Bob Matte's Raceway Motors, Inc. v. Michael Smith

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0138, Bob Matte's Raceway Motors, Inc.
v. Michael Smith, the court on September 21, 2015, issued the
following order:

Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The plaintiff, Bob Matte’s Raceway Motors, Inc., appeals an order of the
Superior Court (Kissinger, J.), following a bench trial and a view, dismissing its
claim of negligence per se and finding in favor of the defendant, Michael Smith,
on its remaining claims. The plaintiff contends that the trial court erred by: (1)
dismissing its negligence per se claim; (2) failing to apply “the substantive
standards of RSA 485-A . . . to [its] negligence claim rather than the reasonable
person standard”; (3) making findings that were not supported by, or were
against the weight of, the evidence; and (4) failing to find that the defendant
created a private nuisance.

We first address the plaintiff’s arguments that the trial court erred by
dismissing its negligence per se claim and by applying the reasonable person
standard. When reviewing a motion to dismiss at the close of the plaintiff’s case
in a jury-waived trial, we will not set aside the trial court’s findings of fact unless
they are clearly erroneous and will not reverse the dismissal unless it is
inconsistent with the findings or contrary to law. Clipper Affiliates v. Checovich, 138 N.H. 271, 274 (1994).

Even if we were to assume, without deciding, that the reasons articulated
by the trial court in dismissing the negligence per se claim were legally
erroneous, the plaintiff was still obligated to prove causation in order to prevail
upon a negligence per se theory. Cf. Mahan v. N.H. Dep’t of Admin. Services.,
141 N.H. 747, 754 (1997) (stating when common law negligence action exists,
negligence per se doctrine may define statutory standard of conduct as
alternative to reasonable person standard). Here, the trial court found that the
plaintiff had “not shown by a preponderance of the evidence that [the defendant]
has caused harm to [its] premises.” Whether the defendant caused the plaintiff’s
damages is a question of fact. See Cecere v. Loon Mt. Recreation Corp., 155 N.H.
289, 295 (2007).

It is the plaintiff’s burden on appeal to provide a record that is sufficient to
decide the issues it is raising. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250
(2004). Absent a transcript, we assume the evidence was sufficient to support
the result reached by the trial court, id., and review the order for errors of law
only, see Atwood v. Owens, 142 N.H. 396, 397 (1997).

Because the plaintiff has failed to provide a transcript, we must assume
that the record supports the trial court’s finding that the plaintiff failed to prove
causation. Accordingly, we conclude that the plaintiff could not prevail on a
negligence theory, regardless of whether the duty of care derived from statute or
common law, and that any error in dismissing the negligence per se claim was
harmless. See Welch v. Gonic Realty Trust Co., 128 N.H. 532, 536 (1986).

With respect to its remaining arguments, the plaintiff contends that the
trial court’s narrative order and the documents included in its appendix provide a
sufficient record to decide the issues. We disagree. Each of the remaining
arguments contains factual components turning on the evidence offered at trial.
Absent a transcript, we cannot determine what evidence was offered at trial and
must assume that the evidence was sufficient to support the trial court’s
determinations. See Bean, 151 N.H. at 250. Furthermore, when the trial court
does not make explicit findings, we assume that it made the subsidiary findings
necessary to support its general findings. Nordic Inn Condo. Owners’ Assoc. v.
Ventullo, 151 N.H. 571, 586 (2004). We defer to the trial court’s judgment on
issues such as resolving conflicts in the testimony, assessing the credibility of
witnesses, and determining the weight to be given to the evidence, mindful that it
is free to accept or reject, in whole or in part, whatever evidence was submitted,
including the testimony of expert witnesses. Cook v. Sullivan, 149 N.H. 774, 780
(2003); see Webb v. Rye, 108 N.H. 147, 150 (1967) (stating nuisance is question
of fact). We find no errors of law in the trial court’s narrative order.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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