Steven Grady v. Jones Lang Lasalle Construction Company, Inc. et al.

I.

Whether a duty exists in a particular case is a question of law. Carignan

v. New Hampshire Intern. Speedway, Inc., 151 N.H. 409, 412 (2004). This

Court reviews such questions de novo. Id. Where the legal issue is presented in the context of an underlying case that was dismissed on summary judgment, any factual or evidentiary matters must be viewed in the light most favorable to

the plaintiff. Beckles v. Madden, 160 N.H. 118 (2010).

This case arises out of a construction site accident which occurred on February 21, 2013 in Dover, New Hampshire. App. at 254. In the incident, plaintiff Steven Grady (“Grady”), who was 30 years old at the time, sustained serious burn injuries to his right hand. App. at 203. Grady’s injury required an eight-day admission to Massachusetts General Hospital and multiple surgeries

in the ensuing years. Id.

The underlying project involved extensive renovations to a commercial office building in Dover, New Hampshire, which is owned and occupied by defendant Liberty Mutual Insurance Company (“Liberty Mutual”). App. at 254. The general contractor which Liberty Mutual engaged for the $2.6 million renovation project was defendant Jones Lang LaSalle (“JLL”). Id., see also App. at 85. JLL elected to subcontract the roofing work to A&M Roofing Services LLC (“A&M”), who is not a party to the action. App. at 96. The subcontract price for the roofing work was $86, 500. Id. At the time of the incident, Grady was

employed as a roofer for A&M. App. at 204.

Several elaborate contracts promulgated by the American Institute of Architects (“AIA”) were executed in connection with the project. App. at 1-119. Consistent with the traditional role of a general contractor, JLL assumed the entire responsibility for all aspects of the project. App. at 16, §3.2.5, §3.3.1. JLL buttressed its general pledge of responsibility for the entire project by

assuming several specific responsibilities: e JLL promised to supervise all work of its subcontractors (Id.);

e JLL promised to initiate, supervise and maintain all safety precautions and programs (App. at 37, §10.1);

e JLL agreed to take reasonably precautions for safety of workers and others who might be affected by the work, whether under the control of JLL, its subcontractors, or its sub-subcontractors (App. at 37, §10.2.1);

e JLL assumed responsibility for all tools, equipment, materials and supplies of subcontractors (App. at 16, §3.2.5);

e JLL specified that its supervision of subcontractors would be full- time, and that its personnel would be on site whenever work was being performed (App. at 26, §5.3.4; App. at 19, §3.9.1); and

e JLL promised to maintain adequate fire extinguishers at the jobsite. App. at 38, §10.2.11.

JLL may assert that after assuming the above responsibilities, it then sought to delegate certain of its obligations its subcontractor, A&M. App. at 96- 119. Even assuming that those responsibilities were delegable, it is significant to note that the subcontract specifies that JLL would retain an active role in

the roofing operations in several important areas. Those include:

e that the roofers would be permitted to use JLL’s tools (App. at 102, §11.4);

e that JLL reserved the right to expel any A&M workers who refused to wear hard hats or otherwise adhere to the safety rules of JLL and OSHA (App. at 111, §33);

e that the entirety of the AIA contracts (in which JLL assumed sweeping responsibilities) would be expressly incorporated into the subcontract with A&M (App. at 98, §3.1);

e that JLL would supply the roofers with heat, toilets, power, water, and dumpsters (App. at 111, §40; App. at 112, §59(c)).

The incident occurred on a frigid and windy February day when Grady and other A&M workers were installing rubber membrane material on the roof of the Liberty Mutual building. App. at 120. The process involved the

application of certain solvents to adhere new membrane over the existing

material, and required that the existing surface be clean and dry. App. at 158- 164. The solvents in question are highly flammable. Not having been provided with protective gloves, Grady was wearing ordinary winter gloves, which presumably had become soaked with flammable solvent. App. at 120. While Grady was attempting to use an ordinary cigarette lighter - a commercial “striker” was not available — to light a propane torch to melt snow and ice on the existing roof, and to dry the surface, a gust of wind caused his gloves to catch fire. Id. Fire extinguishers were not available so an A&M coworker attempted to douse the flames by thrusting Grady’s hands into a nearby bank

of snow that had accumulated on the roof. Id.

