2018-0425, Eileen Bloom v. Casella Construction, Inc.

30, 2013, the plaintiff drove to Dartmouth - Hitchcock Medical Center (DHMC) The record supports the following facts. On the morning of De cember

We affirm in part, reverse in part, and remand. to the plaintiff pursuant to Section 324A of the Restatement (Second) of Torts. defendant did not owe the plaintiff a duty of care and was not otherwise liable judgment to the defendant, Casella Construction, Inc. (Casella), rul ing that the appeals the order of the Superior Court (O’Neill, J.) granting summary HANTZ MARCONI, J. In this tort action, t he plaintiff, Eileen Bloom,

Suslak on the brief, and Mr. Suslak orally), for the defendant. Morrison Mahoney LLP, of Manchester (Joseph G. Yannetti and Brian A.

brief and orally), for the plaintiff. Shaughnessy Raiche, PLLC, of Bedford (Brian C. Shaughnessy on the

No. 2018 - 0425 Belknap

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by e - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

Hungerford v. Jones, 143 N.H. p. 2 208 (1998); and public policy. She also argues mutuality of interest between the plaintiff and DHMC; the rule set forth in She argues that there are several reasons why a duty exists in this case: summary judgment on the ground that the defendant owed her no duty of care. On appeal, the plaintiff asserts that the trial court erred in gra nting

reconsideration, and this appeal followed. defendant’s motion. Subsequently, the court denied the plaintiff’s motion for duty of care to the plaintiff. Following a hearing, the trial court granted the Casella moved for summary judgment on the ground that it owed no

injuries.” See RSA p. 2 281 - A:8 (2010). Hitchcock, since her employer enjoyed statutory immunity for workplace condition.” According to the plaintiff, “[n]o claim was made against Dartmouth negligent and careless in failing to maintain the premises in a reasonably safe intended purposes.” She alleged that Casella breached its duty and “was condition for those such as the plaintiff who used the premises fo r their “employ reasonable care to maintain the premises in a reasonably safe particular to treat accumulations of winter precipitation,” Casella had a duty to obligated to provide winter maintenance t o the parking lot in question, and in The plaintiff sued Casella, claiming that “[a]s an entity contractually

cleanup or as directed by DHMC Grounds Supervisor or his designee.” is app lied to parking lots prior to or at the start of a storm and after storm possible and accessible at the start of each shift change”; and “[g]enerally salt Supervisor or his designee”; “[e]mployee lots shall be kept plowed as clear as “shall apply salt and/or sand only as directed by the DHMC Grounds icing agent and during a storm to meet the objectives o f this plan”; Casella his designee”; “[s]a lt is applied. . . at the start of plowing operations as an anti assistance is asked and direction given by the DHMC Grounds Supervisor or guidelines stated that: “[s]alting and sanding will be done by DHMC unless the “Snow Plowing Guidelines” (guidelines) attached to the contract. The agreed “to coordinate with [DHMC] to provide all services in accordance with” services, including the equipment and labor for snow remo val services” and Agreement” with Casella (the contract) whereby Casella was to “provide certain At the time of the plaintiff’s accident, DHMC had a “Snow Plowing

injuries that required surgery. overnight in the parking lot. As a result of her fall, the plaintiff suffered inches the night before and some of the snow had melted and refrozen [or] ice melt applied to the lot,” despite that it had snowed “maybe” a couple of before she slipped and fell on ice. A ccording to the plaintiff, there was “no sand employee parking lot, exited the vehicle, and took approximately two steps in Lebanon, where she worked as a nurse. She parked her vehicle in an p. 3 3

oral argument that was not briefed). them. See State v. Mitchell, 166 N.H. 288, 292 (2014) (declini ng to address argument made at the defendant owed her a duty of care, we do not consider them because she has not briefed To the extent that, at oral argument, the plaintiff discussed other legal theories to establish that 1

DHMC’s underlying intent, the re is no indication that Casella was aware that a was to protect its employees from workplace injuries,” and, “even if that was “nothing in the plain language of the Contract indicates that DHMC’s intent plai ntiff’s “m utuality of interests” argument. As the trial court reasoned, We agree with the defendant that t he trial court properl y rejected the

claims of implied privity were properly rejected by the Trial Court.” her ‘mutuality of interests’ argument must fail as a matter of law, and any that “[a]bsent any evidence of intent to benefit thi rd parties like [the plaintiff], concept of legal privity as between employer and employee.” Casella counter s given this “mutuality of concern, . . . it is not fair to completely disown the “economic interest is avoidance of t he costs of on - the - job injuries” — and that workplace injuries” — her interest being “the avoidance of injury” and DHMC’s an employee of DHMC, she and DHMC “have a mutual interest in avoiding is not in privity of contract with Casella. Rather, t he plaintiff asserts that, as was not a party to the contract between DHMC and Casella, it follows that she contract with one another. Id. Because there is no dispute that the plaintiff relationship, ordinarily the scope of the duty is limited to those in privity of v. Jankowski, 148 N.H. 50 p. 3 3, 505 (2002). While a contract may supp ly the duty.” A duty generally arises out of a relationship between the parties. Sisson employer and establish a relationship of privity warranting the imposition of a between [her] and her employer for the plaintiff to stand in the shoes of her T he plaintiff first argues that “[t]here was sufficient mutuality of interests

