nh personal injury attorney

Defenses in Personal Injury Cases

In a personal injury claim, negligence defenses are used by the defendants as a “blame-shifting” weapon to avoid having to pay for personal injury compensation. These defenses usually highlight the misconduct of the injured that contributed to the cause of the injuries. If successful, the defendant could be fully or partially forgiven by the court.

Due to the complexity of these defenses, parties in personal injury cases often hire lawyers to represent them. A New Hampshire personal injury attorney, for instance, could provide the parties with legal assistance in assessing the chances of winning the case if the accident happened within the state of New Hampshire.


Defending Personal Injury Claims Nature of the Negligence Defenses

Three basic rules apply to defending personal injury lawsuits. First, the defenses could only be used as a direct response to the allegations made by the victim. Second, a negligent defense only only applicable in cases where the victim’s claim is based on the negligent action of the defendant. These defenses cannot be used to excuse the defendant for his intentional action. Third, in cases where more than two parties are involved, it is important to determine who will assume the role of the defendant since a personal injury the defense can only be used by the latter.

The concept of negligence defenses is applicable in many states, including New Hampshire. Typically, an NH personal injury attorney will gather reports both from the police and the doctors to make a complete list of the parties who could have caused the injuries due to negligence. Then, he will assess which of the available defenses could be brought against the injured person’s allegations.

Unfortunately, NH state law does not provide detailed rules on the use of the defenses and the preparation of both the defense and the complaint often require the assistance of a personal injury attorney. New Hampshire court opinions should be considered in assessing the likelihood of winning a personal injury claim.

New Hampshire Comparative Negligence

As mentioned above, several claims of the defendant’s negligent action could be dismissed because of the victims’ own misconduct that, at least partly, caused the injuries. In New Hampshire, the courts follow the modified comparative negligence rule.

Under this rule, the plaintiff could only be awarded personal injury compensation if his fault does not reach 51%. Thus, a New Hampshire personal injury attorney representing the plaintiff needs to show that the defendant was responsible for more than half 50% of the accident. However, the plaintiff’s personal injury compensation could be reduced by the degree of his or her negligent fault.

Assumption of Risk

Assumption of risk is another personal injury defense frequently used in a personal injury claim. It means that the plaintiff was aware of the risks and fully understood the dangers of the activity he undertook.

For instance, if the plaintiff signs a written agreement releasing the other party from liability, it is a strong indication that the victim knew about the risks. Also, in a case where the injured voluntarily entered a high risk, barricaded area and ignored the warning signs at the entrance, it could affect his claim for compensation. Statistics show that New Hampshire courts are hesitant in denying personal injury claims based on this defense alone.

Assumption of risk is more difficult to prove than the aforementioned comparative negligence defense. In many states, including New Hampshire, the majority of cases end up in a personal injury settlement agreement because the parties wanted to avoid the cumbersome and time-consuming court procedure.

However, in cases where the parties cannot find resolution in settlement negotiations, it is necessary to consult a New Hampshire personal injury attorney to ensure that all defenses have been properly utilized and documented.

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nh personal injury attorney

Marine Convicted of Aggravated DWI Due to a Rollover Accident

In the most recent New Hampshire DWI case, a marine has been convicted of aggravated DWI for flipping his truck on the Memorial Bridge in Brentwood in March of 2010. Stephen Bolz, 23, a marine who had been deployed in Iraq for 18 months, has been sentenced to one year in prison for a Class A misdemeanor count of aggravated drunk driving. Under the New Hampshire DWI laws, all drivers with a blood alcohol concentration (BAC) of 0.8 percent or above are deemed intoxicated. Bolz, who is a resident of Kittery, Maine, pleaded guilty and admitted that he was drunk at the time of the incident. According to the authorities, Bolz admitted that he can’t remember anything from the accident.

New Hampshire DWI Laws

According to the New Hampshire DWI statute, the prosecution needs to prove two factors – actual intoxication of the driver and the intent to consume alcohol then drive. Aggravated drunk driving penalties are usually imposed on drivers who have committed other criminal offenses apart from the DWI offense. Penalties include long or evenpermanent license revocation, mandatory installation of an interlock device, community service and lengthy probation. Due to the recent amendments of the laws pertaining to DWI, New Hampshire has been reported to have a low number of DWI cases. An aggravated drunk driving case such as Bolz’s is rather rare in the New Hampshire area.

