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95-320, JOHN AND SUSAN MEANEY v. ALFRED RUBEGA
State: New Hampshire
Court: Supreme Court
Docket No: 95-320
Case Date: 12/31/1997

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Clerk/Reporter, Supreme Court of New Hampshire, Supreme Court Building, Concord, New Hampshire 03301, of any errors in order that corrections may be made before the opinion goes to press. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is:

 

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district

No. 95-320

JOHN AND SUSAN MEANEY

v.

ALFRED RUBEGA

December 31, 1997

 

Stein, Volinsky & Callaghan, P.A., of Concord (Robert A. Stein and Peter J. Lavallee on the brief, and Mr. Stein orally), for the plaintiffs.

Devine, Millimet & Branch, P.A., of Manchester (Andrew D. Dunn and Julie A. Dascoli on the brief, and Mr. Dunn orally), for the defendant.

MEMORANDUM OPINION

BROCK, C.J. The plaintiffs, John and Susan Meaney, appeal the Superior Court (Sullivan, J.) denial of their motion to set aside the verdict and for a new trial based on the trial court's failure to instruct the jury that brake failure is an affirmative defense. We affirm.

On June 10, 1992, plaintiff John Meaney was exiting his State Police cruiser at a construction site on Interstate 89 in Hopkinton when a vehicle operated by the defendant, Alfred Rubega, struck the cruiser. The plaintiffs sued the defendant for negligence and for loss of consortium. The defendant denied liability "on the basis of the failing of his brakes, which were presumed to be in good working order."

At trial, the plaintiffs requested that the trial court instruct the jury that brake failure is an affirmative defense, requiring the defendant to prove by a preponderance of the evidence that brake failure was the cause of the accident. The trial court denied the request. The jury returned a verdict for the defendant; this appeal followed.

"The purpose of jury instructions is to identify the factual issues which are material for a resolution of the case, and to inform the jury of the appropriate standards by which they are to decide them." Peterson v. Gray, 137 N.H. 374, 377, 628 A.2d 244, 246 (1993) (quotation omitted). We review the propriety of jury instructions by looking at the charge as a whole. Chellman v. Saab-Scania AB, 138 N.H. 73, 79, 637 A.2d 148, 151 (1993). "A jury must be instructed adequately and accurately on the relevant law, and whether or not a particular instruction is necessary is left to the trial court's sound discretion." State v. Seymour, 140 N.H. 736, 744, 673 A.2d 786, 793 (1996).

An affirmative defense is a "matter asserted by [the] defendant which, assuming the complaint to be true, constitutes a defense to it." Black's Law Dictionary 60 (6th ed. 1990). In other words, by raising an affirmative defense, the defendant admits the plaintiff's allegations but provides an excuse or justification or otherwise defeats the plaintiff's cause of action. See Seavy v. Dearborn, 19 N.H. 351, 355 (1849); see also Fothergill v. Seabreeze Condos., 141 N.H. 115, 116-117, 677 A.2d 696, 697-98 (1996) (noting statute of limitations is affirmative defense).

On the other hand, "a denial is a traverse of the facts alleged in the [plaintiff's] pleading." 61A Am. Jur. 2d Pleading

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