p. 3 375. Whether a duty exists in a particular case is a question of law. Id. 146, 149 (2014). Absent a duty, there is no negligence. Christen, 170 N.H. at the breach proximately caused injury to her. See Lahm v. Farrington, 166 N.H. defendant owes a duty to her, that the defendant breached that duty, and that To recover for negligence, the plaintiff must dem onstrate that the

of the law to the facts de novo. Id. Shows, Inc., 170 N.H. p. 3 372, 375 (2017). We review the trial court’s application moving party is entitled to judgment as a matter of law. Christen v. Fiesta review of the ev idence discloses no genuine issue of material fact and the College, 160 N.H. 452, 455 (2010). We affirm a trial court’s decision if our favorable to the nonmoving party. See Sabinson v. Trustees of Dartmouth consider the evidence, and inferences properly drawn from it, in the light most In reviewing a trial court’s ruling on a motion for summary judg ment, we

these circumstances. We address these in turn. 1 that Section p. 3 32 p. 4 4A of the Restatement (Second) of Torts provides for liability in 4

Hungerford is inapplicable under the circumstances presented in this case. the existence of such a risk, we affirm the trial court’s conclusion that N.H. at 211. Given that there is no evidence in t he record before us to support posed a risk of outsized harm sufficient to create a duty. See Hungerford, 1 p. 4 43 the Hungerford analysis relied on a determination that the negligent activity unreasonably dangerous conduct, such is not the whole of the inquiry. Rather, with the defendant that its snowplowing services do not constitute harm to others” and that was not the intent of Hungerford. Although w e agree nearly any activity, if carelessly performed, could pose a for eseeable risk of danger in the activity itself. As the court noted, “by the plaintiff’s definition, harm posed by the careless performance of an activity, and not the inherent rejected the plaintiff’s assertio n that the inquiry should focu s on the risk of “unreasonably dangerous” conduct, Hungerford does not apply. The trial court counters that because its snow removal services did not constitute surfaces and pathways which should have been safely treated.” Casella unreasonably dangerous to the pedestrians who will later need to negotia te the that the relevant inquiry would be whether careless snow removal is The plaintiff asserts that, “[a]pplying Hungerford to this case, it is clear

lack of professional qualification. Id. techniques not generally accepted in the mental health community, or from when the publicized misdiagnosis results either from use of psychological the accusation. Id. at 215. The duty of care to the accused parent is breached recommendation, or instruction of the therapist, takes pu blic action concerning sexual abuse where the therapist or the patient, acting on the encouragement, parent a duty of care in the diagnosis and treatment of an adult patient for Hungerford, 1 p. 4 43 N.H. at 211. Thu s, we held that a therapist owes an accused whose likelihood and magnitude make the conduct unreasonably dangerous.” those foreseeably endangered by their conduct with respect to those risks fort h in Hungerford. In Hungerford, we recognized that “parties owe a duty to The plaintiff argues, nonetheless, that a duty exists under the rule set

performance” (quotation omitted)). where the promisee intends to give the beneficiary the benefit of the promised “benefit to a third party is a ‘motivating cause’ of entering into a contract only Trustees of Dartmouth College, 161 N.H. 68 p. 5 5, 697 - 98 (2011) (explaining that a party beneficiary” (quotation, brackets, and ellipsis omitted)); Brooks v. the contract,” and noting that “a promisor owes [a duty] to an intended third contemplated by the promisee as one of the motivating causes of his making as to give the promisor reason to know that a benefit to a third party is that “a third - party beneficiary relationship exists if the contract is so expressed Spherex, Inc. v. Alexander Grant & Co., 122 N.H. 898, 903 (1982) (explaining to impose liability on Casella for injury to third party beneficiaries.” See benefit to third parties was contemplated by DHMC, which would be required 5

evidence in the record that anything Casella did increase d the risk of harm court that subsections (a) and (c) do not apply in this case. There is no Restatement (Second) of Torts § 324A, at 142 (196 p. 5 5). We agree with the trial

the third person upon the undertaking. (c) the harm is suffered because of reliance of the other or

the third person, or (b) he has undertaken to perform a duty owed by the other to

of such harm, or (a) his failure to exercise reasonable care increases the risk

exercise reasonable care to protect his undertaking, if the third person for physical harm resulting from his failure to protection of a third person or his things, is subject to liability to services to another which he should recognize as necessary for the One who undertakes, gratuitously or for consideration, to render

Section 324A provides:

