Court Upholds Colebrook Selectmen’s Vote against a Right-to-Know Challenge

Jules A. Kennett, a Colebrook resident, brought a lawsuit against the Town of Colebrook (“Town”), asking the Court to overturn the Town’s decision to participate in the Coos County Recycling Program (“County Program”).  Mr. Kennett represented himself at trial, and the Town of Colebrook was represented by Attorney Jonathan Frizzell of Waystack Frizzell, Trial Lawyers.  At a trial held on January 26, 2017, the Court considered numerous exhibits and the testimony of seven witnesses.  On March 20, 2017, the Court issued a lengthy written decision (click HERE to read the decision), finding in favor of the Town on all issues.

The County Program is a program where the recyclables from several towns are collected and transported to a facility in Stewartstown.  At that facility, inmates from the Coos County House of Corrections prepare the recyclables for sale.  Until recently, Colebrook had been preparing its own recyclables for sale, which included weighing the materials, grinding glass products, baling paper, etc., and then transporting them for sale once enough materials had been stockpiled to justify the cost of transportation.

On November 23, 2015, at a properly noticed meeting, the Town’s three selectmen, Raymond Gorman, Suzanne Collins, and Greg Placy, voted to have the Town stop managing its own recyclables, and to instead join the County Program where recyclables would be managed using inmate labor.  The Court, in its decision, noted that joining the County Program in 2017 would save the Town a significant amount of money, and, therefore, the Selectmen’s vote was “seemingly [a] sound financial decision.” (Order, footnote 3.)  After the November vote, on December 11, 2015, the Town’s three Selectmen, Town manager, road agent, and an employee from the Transfer Station met with representatives of the County Program.  The meeting took place at the Town’s Transfer Station.  The focus of the meeting was to examine the Transfer Station’s equipment to see what changes, if any, needed to be made to the Town’s facilities before the transition to the County Program.  This meeting was not noticed as a “meeting” pursuant to the Right-to-Know law.  Mr. Kennett alleged that the failure to properly notice this meeting, which included the attendance of a quorum of the Selectmen, violated the Right-to-Know law, and, therefore, he asked the Court to invalidate the vote to join the County Program.

The Court held that the December meeting did not constitute a meeting as defined by the Right-to-Know law because it was not “convened for the purpose of discussing or acting on any matter within the Selectmen’s authorities, but was rather an opportunity merely to discuss the logistics of the Town’s transition to the County Program.”  Since it was not a meeting as defined by the law, the failure to notice the meeting was not a violation of the law.  The Court further found that the action Mr. Kennett sought to invalidate (the vote to join the County Program) was not taken at the December meeting, but rather was taken at the properly-noticed November meeting, which did comply with the Right-to-Know law.  The Court lastly found that Mr. Kennett’s allegation that Suzanne Collins had a conflict of interest due to her previous positions within the county was completely unfounded.  The Court denied Mr. Kennett’s prayers for relief on all issues, and upheld the Town’s actions.  To read the Court’s decision, click HERE.


School is not Immune from Liability when Student is Injured in Shop Class

For a copy of the Court’s order, CLICK HERE.

Facts: Attorney Frizzell successfully represented a young high school student who lost most of his right hand in an industrial machine during his shop class.  The machine was an old, purchased by the school in approximately 1970, and students used it to bend steel by hand feeding a sheet of metal in between two large metal rollers.  When feeding metal into the machine, the Plaintiff’s gloved hand became caught in the rollers, pulling most of his fingers into the machine.  He tried to stop the machine using its emergency trip wire and the stop button, but he could not get them to work.  Therefore, he pulled his hand out, amputating four fingers and part of his hand.  The Plaintiff had been instructed to wear gloves while operating this machine by the shop teacher.

Claims: The Plaintiff sued the school (among other defendants), arguing (1) the instructor negligently instructed and supervised the Plaintiff, specifically that he instructed the Plaintiff to wear gloves while operating industrial machines with moving parts contrary to industry safety standards, (2) that the school negligently maintained the machine, causing the machine’s emergency trip wire to malfunction during the incident, and (3) the school negligently purchased and maintained the machine because its design included an unsafe recessed stop button, as opposed to a safer mushroom-head stop button that extends above its surroundings.

Common Law Immunity: The school moved for summary judgment, asking the Court to dismiss the case based on statutory and common law municipal immunity.  The Plaintiff objected.  Under New Hampshire Common Law, schools might be immune from liability for their teachers’ actions if the Court determines that exposing the school to liability would focus a “stifling attention” on the teacher’s job performance, such that the teacher is deterred from effectively performing his discretionary duties because of a fear of litigation.  The Court held that the school is not immune in this case, because student safety is always of paramount importance to teachers.  In other words, a fear of litigation would not exert any significant additional stifling attention on the teacher because the importance of student safety was already paramount.  Regarding the school’s maintenance of the trip wire and failure to retrofit the stop button, the Court held that it was not clear whether the school affirmatively decided not to fix the trip wire or button, or if it overlooked the problems.  Therefore, because immunity is not a defense to a claim of mere inaction or inattention, the school was not entitled to immunity on these claims either.

