Smukler gives damage suit a twistr

The suit brought against the Laconia Motorcycle Week Association by two women, who are seeking damages for injuries they suffered when they were struck by a drunken biker during the 2004 rally, took an unforeseen twist in the in Belknap County Superior Court yesterday. In response to a motion to dismiss the claims, Justice Larry Smukler indicated that he disagreed with the theory underpinning the association's defense and was likely to instruct the jury accordingly.

Valerie Lennon and Denise Hugli, who were struck by a motorcycle ridden by Brett Phillips while walking alongside on Route 3 near FunSpot, charge that the accident, which claimed the life of Phillips's passenger — his ex-wife — was caused by the negligence, not only of Phillips but also of the association and the city. After pleading guilty to negligent homicide, Phillips is serving a prison sentence and his insurance carrier reached a settlement with Lennon and Hugli.

Originally attorneys Christopher Seufert and Robert McDaniel, representing Hugli and Lennon, brought suit against both the association and the city, claiming that they were engaged in a joint enterprise and obliged to protect their clients from "the dangerous environment" fostered by the motorcycle rally, to warn them of "dangerous conditions" and safeguard them from "foreseeable dangers." In August, Smukler quashed all claims against the city by ruling that it was entitled to immunity.

With that, the plaintiffs charged that liability for the alleged negligence rested with the association as the remaining partner to the joint enterprise.

Derek Lick, representing the association, built his defense on a theory of so-called "joint enterprise" that, in keeping with a decision of the New Hampshire Supreme Court, holds that in order to impute liability from one of the partners to the other "there must be not only a joint interest in the objects or purposes of the enterprise, but also an equal right to direct and govern the movements and conduct of each with respect thereto." In questioning witnesses throughout the trial Lick sought to demonstrate that while the association promotes the rally it possesses no control over the measures taken by the city to provide for public safety. Likewise, he argued that the association has no authority to regulate the sale and consumption of alcohol, which is the exclusive preserve of the New Hampshire State Liquor Commission.

When the plaintiffs rested their case yesterday afternoon Lick moved for a directed verdict, effectively asking Smukler to rule in favor of the association rather than put the case to the jury. He argued that the association had "zero control" over any of the factors that the plaintiffs claim contributed to the accident — lack of sidewalks, lighting or barriers along Route 3, adequate parking within easy reach of venues and the service of alcohol. "Absent joint control, there is no joint enterprise," Lick insisted. "There was no evidence that the city controlled any actions of the Association or that the Association controlled any action taken by the city."

Lick pointed out that when Smukler denied an earlier motion for summary judgment for the association and sent the case to trial he said that there was a genuine issue of material fact about the extent of the association's influence on the city's decisions. The trial, he insisted, produced "not a shred of evidence that the Association influenced the city's decisions with respect to anything of consequence in this case."

Disputing Lick's motion, Seufert said that he "misconstrued a joint venture, which required only two entities with a common purpose," and maintained that both the association and the city had a shared interest in expanding Motorcycle Week.

Smukler, however, said that he disagreed with both notions of "joint enterprise". Instead, he suggested that it was sufficient only that each party to a joint enterprise have the right to control or manage the venture — not to direct one another — in order to impute liability from one partner to the other. Under this interpretation, the question of liability would hinge not on whether the association directed the decisions of the city but instead on whether it controlled aspects of the rally.

Both Hugli and Lennon testified yesterday, telling the court about the nature of the accident and the extent of their injuries. Neither had ever attended Motorcycle Week before they decided to drive from Manchester to Laconia on the evening of Tuesday, June 15, 2004.

They said that they arrived at The Weirs, but found all the parking lots for four-wheeled vehicles full until they reached Funspot. After spending less than half-an-hour at Funspot, they set out on foot toward the head of Lakeside Avenue, about a mile away. The two women testified that they found no traffic control measures in place or police officers on patrol either along along Route 3 or at ground zero.

