We acknowledge that what may be unclear are the precise nature of the attributes of life to be considered and calculations performed in order to estimate damages for loss of life. That same uncertainty, however, afflicts the plain reading of "mental and physical pain suffered," which is a similarly intangible element of damages under RSA 556:12. See Duguay v. Gelinas, 104 N.H. 182, 185, 182 A.2d 451, 453 (1962) (decided under prior law). Yet the ambiguities inherent in that phrase, absent judicial interpretation, see, e.g., Thibeault v. Campbell, 136 N.H. 698, 702-04, 622 A.2d 212, 215-16 (1993) (mental pain interpreted to include anguish suffered in anticipating accident), have not rendered it inapplicable under our law. Just as we have entrusted the trier of fact with the difficult task of "[t]ranslating pain and anguish into dollars," Duguay, 104 N.H. at 185, 182 A.2d at 453, we entrust it with the similarly unenviable task of assessing damages for loss of life. "The law . . . undertakes to do justice as best it can, although of necessity crudely.
In support of the motion, the plaintiffs rely on the New Hampshire rule that nonuse of seatbelts "is inadmissible to show negligence where the nonuse may have contributed to the party's injuries but was not a cause of the collision itself."Thibeault v. Campbell, 136 N.H. 698, 701-02 (1993). Nonuse of a seatbelt is also inadmissible to show a plaintiff's failure to mitigate damages.
"A trial judge has the responsibility not only to see that the trial is fairly conducted but also to correct or vacate what turns out to be an unfair result." Thibeault v. Campbell, 136 N.H. 698, 703 (1993) (quotation omitted). Whether remittitur is appropriate rests with the trial court's sound discretion.
To prove its negligence and negligent failure to warn claims, the plaintiffs must “establish that the defendant owed a duty to the plaintiff, breached that duty, and that the breach proximately caused the claimed injury.” Est. of Joshua T., 150 N.H. at 407 (internal citation omitted); see alsoThibeault v. Campbell, 136 N.H. 698, 701 (1993) (“In order for one's conduct to constitute tortious negligence, it must be in breach of an existing duty and create a foreseeable risk of harm to someone to whom that duty is owed.”)
Goodwin, 134 N.H. at 583, 595 A.2d at 507. The New Hampshire Supreme Court has stated repeatedly that "[n]to every risk that might be foreseen gives rise to a duty to avoid a course of conduct; a duty arises because the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous."Manchenton, 135 N.H. at 305, 605 A.2d at 214; see also Thibeault v. Campbell, 136 N.H. 698, 701, 622 A.2d 212, 214 (1993) (same);Millis, 144 N.H. 446, 449, 744 A.2d 81, 84 (1999) (same). The determination of whether a duty exists in a particular case is a question of law to be determined by the trial court.
Under New Hampshire law, civil liability for tortious negligence may be established where an actor is "in breach of an existing duty and create[s] a foreseeable risk of harm to someone to whom that duty is owed." Thibeault v. Campbell, 136 N.H. 698, 622 A.2d 212, 214 (1993) (citation omitted). We note that numerous state courts have also held that enforcement of similar insurance policy provisions excluding coverage for criminally caused loss or liability does not violate the public policy of those states.
In the court's view, the answer to this question depends on the identity of the particular plaintiff. New Hampshire law allows recovery under the wrongful death statute, RSA 556:12, I, "for any conscious pain and suffering endured by the decedent in anticipation of the fatal accident," including "pre-accident fright." Thibeault v. Campbell, 136 N.H. 698, 702 (1993). It seems obvious that the alleged comment to Worley would have contributed to Coffey's consciousness of her plight, and is therefore admissible on that point — assuming, of course, that Coffey heard the comment.
"In order for one's conduct to constitute tortious negligence, it must be in breach of an existing duty and create a foreseeable risk of harm to someone to whom that duty is owed." Thibeault v. Campbell, 136 N.H. 698, 701, 622 A.2d 212, 214 (1993) (emphasis added) (citing Manchenton v. Auto Leasing Corp., 135 N.H. 298, 304, 605 A.2d 208, 213 (1992)). "[A]bsent the existence of a duty, a defendant cannot be liable for negligence. . . .
While "not every risk [of harm] that might be foreseen gives rise to a duty . . . a duty arises [if] the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous." Thibeault v. Campbell, 136 N.H. 698, 701, 622 A.2d 212, 214 (1993) (quotation and brackets omitted). Thus, parties owe a duty to those foreseeably endangered by their conduct with respect to those risks whose likelihood and magnitude make the conduct unreasonably dangerous.
On the contrary, we view the long and unchallenged history of Alexander's holding as evidence of the legislature's approval of our statutory interpretation: "[W]hen the legislature reenacts a statute on which a repeated practical construction has been placed by the Bench and Bar, that reenactment constitutes a legislative adoption of the longstanding construction." Thibeault v. Campbell, 136 N.H. 698, 702, 622 A.2d 212, 215 (1993). We also see no conflict between our holding in Alexander and either RSA 479:26, III or L.M. Sullivan.