The interplay between ending a marriage that may have involved domestic violence for several years and the right of a wife to sue her husband after divorce recently  came together in a case in California.  In Boblitt v. Boblitt, the California Appellate Court considered a civil lawsuit for money damages on a tort claim brought by a wife against her husband for a broken jaw and a history of physical abuse during their 24 year relationship and marriage.

The husband moved to dismiss the case saying that part of the divorce code in California included taking into account a history of domestic violence in determining support and alimony.  He said that the wife’s issues all could have been litigated in the marital case, thereby foreclosing her from filing a lawsuit after the divorce was final.

The doctrine of res judicata means that once a case is decided it is over and done with.  However, a tort action, like the one she brought, is based on the right to be free from personal injury.  The court said there was no sound basis for concluding that the marital code would have fully compensated her for the pattern of violations of those rights.  In other words, considering domestic violence and setting a level of support does not vindicate the primary right of a woman to be free from personal injury.  Therefore, the wife had a right to proceed with a civil action for money damages.

This is Part II of the series on avoiding both personal injury and liability due to winter weather. In the first part, we discussed some winter driving issues. In this installment, we’ll discuss staying on your feet, and making sure your guests do as well.

In Part I, we made the recommendation to purchase and install a set of snow tires on your car to give yourself addition bite on slippery roads. Just like your car transmits all of your intentions through the four contact patches of your tires, your body transmits all of its intentions about walking (if you’re lucky!) through the contact patches of your shoes. For this reason, it is obviously important to choose winter appropriate footwear before venturing out in the slush, snow, and ice. Deep treads are recommended, as are shoes with good ankle support to keep your feet squarely placed on the ground.

Winter driving strategies also have parallels when it comes to transiting by foot. Like you would in your car, look for those paths that are well-worn by previous pedestrians. Use caution in planting your feet when you are forced to cover areas of uncertain traction. Try to avoid carrying heavy loads that place you off-balance when you are required to cover slippery ground. Avoid the temptation to rush.

In addition to taking care of your own safety with regard to winter-time walking, you may also have a duty to take precautions for the safety of others. If you are a landowner or business owner, you have a duty to take all reasonable precautions to mitigate against foreseeable risks to guests. In the winter, that means making sure that the walkways that guests are likely to use are properly shoveled and treated to reduce their slipperiness.

In the next blog, we’ll provide additional tips for dealing with imminent loss of control when you are driving on wintery roads.

One of the things that has caused some of Mr. Bird’s supporters to feel dissatisfied with the New Hampshire Supreme Court’s decision concerns the standard of review applied by the Court and the fact that the Court gave what some see as excessive deference to the government. The first thing to understand about New Hampshire appeal in the Supreme Court is that the Supreme Court is not a “second jury.” The Supreme Court judges assume that the jury got all of the factual questions right. Showing this kind of deference to the factual findings of juries is entirely appropriate. In fact, the system could not operate if the Supreme Court was able to second guess the jury verdict when it hears appeal. Appeals are usually limited to the question of whether the trial judge made an error of law.

The high burden faced by a party appealing a lower court decision, and the deference shown to lower court and jury proceedings, is not unique to New Hampshire. Although there may be some very subtle differences from state-to-state, in general, appellate courts exist to review trial court decisions solely for errors of law. The Supreme Court’s deference to findings of fact in the lower court is standard operating procedure; Mr. Bird is not being picked on in this regard.

One of the things that has caused some of Mr. Bird’s supporters to feel dissatisfied with the New Hampshire Supreme Court’s decision concerns the standard of review applied by the Court and the fact that the Court gave what some see as excessive deference to the government.  The first thing to understand about New Hampshire appeal in the Supreme Court is that the Supreme Court is not a “second jury.”  The Supreme Court judges assume that the jury got all of the factual questions right.  Showing this kind of deference to the factual findings of juries is entirely appropriate.  In fact, the system could not operate if the Supreme Court was able to second guess the jury verdict when it hears appeal.  Appeals are usually limited to the question of whether the trial judge made an error of law.

The high burden faced by a party appealing a lower court decision, and the deference shown to lower court and jury proceedings, is not unique to New Hampshire.  Although there may be some very subtle differences from state-to-state, in general, appellate courts exist to review trial court decisions solely for errors of law.  The Supreme Court’s deference to findings of fact in the lower court is standard operating procedure; Mr. Bird is not being picked on in this regard

The next several weeks will find many of visiting stores and malls to do holiday shopping, as the temperatures plummet and ice forms underfoot.  Commercial establishments owe a duty of reasonable care to keep the pathways and parking lots that you use to access their places of business free of dangerous accumulations of snow or ice.  Many such establishments do a fine job of this, but some do not.  Be on the lookout for ice, so you can avoid it and avoid a fall.  But, even if you are careful, you may still have an accident.  You may find yourself striding along a sidewalk, approaching the entrance to a mall or store, and suddenly your feet come out from under you.  You just fell on a patch of black ice because the people responsible for maintaining the premises did not salt or sand appropriately.