Between 7;30 p.m. and 8 p.m, after spending less than an hour at ground zero, the two began returning to their car at Funspot. They walked up Tower Street from Lakeside Avenue, then on to Route 3. Hugli testified that southbound motorcycle traffic on Route 3 was heavy, with "four or five bike riding abreast," and they "thought it would be safer to continue in the northbound lane because there was too much traffic to cross Route 3." Lennon concurred that "there was too much traffic, too heavy" and with no one directing traffic "I wouldn't cross the road without some kind of assistance."

Consequently, the women, with Hugli ten to 15 feet in the lead, walked northbound, with their backs to traffic. Questioned by Seufert, Hugli said they were "two arms lengths" from the travel lane and Lennon that they were anywhere from six inches to a foot from the edge of the pavement. They testified that they could not see the traffic coming from behind them and that the noise obscured the sound of approaching vehicles. Both told the court they saw no one walking on either side of Route 3 as they made their way toward Funspot.

"All of a sudden I heard a loud thump," said Hugli, who added that she saw Lennon thrown through the air. "My left hand felt like fire and I was bleeding."

She said that she saw "smoke and sparks" and "heard the sound of metal on asphalt." Hugli heard Lennon screaming her name and found her lying in the ditch between ten and 20 feet away, calling 911. Hugli testified that emergency services did not reach the scene for 20 or 30 and minutes when three ambulances transported Phillips, his wife and Lennon to Lakes Region General Hospital while she was taken by police cruiser.

Hugli's injuries to her left shoulder and arm have left her with pain, numbness and weakness in her shoulder, arm, elbow. wrist and hand from nerve damage that have puzzled a handful of physicians. Since the accident her medical bills have approached $30,000.

Lennon, whose sleep, she said, is broken by haunting memories of the accident, has undergone four surgeries to left leg and one to her left elbow, but testified that she is in pain "all the time." Her medical bills have topped $116,000.

When Lick cross-examined the women he questioned them about their decision to walk Route 3. "Was it a safe thing to do?" he asked Hugli, who answered "it was okay." Lennon replied "was it an ideal situation to walk in, no, but I didn't feel in any immediate danger."

To each Lick closed by asking if they considered Phillips responsible for their injuries. "No," Hugli said flatly. "Partial, equal," answered Lennon, who acknowledged that she herself bore "some" responsibility.

To end the day Lick opened the defense by calling former Police Chief Tom Oetinger to the stand. "We do everything we can to ensure the safety of the public," Oetinger said as he explained how the Police Department prepared for Motorcycle Week by marshaling adequate personnel from 20 or more other law enforcement agencies. "There is a lot that goes on outside of law enforcement," he added, referring to the emergency services provided by the Fire Department, the traffic management set up by the Department of Public Works and the licensing and planning of vendor sites undertaken by the Motorcycle Technical Review Committee.

Recalling that the plaintiffs referred to his charges that his budget for the rally was insufficient, Lick asked Oetinger if budget constraints compromised public safety. Oetinger replied that since 1995 or 1996 the rally has grown to a nine day event and drawn increasing numbers to more venues spread over a wider area. "We asked for more staffing," he said, explaining that "we plan for possibilities, not probabilities. Yes, I was critical of the city," he agreed.

But when Lick asked if the budget constraints put Hugli and Lennon at risk, Oetinger said "it was not a significant factor. He said that even with more personnel, "we would not have had a large police presence there, not between large venues."

As for barriers along Route 3, Oetinger said "it really wasn't something that we considered." He said that barriers would hinder access and egress to properties along the highway and in the event of an accident or breakdown cause traffic congestion and slow emergency vehicles.

Lick reminded Oetinger that his predecessor Bill Baker predicted that a sobriety checkpoint during Bike Week would find 75-percent of bikers over the legal limit. "I guess that would surprise me," Oetinger replied with a smile. He said that eight arrests for driving while intoxicated were made at a checkpoint on Route 3 this year.

As for the association, Oetinger declared that it had no control whatsoever over law enforcement during the rally. "If they have suggestions, it's something I would listen to, but ultimately it was my responsibility."

The trial concludes today with an expected cross-examination of Oetinger and testimony from City Manger Eileen Cabanel. Attorneys for both parties will then present their closing arguments.