In the case of Bolz, the court issued a sentence of one year imprisonment followed by a revocation of his driver’s license for 18 months, mandatory installation of an interlock device, completion of a multiple offender program as well as the payment of a fine of $1,500 with $750 suspended.

Indication of a Drunk Driving Offense

The investigation revealed that Bolz’s truck drove over a curb right before entering the bridge. Then it hit a pillar and rolled over. After the cleanup, the truck was kept at the police station where its condition was examined by authorities. There were damages on both sides and all front air bags were deployed. There were also empty Budweiser cans that were found on the front seat.

Typically, the prosecutor is required to prove that the driver consumed enough alcohol to fulfill the legal definition of DWI. New Hampshire laws, like all other states, have introduced the illegal per se violation which is based on the driver’s BAC level. It is considered by courts as an objective indication of a DWI offense even if the driver did not show any sign of intoxication. However, where there is no proof of the driver’s BAC level, authorities rely on other evidence collected in the scene.

In cases such as Bolz’s, it is important to hire a New Hampshire DUI lawyer who is familiar with the amendments of the applicable drunk driving laws and the recent court interpretations. Also, since the statute fails to define all elements of the DUI offense, the services of an experienced lawyer could be crucial for the driver’s defense.

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Murder In Connection with Burglary: A Capital Crime?

NH Criminal DefenseOn February 1, the New Hampshire House Speaker William O’Brien expressed his support of a bill that would impose capital punishment in cases of murder committed in connection with burglary or home invasion.

The act would be named “The Kimberly L. Cates Law” as the legislative response to the burglary case in 2009 which resulted to the murder of Kimberly Cates in her Mount Vernon home.

The Cates’ Criminal Case

Kimberly Cates was reported to have died due to multiple stabs in her body. Her daughter, Jaimie, died of stab wounds as well after throwing her body across her mother’s.

According to one criminal defense attorney who opposes the bill, capital punishment might not be seen as a deterrent by some defendants. Thus, introducing the option of the death penalty for cases similar to the Cates’ case might not affect the crime rate. Other organizations such as the Catholic Diocese of Manchester and the New Hampshire Council of Churches oppose the proposed bill as well.

David, Cates’ husband stated in his testimony that even though he is not an active supporter of capital punishment, he still believes that it should be considered as an option for cases of murder in connection with burglary and home invasion.

New Hampshire Crime Statute

Under the current New Hampshire crime statute, the defendant needs to fall into one of the enumerated types of murder cases for the judge or the jury to consider the death penalty. These types of murder cases include the murder of a judge or an on-duty law enforcement officer, paid killing, murder in connection with rape, murder in connection with kidnapping, murder committed in connection with drug offenses as well as a killing committed by someone already serving a life sentence without parole.

The New Hampshire crime statute was last amended to include the murder of a judge as grounds for capital punishment.

Opinions Vary on the Proposed Capital Punishment Bill

One of the concerns for the introduction of capital punishment in home invasion slayings is that it could be a precedent for other types of crimes. Family members of victims could ask for the expansion of the death penalty to cover other crimes as well. According to a criminal attorney, criminal defense law is still evolving; lawmakers should be cautious in passing bills that could have a snowball effect on other cases.

Among the opponents is State Rep. David Robbins. Even though his own father was a victim of murder by an intruder, he found himself forgiving the killer by supporting the latter’s parole request years after the incident.

Even though Governor John Lynch did not testify, he expressed his support of the bill through a letter, and promised to assist the House and the Senate to pass the said bill.

On the other hand, Senior Assistant Attorney General Will Delker stated in his testimony that the proposal of a bill covering the murder in connection of home invasion and burglary would be too extensive because it could apply to other types of criminal offenses as well. He also mentioned that if the proposed bill would push through, New Hampshire could witness up to three capital punishment cases a year. To be more specific, Delker suggested limiting the scope of the bill to cover only murders of homeowners or their guests committed in connection with burglary.

Statistics of criminal conviction in New Hampshire show that there were only three people who have been sentenced with the death penalty as of this date. All in all, the New Hampshire crime rate is not as high as in other states and no one has been executed due to a capital crime since 1939.

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