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Cusson v. Beauregard3/5/1999
NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Clerk/Reporter, Supreme Court of New Hampshire, Supreme Court Building, Concord, New Hampshire 03301, of any errors in order that corrections may be made before the opinion goes to press. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.state.nh.us/courts/supreme.htm
Rockingham
The plaintiffs, Gerard and Bertha Cusson, appeal a decision of the Superior Court (Gray, J.) granting the motion of the defendant, Dennis A. Beauregard, for a non-suit. We affirm.
The plaintiffs allege the following facts. Mr. Cusson was driving his motorcycle southbound on Mammoth Road in Manchester while the defendant was driving his truck eastbound on Bridge Street. The two vehicles collided at the intersection. Mr. Cusson hit a piece of wood the defendant had placed over two metal brackets designed to hold a snow plow. The collision caused severe injuries to Mr. Cusson, which he claimed were caused by the snow plow brackets. Mrs. Cusson claims that Mr. Cusson's injuries have caused her to suffer a loss of consortium.
In their opening statement, the plaintiffs alleged that the defendant operated his truck with an improper and illegal front bumper, and that the defendant had a duty to keep a proper lookout before heading into the intersection, even though he had a green light.
After the plaintiffs' opening statement, the trial court dismissed the case on the defendant's motion, stating:
"The crux of the plaintiff's case was not that the driving of either party was at fault but that the design and construction of a wooden fender across two snow plow attachments on defendant's truck caused the injuries to plaintiff by not having sufficient strength to push the plaintiff's motorcycle aside but rather broke, allowing the plow bracket to strike the plaintiff's leg. Plaintiff admitted in his opening [statement] that he ran a red light and that the defendant had a green light. Nowhere in his opening did the [plaintiff] allege that the defendant's negligence caused this accident. [Plaintiff] misconstrues damages with causation. The plow bracket may have caused the injuries but there must be negligence in the cause of the accident. None was alleged . . . ."
The plaintiffs appeal, arguing that the trial court improperly granted the defendant's motion for a non-suit. On appeal, we review the grant of a motion for non-suit after an opening statement to determine "whether upon that evidence there is a case for submission. In passing upon defendant's motion for non-suit, the Court must consider the evidence as true and consider all the evidence most favorably to the plaintiff." Carr v. Company, 101 N.H. 84, 85, 133 A.2d 497, 498 (1957) (quotation and citation omitted); see also Labore v. Company, 101 N.H. 123, 126-27, 135 A.2d 591, 594 (1957).
The plaintiffs alleged that the defendant breached two duties which proximately caused the plaintiffs' injuries; namely, failure to yield and failure to have a proper bumper. The trial court dismissed the plaintiffs' claims, noting that the plaintiffs misconstrued damages with causation. We have held that
"there is no duty to lessen damages if the actor is not responsible for the accident. To require that an operator . . . lessen the force of a possible impact might result in an accident when otherwise it would be avoided, or in making one worse. We are not now concerned with lessening the force of a certain impact or wi
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