Statutory Immunity: Under New Hampshire RSA 507-B:15, schools are immune against claims relating to instruction, monitoring, and supervision of students.  However, there is an exception to this immunity if the claims relate to the “operation” of its “physical premises.”  The Plaintiff argued that this exception applied in this case, and the Court agreed.  RSA 507-B:2’s premises liability exception requires a nexus between the claim and the governmental unit’s ownership, occupation, or operation of its physical premises.  The Court held that the teacher’s instruction to wear gloves while operating the machine constituted a part of the “operation” of the school’s physical premises; therefore, the Court denied the defendant’s Motion for Summary Judgment based on statutory immunity.

Conclusion:  After the Court denied the defendant’s Motion for Summary Judgment, the parties settled the case during private mediation.  For a copy of the Court’s order, CLICK HERE.

Successful Personal Injury Settlement – Negligent Truck Driver vs. Bicyclist

A local North Country couple recently obtained a settlement for the full limits of insurance coverage after they were run down by the defendant in his truck.  Tragically, this nightmare occurred while the couple was enjoying what was supposed to be a relaxing summer vacation.  On a bright, warm, and sunny day, they were riding their bicycles lawfully through a cross walk on a bike path, when the defendant recklessly drove through a stop sign, running over the plaintiff.    The emergency responders found the plaintiff with his legs underneath the defendant’s large pick-up truck, suffering from severe and permanent injuries.

As a result of the defendant’s negligence, the plaintiff sustained severe injuries, including both a left and right pneumothorax (separation of the lung from the chest wall), a left plural effusion (liquid buildup in that space), in addition to numerous contusions, lacerations, bruises, swelling, and inflammation.  He was rushed, via helicopter, to a trauma center, where he was hospitalized for an extended period of time.

The healing process for multiple displaced rib fractures, pneumothoraces, and a pleural effusion is slow and painful.  The plaintiff endured significant pain for nearly a year after the collision.  The greatest pain was at night, and, therefore, he was unable to sleep in his own bed.  Instead, he slept alone for months on a recliner in his living room, because the elevation helped ease some of his pain.

The plaintiffs were facing significant medical bills and they were unsure what they should do to protect their rights.  They reached out to Attorney Sandra Cabrera, who immediately reviewed the accident report and the plaintiff’s medical records.  She guided them through the red tape of dealing with insurance companies.  Recently, Attorney Cabrera assisted the plaintiffs in reaching a settlement for the full limits of the available insurance coverage.  Settlement was obtained without the need for filing a lawsuit.  The plaintiffs were relieved they were not exposed to the stress of depositions or a trial, and they are grateful for the support and assistance from Attorney Cabrera and the staff at Waystack Frizzell through this difficult time.

The attorneys at Waystack Frizzell, Trial Lawyers have extensive experience handling personal injury cases.  If you or a loved one has been injured, contact one of our attorneys to protect your rights and to receive professional support though this difficult experience.

Favorable Opinion on the Value of Medical Services in an Injury Case

Our firm recently added an important victory on the side of families and workers dealing with injuries.  A copy of the Court’s order can be read HERE.

Attorney Philip Waystack recently represented a North Country couple who were injured in an automobile collision caused by the negligence of the defendant.  The plaintiffs claimed their medical bills as damages in the case.  The defendant argued that the full cost of the medical bills should not be admissible on the issue of damages.  The defendant essentially wanted a credit for any amount of the medical bills that were written-off, or discounted, through negotiations between the medical providers and the plaintiffs’ health insurance company.

There is currently a split of authority in the lower courts of New Hampshire on the issue of whether the lesser negotiated amount paid by health insurance companies is the relevant measure of damages, as opposed to the initial face value of the medical bill.

The Court, in an order written by Coos County Superior Court Justice Peter Bornstein, agreed with the plaintiffs, and held that (1) the face value of a medical bill is relevant and admissible on the issue of the reasonable value of medical services, and (2) any discounts or write-offs health insurance companies obtain are a benefit within the meaning of New Hampshire’s collateral source rule and, therefore, are inadmissible at trial and cannot be used to reduce the plaintiffs’ damage award.

Until the New Hampshire Supreme Court resolves this dispute there will continue to be a lack of clear direction on this important issue.  We are glad that we were able to obtain this victory and assist other trial lawyers throughout New Hampshire who are litigating this ongoing issue.

Attorney Jon Frizzell appointed to Board of N.H. Association for Justice

Attorney Frizzell recently became the Coos County representative for the New Hampshire Association for Justice.  “For over 30 years, NHAJ (formerly N.H. Trial Lawyers Association) has been developing and leveraging the knowledge and skills of trial lawyers to preserve public access to the courts, protect individual rights, and promote justice for all.”  NHAJ also promotes and monitors legislation at the state house in Concord to safeguard the rights of accident victims, workers, and their families.

Successful Defense – Motor Vehicle Habitual Offender Certification

A client, without counsel, plead guilty to a serious motor vehicle offense.  Later, the client received notice that he was eligible to be “certified a habitual offender” and lose his driving privileges for 1-4 years.  This is a serious issue because if one is caught driving while certified a habitual offender, he could face a 2.5 year prison sentence.

Realizing the seriousness of this issue, the client retained Attorney Garrison of Waystack Frizzell.  Attorney Garrison negotiated with the State and obtained court approval to vacate the convictions, thereby avoiding client’s certification as a habitual offender.