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Powell v. Catholic Medical Center3/21/2000
f foreseeability, we are talking about reasonable foreseeability of a risk of harm and not some sort of prophetic vision as to what might conceivably happen. The defendants rely on N.H. Civil Jury Instructions 3d. ยง 6.3 (1997), which states that to be foreseeable "the results of an act must not be merely possible, but probable." "The concept of foreseeability applied in this State originates from Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928)." Goodwin v. James, 134 N.H. 579, 583, 595 A.2d 504, 507 (1991).
"Generally, persons will not be found negligent if they could not reasonably foresee that their conduct would result in an injury to another or if their conduct was reasonable in light of the anticipated risks." Manchenton v. Auto Leasing Corp., 135 N.H. 298, 304, 605 A.2d 208, 213 (1992). We have never held that foreseeability requires a finding of probability. See, e.g., Manchenton, 135 N.H. 298, 605 A.2d 208; Goodwin, 134 N.H. 579, 595 A.2d 504; Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979). Indeed, the defendants concede that they could not find a case from this jurisdiction that uses "the precise language of `probable result' when discussing foreseeability."
The defendants next argue that the trial court should have instructed the jury that the plaintiff was required to prove that the patient communicated a serious threat of physical violence against a clearly identified or reasonably identified victim.
By this argument the defendants essentially attempt to impose the requirements of RSA 329:31 on the plaintiff's common law duty to warn claim. As stated above, however, RSA 329:31 is not applicable to this case. Accordingly, the trial court was correct in not incorporating the elements of RSA 329:31 in its instruction.
Finally, Dr. Curtis argues that the trial court should have instructed the jury that a mistake in judgment on the part of a physician is not evidence of negligence. Dr. Curtis relies upon Leighton v. Sargent, 27 N.H. 460, 472-73 (1853), in which we stated that "a professional man is not responsible for errors of judgment, for mere mistakes, in cases of reasonable doubt and uncertainty." Dr. Curtis conceded during his opening statement, however, that this case does not involve medical malpractice. This is an ordinary duty to warn case. Therefore, we reject this argument.
Taking the jury instructions as a whole, we conclude that the trial court "fairly presented the case to the jury in such a manner that no injustice was done to the legal rights of the litigants." Rawson v. Bradshaw, 125 N.H. 94, 100, 480 A.2d 37, 41 (1984) (quotation omitted).
III. Expert Testimony
The defendants next argue that expert testimony was necessary regarding the duty to warn. The plaintiff counters that the jury could determine for itself whether the patient posed a danger to those who came into contact with him.
"Expert testimony is required whenever the matter to be determined is so distinctly related to some science, profession, business or occupation as to be beyond the ken of the average layman." Lemay v. Burnett, 139 N.H. 633, 635, 660 A.2d 1116, 1117 (1995) (quotation omitted). The defendants argue that expert testimony was necessary to determine the violent propensities of the patient.
We find that the evidence in this case presented ample examples of the patient's conduct for a layperson to determine whether a warning was necessary. For example, from the evidence that the patient pushed aside nurses and therapists, the jury could have concluded that it was foreseeable to an ordinary person that the patient might engage in this type of behavior again. Specialized
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