Grady sought benefits under the workers’ compensation system in an action that was handled by separate counsel. Given that New Hampshire law recognizes the right of an injured worker to also seek redress via an action in tort, Grady then filed - through present counsel — the instant “third party” action. See RSA 281-A:13. Suit was filed against the general contractor, JLL,

and the building owner, Liberty Mutual. App. at 254.

In the early course of the proceedings, the plaintiff specified certain acts, practices, and omissions which, together with the general lack of project

supervision, contributed to the injury. These included:

° the determination to proceed with roofing operations on a cold and windy February day (App. at 205-206);

° the determination to proceed with roofing operations when the applicable work areas were partially covered by snow and ice (App. at 205-206);

° the determination to use commercial flame torches to melt snow and ice and to dry the existing roofing material (App. at 205-206);

° the determination to use commercial flame torches in the context of windy conditions and highly flammable roofing solvents (App. at 205-206);

° the failure to provide proper protective clothing (particularly fireproof and solvent-proof gloves) (App. at 205-206);

° the failure to provide a proper “striker” to light the commercial torch (App. at 205-206) (a striker has a long handle whereas an ordinary cigarette lighter requires the worker’s hand to be dangerously close to the flame); and

° the fact that proper fire extinguishing equipment was not provided (App. at 205-206).

The plaintiff also alleged that Liberty Mutual had made a conscious decision, in the context of a construction contract that was signed late in 2012, to encourage that hazardous operations press ahead during the frigid winter months, a provision which required Liberty Mutual to pay an additional “winter

conditions” surcharge of $25, 000. App. at 90.

At an early stage in the proceedings, counsel for the defendants informed counsel for the plaintiff that he intended to seek dismissal on the grounds that the defendants owed no duty to the plaintiff as a matter of law. Accordingly, the parties mutually agreed to defer most of the discovery and expert disclosures until after the Court had ruled on defendants’ dispositive motions. With the above in mind, the stage of expert disclosure and discovery was never reached, and only limited fact discovery — Grady’s interrogatories and deposition — has

occurred beyond the initial automatic disclosures.

The dispositive motion filed by defendants argued that, as a matter of law, neither a general contractor nor a property owner owes a duty of care to the employee of a subcontractor injured on the jobsite. By Notice of Decision dated May 30, 2017, the trial court adopted the defendants’ position and granted its motion. Because the trial court held that no duty exists as a matter of law, it ruled that any factual questions (such as whether JLL knew that improper methods and equipment were being used, whether JLL knew of the lack of safety equipment, whether JLL knew of the dangers of roofing in winter conditions, etc.) were irrelevant. Having so ruled, the trial court proceeded to

dismiss the plaintiff’s case in its entirety. This appeal followed.

This Court’s decision in Butler v. King, 99 N.H. 150 (1954) explicitly

holds that a general contractor owes a duty of care to employees of subcontractors at work on the jobsite. Because the circumstances in the present case are legally indistinguishable from those in Butler, it was error for the trial court to conclude that JLL did not owe any duty of care to a worker in the position of Grady. Even if this Court were to conduct a review independent of Butler, the same result would obtain, as both legal and policy considerations militate strongly in favor of a general contractor retaining a duty of care toward all individuals on its project site. Likewise, in regard to the case against defendant Liberty Mutual, because the winter roofing work in question was recognized to be inherently dangerous, and because Liberty Mutual is a

commercial property owner, Liberty Mutual has a non-delegable duty to individuals in Grady’s position. As such, it was error for the trial court to dismiss the case against Liberty Mutual. The trial court’s order on summary

judgment should be reversed in both respects.

More specifically, they argue that Butler makes a critical distinction between a case where the general contractor creates a physical hazard as opposed to situations in which the general contractor is charged with negligently failing to

supervise the practices and procedures underway at its jobsite. The defendants

understand Butler to have held that it is only in the former scenario that the general contractor would owe a duty to the employee of its subcontractor, and that no general contractor duty would exist in the latter scenario. The trial

court adopted defendants’ assertion in both respects.

