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Kravitz v. Beech Hill Hospital9/27/2002
er the verdict in order to conform with the proofs." Beech Hill contends that this retroactive amendment was unfair and prejudicial, as it had no notice of the plaintiffs' claim and had it been provided notice, it would have presented evidence at trial to defeat such a claim.
We agree that it was error for the trial court to allow the plaintiffs to amend their pleadings. RSA 514:9 (1997) permits substantive amendments to pleadings when they are necessary to prevent injustice. Accordingly, the general rule in New Hampshire is to allow liberal amendment of pleadings, and we have held that a party may seek to amend even after a jury's verdict has been entered. See Sleeper v. Company, 100 N.H. 158, 160 (1956). Nonetheless, " t is well settled that a defendant is entitled to be informed of the theory on which the plaintiffs are proceeding and the redress that they claim as a result of the defendant's actions." Pike Industries v. Hiltz Construction, 143 N.H. 1, 3 (1998) (quotations omitted). We, therefore, allow liberal amendment of pleadings so long as the changes do not surprise the opposite party, introduce an entirely new cause of action, or call for substantially different evidence. See Clinical Lab Prod's Inc. v. Martina, 121 N.H. 989, 991 (1981).
In this case, the proposed amendment introduced an entirely new cause of action. The plaintiffs never pleaded breach of contract or restitutional damages. Nor could this claim be inferred from the pleadings and it was not otherwise referred to by either party during the trial. While the jury provided an award for such damages, Beech Hill was not prepared to defend such a claim and presented no evidence on the subject. We conclude, therefore, that the verdict in favor of Kravitz must be set aside.
Affirmed in part; reversed in part.
NADEAU, J., with whom BRODERICK, J., joined, concurred specially; BROCK, C.J., and DALIANIS, J., concurred.
NADEAU, J., concurring specially.
I concur in the court's opinion. I write separately, however, to note that this case did not present us with the question, nor does the court's opinion in this case decide, whether the criminal statute RSA 632-A:3, II (Supp. 2002) would bar the defense of consent in a civil action for rape where the victim was under sixteen years of age at the time of the alleged offense. This court has noted, citing a prior version of RSA 632-A:3, that the statute "fixed the age at which a minor person may consent to sexual intercourse." Goodrow v. Perrin, 119 N.H. 483, 486 (1979). Courts in other jurisdictions have held similar statutes applicable to both criminal and civil cases. See, e.g., Doe ex rel. Roe v. School Dist. No. 2, 518 S.E.2d 259, 262 (S.C. 1999). Because that issue is not before the court, I express no opinion on it, but specially concur simply to point out that it remains an open issue in this State.
BRODERICK, J., joins in the special concurrence.
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