court in order to reduce administrative costs and, in theory, to make the Court more convenient for the consumer.  One stop shopping.  Where we now have Probate Court, Family Court, Juvenile Court, and Criminal Court, all those will be under one roof with a common Clerk and, I assume, Judge

The Judiciary will be the ones most stretched by the new arrangement.  A judge will often have to switch gears from reviewing a Probate Accounting to accepting a plea on a DWI, to hearing a Custody issue.  All in the same hour.  It will not be easy and the Judges will have to be cross trained.  Patience will be required.

The transition will have its challenges.  All changes do.  The current system has been in place for decades and confusion will reign for a while.  Lawyers and litigants alike are used to lines of demarcation.  It will take more time to figure out where to go and what to do.  There will be less human contact with the people who are the system.  Like the self checkout lines at the Supermarket, you will have to ring things up yourself, then pay.

It is unfair to criticize unless one has a better idea.  Obviously, our legal system has been neglected and needs some updating.  Electronic filing will help.  Streamlining the litigation process will free up valuable resources.  It seems like implementing these changes gradually would make sense.  We are told that the economic realities do not give us that luxury today.

It is hoped that, after a period of adjustment, the system will be in a better place.  Time will tell.  The effort is well intended.  Let us hope it is well designed.

By Kent M. Barker

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Premises Injury

Legal Fault for Injury from Dangerous Conditions

New Hampshire law requires that owners and occupiers of property use a reasonable amount of care in the way they construct, use, and maintain their property.  They are not responsible for an injury simply because it happened on their property.  Landowners can be legally at fault for an injury only if the injury is caused by their failure to use reasonable care (negligence). What is reasonable care depends upon the circumstances.

By way of illustration, if an injury is caused by slipping on a banana peel and the banana peel had been on the floor for only 30 seconds, it would be difficult to argue that the property owner failed to exercise reasonable care by not being aware of and not picking up the banana peel.  However, if the banana peel was known by the property owner to have been on the floor and/or had been there for a prolonged period of time, then an injury resulting from someone slipping on it would appear to have been caused by negligence.  It is the negligence which creates legal fault, not the injury on the premises.

Lack of care by a property owner can take many forms: a store which doesn’t reasonably salt or sand the walkway it provides for patrons, a stairway built without the railing required by governing code, a floor which is unsafe because of unattended-to wetness or debris, a floor surface with a protruding tripping hazard, damage or injury caused by a dog, or any other dangerous condition which should have been known to exist and which could have been expected to cause injury. The legal obligation of property owners to use reasonable care is fundamental to promoting the level of safety we enjoy every day.

If it can be proven that an injury resulted from property owner’s negligence, the injured party is to be fairly compensated by the responsible party for the resulting injuries and losses.

Collect and Preserve the Evidence

A valid claim can be lost for the lack of evidence to prove it. It is essential to collect and preserve any evidence you can of how the accident occurred.  Photographs must be taken as soon as possible of the exact site of the injury and of the location in general, as well as of any outward signs of injury.  One should also be sure to keep copies of any documentation involved, such as:  accident reports completed, statements given, letters written or received, bills and receipts, witness information.

Insurance

As a practical matter, a viable personal injury claim usually requires insurance coverage on the part of the responsible party.  In premises injuries, the applicable insurance coverage is homeowner’s insurance or commercial property insurance.  Such coverage can apply to injuries on the insured premises, injuries caused off the premises by insured personal property including dogs, and to non-motor vehicle conduct by the insured on or off the premises.  However, such insurance coverage does not apply to an injury unless there is legal fault, i.e. negligence on the part of the insured which has caused the subject injury.

If you are a property owner and need to be defended against a claim arising out of a premises injury, it is the responsibility of your insurance company, up to the amount of your insurance coverage.  They will investigate the claim, hire and pay a lawyer to defend the claim and to pay compensation due the injured party (within the limits of your liability coverage).  It is a precondition to your insurance coverage that you cooperate with your insurance company.

Medical Care

Prompt and appropriate medical care is crucial.  It is obviously necessary for one’s health. It is also essential to ascertaining and documenting an injury.

Full, Fair and Adequate Compensation

In New Hampshire, a person injured by another’s negligence is entitled to compensation to reimburse his or her resulting losses.  The losses entitled to compensation include:  medical bills, incidental financial expenses, lost wages, physical pain, emotional upset, scarring, loss of enjoyment of life, permanent physical impairment.  Our law provides that the party injured by the negligence of another is to receive “full, fair and adequate compensation.”  That is to say that the amount of compensation is dependent on the magnitude of the harm suffered.

After the relevant facts of an injury are determined, after the evidence regarding the incident is assembled, and after any injuries have either stabilized or finally resolved, a claim is capable of being valued.  A claim cannot be competently valued before its components have been determined.  Those components will include: the strength of the evidence that the responsible party caused the injury by a lack of reasonable care; any contributing lack of care on the part of the injured party; the seriousness of the injury; the extent, intensity and duration of symptoms; the amount of medical bills; the extent and duration of the disruption of normal work and non-work activities; the amount of past and future income lost caused by the injury; the resulting emotional upset and the loss of enjoyment of life. Ultimately, the probable value of a claim is determined by the “market place,” i.e. the range of value which cases with comparable facts have yielded in local verdicts and settlements.

When the facts of an injury case have stabilized, the case is assembled for presentation to the responsible insurance company.  Thoroughness, persuasion, and mastery of the legal and factual issues make for a claim which must be taken seriously.  An insurance company will usually respond to genuine financial risk created by a properly prepared claim. As a business it does not have the option of simply doing what is right.  Instead, its task is to do what it can to resolve in its own best interest what it perceives to be a probable financial exposure.

Generally, settlement discussions are first attempted with the responsible party’s insurance company, with a view towards negotiating an acceptable settlement without a formal lawsuit or trial.  The vast majority of these cases are settled without the need for a trial.  However, it is often the ability to bring suit and to go to trial that prompts the responsible insurance company to discuss reasonable resolution.  If the insurance company is not acting fairly to resolve the matter, then a suit can be brought in the appropriate court.  Even though a lawsuit may have been started, the possibility of voluntary resolution can be explored at any stage of the process.

The commencement of suit is accomplished by formally serving the responsible party with a document notifying him or her of the claim.  The next stage of a suit is the exchange between the parties of all relevant or potentially relevant information.  That is first done by written questions (interrogatories) and later by oral question and answer (deposition).

Eventually, if the matter cannot be resolved between the parties voluntarily, testimony and evidence would be presented to a jury made up of 12 randomly selected citizens for their unanimous decision on legal fault and on what constitutes fair compensation for the proven losses.

Do I Need a Lawyer?

New Hampshire law provides that a negligently injured party is to receive fair compensation.  That includes more than just paying medical bills or lost wages.  As anyone who has suffered an injury can tell you, the financial consequences are a small part of an injury.

Insurance companies are contracted and paid to provide fair compensation in the event of such injuries.  However, minimizing the cost of such claims is in the business interest of an insurance company.  It is a process of competing interests and insurance adjusters and investigators are good at serving the interest of their employer.

The fact of the matter is that the successful exercise of legal rights requires skill and experience. At Winer and Bennett, LLP, you will receive the professional determination, expertise and resources required to make sure that your right to a fair recovery commands the respect it deserves.

By:  Peter G. Webb

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