The problem is that Butler supports neither the factual nor the legal proposition ascribed to it by the defendants and the trial court. There is no indication whatsoever that the Butler Court was interested in any possible distinction between a general contractor’s construction activities and its responsibility to supervise the jobsite. The underlying injury in Butler occurred when an employee of a painting contractor fell through a porch railing in the context of a hotel renovation project. Butler, 99 N.H. at 150. Contrary to the description vigorously advanced in the defendants’ papers, Butler does not state that “the general contractor had installed the railing in question” (see Defendants’ Reply Memorandum, App. at 246)(emphasis in defendants’ original). The trial court somehow adopted the same mischaracterization of Butler. See Order at 6 (erroneously stating that porch railing had been

“installed by the general contractor’).

In fact, the plaintiff in Butler did not even allege that the railing in question was a new installation — on the contrary, it was agreed that the railing in question was a porch railing that was in existence before the hotel renovation project even began. Id. at 151. What the plaintiff in Butler did allege was that the railing in question was in “a dangerous condition” due to the

negligence of the general contractor. Id. at 150-151. While it does appear that one of the plaintiff's arguments was that the railing’s insecure condition was caused by other work undertaken by the general contractor (the general contractor had replaced posts in that same area of the porch), there was evidence that the general contractor never disturbed the portion of the railing that collapsed and caused the plaintiff’s fall. Id. at 151. In any event, in terms of evaluating the underlying existence of a legal duty, there is no indication that the Butler Court was concerned with any possible distinction between a general contractor’s construction activities and its supervisory activities — it found that a general contractor duty exists in the context of a basic allegation that a “dangerous condition” was allowed to exist on the jobsite. Id. at 150-151. If anything, in describing the general contractor’s duty as the responsibility “to maintain reasonable conditions of safety” at the jobsite, Butler strongly suggests that the Court considered the duty of the general contractor to include the general oversight of jobsite safety, and did not see the duty as being limited to situations in which the general contractor created some physical hazard. Again, the inescapable conclusion is that Butler alone compels reversal

of the trial court’s ruling.

This Court has long held that a duty of care can arise from the

relationship of the parties. Sintros v. Haman, 148 N.H. 478 (2002). Likewise, a

duty of care can be assumed by a party. Walls v. Oxford Management Co., 137 N.H. 653 (1993); Carignan v. New Hampshire Intern. Speedway, Inc., 151 N.H.

409, 412 (2004). In the particular context of construction site dynamics, some courts have simply concluded that the general contractor assumes a duty of care by virtue of the leadership role it undertakes in regard to the project. See,

e.g., Ryan v. TCI Architects/Engineers/Contractors, Inc., 72 N.E.3d 908 (Ind.

2017). The Ryan court evaluated the specific question herein presented, holding simply that the general contractor assumes a duty of care in the specific context of injury claims brought by employees of subcontractors

injured on the jobsite. Id; see also Alloway v. Bradlees, Inc, 157 N.J. 221

(1999); Afoa v. Port of Seattle, 296 P.3d 800 (Wash. 2013); Gerasi v. Gilbane

Building Co., 75 N.E.3d 305 (Ill. 2017); Yeats v. Polygon Northwest Co., 379

P.3d 445 (Ore. 2016); Shannon v. Howard S. Wright Constr. Co., 181 Mont.

269 (1979).

From a philosophical standpoint, it hardly seems outlandish to suggest that a general contractor should retain basic tort duties in regard to the construction project it is presiding over. After all, as the seminal authority on workplace safety, OSHA reaches this same conclusion - a general contractor may delegate certain responsibilities to subcontractors, but the general contractor nevertheless retains joint responsibility for jobsite safety. See 29 C.F.R. §1926.16. It also bears mentioning that a rather stark contrast appears to exist between the scenario in Grady - a rather direct relationship between a general contractor and the workers on its site - and the very attenuated factual scenarios in which this Court has found no duty to exist. Cf. Macie v. Helms, 156 N.H. 222 (2007) (traffic light repairman, injured while repairing

traffic signal, attempts to sue motorist who had originally broken the signal

during an entirely separate incident); England v. Brianas, 166 N.H. 369 (2014) (homeowner who had contentious relationship with her ex-boyfriend did not owe duty to houseguest who was stabbed after ex-boyfriend broke into homeowner’s residence). In short, a review of the rather unusual cases in which this Court has found that no duty exists provides no support for the proposition that a duty does not exist in the very basic jobsite setting at issue

in both the present case and Butler.

