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.