N.H. 210, 213 - 14 (1970). O’Brien, 140 N.H. p. 5 595, 599 - 600 (1995); Corson v. Liberty Mut. Ins. Co., 110 VanDeMark v. McDonald’s Corp., 153 N.H. 753, 757 (2006); Williams v. N.H. 203, 211 (2018); E ver itt v. Gen. Elec. Co., 159 N.H. 232, 23 7 - 3 8 (2009); these circumst ances. See, e.g., Grady v. Jones Lang LaSalle Constr. Co., 171 and conclude that it is consistent with our analysis of whether liability exists in referenced Section 324A of the Restatement (Second) of Torts in several cases Second Restatement of Torts, Section 324A.” (Capitalization omitted.) We have Finally, the plaintiff argues that “liability in this case is supported by the

failure t o provide any legal authority to support her position. arguments unavailing and decline to address them in detail given the plaintiff’s (Supp. 2018). (Capitalization omitted.) Like t he trial court, we find these framework for ‘Limited Liability for Winter Maintenance’” under RSA p. 5 508:22 argues that the defendant’s position “subverts the New Hampshire statutory the justice of compensation.” (Capitalization omitted.) In addition, the plaintiff deterrence imposed by the law of negligence and frees the blameworthy from limit Casella’s liability, because that reasoning “diminishes the natural “Casella’s appeal to DHMC’s ‘freedom to hire’ is not [a] persuasive” reason to rates,” which “should be disfavored as a matter of policy.” She also argues that carrier . . . fr om replenishing itself, and place upward pressure on the carrier’s third - party contractor, the law would prevent the workers’ compensation (Capitalization omitted.) She asserts that “[i]n barring [her] action again st the she contends “support the finding of a relationship adequate to impose a duty.” Next, the plaintiff raises a policy argument citing “external elements” t hat p. 6 6

the winter plowing season, “the ground supervisor would work with the snow removal at the hospital stated in his deposition that, at the beginning of Supervisor or his designee.” T he DHMC employee responsible for o verseei ng unless assistance is asked and direction given by the DHMC Grounds According to those guidelines, “[s]alting and sanding will be done by DHMC that Casella agreed to provide all services in accordance with the guidelines. precludes the entry of summary judgment. The evidence in the record shows where the plaintiff was injured raises a genuine issue of material fact which Whether DHMC directed Casella to apply sand and salt to the parking lot

that duty”). plaintiff a duty of care has delegated to the defendant any particular part of (stating that “[s] ubsection (b) comes into play as long as the party who owes the National Loss C ontrol Service Corp., 73 p. 6 6 F.2d 1055, 1062 - 63 (5th Cir. 1984) primary responsibility for services upon which third parties depend”); Canipe v. “is reasonable to place liability upon a party who has clearly undertaken App. 1995) (explaining that “the apparent rationale behind § 324A(b)” is that it Torts § 324A(b); see Plank v. Union Elec. Co., 899 S.W.2d 129, 131 (Mo. Ct. to perform a duty owed by” DHMC to the plaintiff. Restatement (Second) of for specific areas of DHMC’s property. In doing so, the defendant “under[took] undisputed that Casella contracted with DHMC to render snowplowing services keep its property free from unreasonable risks of harm, we disagree. Here, it is subsection (b) because Casella did not assume DHMC’s entire responsibility to To the extent the trial court reasoned that there is no dut y under

(Record citation omitted.)

contemplated by subsection (b). Casella did not completely assume DHMC’s duty to the plaintiff, as property between visits. Based on this evidence, it is clear that winter weather event, nor was it expected to inspect the DHMC Further, Casella was not expected to “spontaneously” respond to a solely responsible for sandi ng and / or salting the premises. and/or salt to the extent directed by DHMC, otherwise DHMC was snow in certain designated areas and was only to apply sand Contract is clear that Casella was only responsible for clearing property free from unreasonable risks of harm. I n fact, the “completely subsume or supplant” DHMC’s duty to keep its [t]he evidence in the record establishes tha t Casella did not

Casella owed her a duty, reasoning that As to subsection (b), the trial court rejected the plaintiff’s assertion that

undertaking. that her injury occurred because she or DHMC relied upon Casella’s presented by the existing weather co nditions, and the plaintiff did not allege p. 7 7

HICKS and DONOVAN, JJ., concurred.

for further proceedings consistent with this decision. Accordingly, we r everse the entry of summary judgment to Casella and remand exists about the scope of Casella’s undertaking for purposes of subsection (b). light most favorable to the plaintiff, we conclude that an issue of material fact DHMC was responsible for sanding and salting,” viewing the evidence in the between [it] and DHMC . . . Casella was responsible for snow removal and Thus, although Casella asserts that under “the division of responsibilities

would automatically sand and salt as part of that job. sanding and salting,” an d that during a snowstorm, the snowplow contractor contractor so that they understood what parts they were responsible for