It also bears mentioning that in addition to applying a flawed legal analysis, the trial court inaccurately describes Grady’s claim as being limited to an allegation that he was supplied with improper tools. See Order at 12. While it is certainly true that Grady has alleged that he was not provided with proper tools and equipment, the trial court’s description overlooks the fact that Grady has clearly alleged negligence in regard to many other areas - the supervision of the jobsite in general, the decision to proceed with rooftop work under the weather conditions existing on the morning in question, the decision to proceed with rooftop work when the work surface was partially covered by snow and

ice, etc.

Perhaps more fundamentally, the trial court also fails to recognize that supervision is a very unique task which a supervisor cannot delegate to the entity supposedly under supervision. In connection with this extensive project, one of the many responsibilities which JLL promised to assume is the supervision of subcontractors in the position of A&M. Importantly, JLL did not just assume the responsibility to supervise the employees of subcontractors — it promised to supervise the subcontractors themselves. In an effort to evade jury review of whether it met that responsibility in the present case, JLL argued — and the trial court held —- that JLL could discharge that responsibility by simply delegating the supervision of the roofing subcontractor, A&M, to A&M itself. But this determination is analytically unsound — especially in the context of a large construction project in which both the building owner and the general contractor had recognized the need to supervise subcontractors, it is nonsensical to suggest that the supervisor can delegate the supervision of A&M to A&M itself. Such an act does not constitute a delegation of supervision, but

rather an elimination of supervision.

Section 324A of the Restatement of Torts (Second) presents yet another avenue of analysis, and once again gives rise to the same conclusion that a general contractor does owe a duty of care to employees of subcontractors. As a preliminary matter, it would appear that this Court has never specifically

considered Section 324A of the Restatement of Torts (Second). However, the New Hampshire Supreme Court has traditionally looked favorably upon the

Restatement of Torts. See, e.g., Buttrick v. Arthur Lessard & Sons, Inc., 110 N.H. 36 (1969) (adopting strict product liability in tort under Section 402A). Furthermore, this Court has formally adopted the Restatement position in at least one related area involving tort liability in the context of independent

contractor relationships. See Valenti v. NET Properties Management, Inc., 142 N.H. 633 (1998)(holding that business operators are vicariously liable for the torts of their independent contractors and specifically adopting Section 425 of the Restatement). Accordingly, it seems clear that this Court would adopt Section 324A of the Restatement, and the trial court likewise proceeded on this

assumption.

Section 324A provides as follows: Liability to Third Person for Negligent Performance of Undertaking

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

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

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

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

In Handler Corp. v. Tlapechco, 901 A.2d 737 (Del. 2006), the Delaware

Supreme Court construed Section 324A of the Restatement in the specific context presented in the case at bar — that of a general contractor denying a legal duty to employees of subcontractors on its jobsite. Based on Section 324A, Handler held that the general contractor did owe a duty to the plaintiff, who was an employee of a painting subcontractor on a residential jobsite, and thus that the plaintiff could maintain suit against the general contractor. Id. at

747 (also citing Restatement (Second) Torts §414).

For Section 324A to apply, the defendant in question must have undertaken to render services as referenced in the preliminary language, and then at least one of the three ensuing conditions must apply. In the context of the present case, it is clear that the preliminary language is met, because there is no dispute that JLL contracted to render services, including those involving the safety of, and supervision over, the subject jobsite. JLL’s contract

provisions include the following:

° “The Contractor assumes the entire responsibility and liability for all Work including all supervision, labor and materials provided, whether or not erected or in place, and for all plant, scaffolding, tools, equipment, supplies and other things provided by the Contractor, its Subcontractors and Sub-subcontractors.” App. at 16, §3.2.5.