Of course, your first thoughts in such a moment will concern your injuries, if any, and the pain you are suffering.  In the event you decide to bring a claim later, however, it is best if you (or a friend or loved one on your behalf) can do a couple of things.  First, it is tremendously helpful to have photographs of the accident scene and of the dangerous conditions that caused the fall.  Photos will help show how visible the dangerous condition was, and will also come in handy if the store decides to oppose your claim by contending that the area was appropriately sanded or salted.  Second, the accident should be reported to the store so the store has notice of the accident and has the opportunity to investigate promptly.

Be safe out there, but if you have an accident, take the steps that will help you protect your rights.  Consult an experienced personal injury lawyer if you have questions

Mr. Bird was charged with felony criminal threatening.  The government charged that Bird:

did commit the crime of criminal threatening in that by his physical conduct he purposely attempted to place [the woman] in fear of imminent bodily injury or physical contact by waving [a] forty-five caliber handgun, a firearm and deadly weapon pursuant to RSA 625:11, V at [the woman] while telling [the woman] to get off of his property.

In order to gain a conviction at trial, the government is required to prove each and every element of the crime charged beyond a reasonable doubt.  If a single juror has a doubt about even one of the elements, then the judge will tell the jury that it cannot convict a defendant.  The elements of criminal threatening are: (1) that by physical conduct; (2) Mr. Bird placed Ms. Harris in fear of imminent bodily injury or physical contact; (3) by “waving” a deadly weapon at Harris while telling her to get off his property; and (4) he did all of these things purposely.

Based on the facts as set forth in the opinion, there was enough evidence for jury to find that Mr. Bird’s committed each of these elements.  The main controversy seems to surround the rejection of Bird’s claims of self-defense.  RSA 627:7, entitled “Use of Force in Defense of Premises,” governs when a person is justified in using non-deadly force to terminate the commission of a criminal trespass. It states, in relevant part:

A person in possession or control of a premises or a person is licensed or privileged to be thereon is justified in using non-deadly force upon another when and to the extent that he reasonably believes it necessary to prevent or terminate the commission of a criminal trespass by such other in or upon such premises . . . .

When a defendant raises a valid self-defense claim, as Bird did in this case, then the burden shifts to the State to prove that it was unreasonable for Bird to think that his conduct was necessary to terminate Harris’ act of criminal trespass. Based on the guilty verdict, it is clear that the jury believed that Mr. Bird’s conduct was not reasonable in light of the “threat” posed by the trespasser.

The Ward Bird case has generated a great deal of local, and even national, attention.  On its face, the fact that a man with no criminal record whose only action was showing a gun to an intruder suggests an extreme miscarriage of justice.  The cases raises questions about the freedom a property owner to act in self-defense on his or her own property, judicial power, and the wisdom of laws establishing minimum mandatory sentences that are imposed without the benefit of a judicial “safety valve.”  The facts of the case, as recounted by the New Hampshire Supreme Court in its October 27, 2010 decision, are as follows:

Christine Harris arranged to meet a real estate agent on March 27, 2006, at his office to view a property for sale in Moultonborough owned by Patricia Viano that Harris was interested in purchasing. That day, she called the real estate agent to inform him she was running late and could not make the appointment. Because he could not meet her later that day, she decided to look at the property herself. During her drive to the property, she became lost and stopped at the home of the defendant’s niece, where she asked for directions. The niece told her that the most direct route to the property was Emerson Path to Yukon Trail, and then a road to the left with a small bridge over a stream. The niece told her that if she passed a white “job trailer,” she was on the wrong property.

After Harris left the home of the defendant’s niece, the niece telephoned the defendant to warn him that Harris was going to look at the Viano property and that she might show up on his property. She also told the defendant that Harris was driving a Ford Ranger. Harris followed the niece’s directions and drove past signs that stated “Private road, keep out” on Emerson Path and “no trespassing” on Yukon Trail. She missed the left hand turn off of Yukon Trail, drove past the white trailer, and ended up in front of the defendant’s house. She parked her car and got out. The defendant emerged from his home “screaming, get the F off my property.” He came down from his porch, continuing to yell profanities while waving a gun at her. At trial, she testified that he pointed the gun “[t]owards” her. Harris asked the defendant whether he was the boyfriend of the woman selling the property. He repeated his command for her to leave his property. Harris eventually climbed back into her car, mouthing “[w]hat an ass.” The defendant then walked off the porch toward her waving his gun as she backed out of the driveway.

Over the next several days, we will be updating this series of postings on the Ward Bird case, addressing the law of criminal threatening, prosecutor’s exercise of discretion, the right of self-defense and the duty to behave reasonably, and the merits of statutory mandatory minimum sentences, such as the one imposed on Mr. Bird.