° “, .. the Contractor shall be responsible and shall indemnify and hold harmless the Owner in respect of any loss or damage to the Work arising out of or caused by any negligent act or omission of the Contractor or Subcontractor or by anyone for whose acts it may be liable during the terms of the Contract Documents”. Id.

° “The Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention.” App. at 16, §3.3.1.

° “The Contractor shall be responsible to the Owner for acts and omissions of the Contractor’s employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for, or on behalf of, the Contractor or any of its Subcontractors.” App. at 16, §3.3.3.

° “The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract.” App. at 37, §10.1.

° “The Contractor shall be fully responsible for full time supervision of all Subcontractors and Sub-subcontractors and for the acts, errors, omissions, defaults, and conduct of all Subcontractors and Sub-subcontractors”. App. at 26, §5.3.4.

° “The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work.” App. at 19, §3.9.1; Cf. Grady testimony that he never saw any JLL personnel at the jobsite App. at 145.

As noted above, for Section 324A to apply, in addition to the preliminary consideration, at least one of the three additional circumstances must apply. While it appears that all three apply in this case, it also bears mentioning that to the extent some of the Section 324A analysis may be fact-dependent, a dispositive motion should not have been granted while discovery was still open

in the underlying case.

Section 324A (a) is based on an increase in the risk of harm. In the present case, it is clear that JLL’s conduct did increase the risk of harm to the

plaintiff in several ways:

° JLL promised to maintain adequate fire extinguishers at the jobsite (App. at 38, §10.2.11), and plaintiff has alleged than his injuries were exacerbated by the absence of available fire extinguishers (App. at 205-206);

° JLL assumed responsibility for all tools, equipment, materials and supplies of subcontractors (App. at 16, §3.2.5), yet the plaintiff has alleged that proper equipment and tools (to include fireproof gloves, a striker, etc.) were not provided (App. at 205-206);

° JLL promised to initiate, supervise and maintain all safety precautions and programs, (App. at 37, §10.1), yet the plaintiff has alleged that proper safety precautions were not maintained (App. at 205-206); and

° JLL specified that its supervision of subcontractors would be full- time, and that its personnel would be on site whenever work was being performed (App. at 26, §5.3.4; App. at 19, §3.9.1), yet the plaintiff has alleged that JLL did not supervise A&M, was not on site full-time as promised, and was not on-site when the work in question was being performed (App. at 145).

In fairness, some would argue that a failure of supervision does not increase the risk of harm — it merely fails to decrease the risk of harm. But at least in the context of the supervision of ongoing construction work at a jobsite, this again ignores the unique nature of the task of supervision as discussed above — if subcontractors can sense that the general contractor is not committed to jobsite safety, the range and extent of unsafe practices will often proliferate in that climate. In this regard, it is important to note that one of Grady’s specific contentions is that rooftop work should not have been allowed to proceed on this windy, frigid day in which accumulations of snow and ice were covering parts of the existing membrane. In short, it is clear that Grady

has set forth a viable claim for increased risk under Section 324A (a).

Section 324A (b) applies to the situation in which the general contractor is providing services on behalf of an entity which itself owes a duty. For the reasons discussed in the ensuing section, it is clear that Liberty Mutual, having paid a surcharge for inherently dangerous roofing work to press ahead

during winter conditions, thus incurred a non-delegable duty to workers on its premises. See Elliott v. Public Service Co. of New Hampshire, 128 N.H. 676

(1986). Accordingly, the plaintiff would also prevail under the second prong of

Section 324A.

Section 324A (c) is based on reliance. In the context of the present case, Grady has clearly alleged that he understood JLL and Liberty Mutual to be in charge of overall jobsite safety. App. at 205-206. Further, Grady has identified a number of JLL and Liberty Mutual transgressions that he believes contributed to his injury, including their inadvisable determination to allow rooftop construction work on a frigid day when some of the surfaces were covered with snow and ice, their failure to ensure that proper tools and materials were being used, etc. Id. Given the above, it is clear that Grady has

met the reliance requirement of Section 324A (c).

In light of the above, Grady respectfully submits that this Court should reach the same conclusion as did its Delaware counterpart in Handler, and hold that Section 324A of the Restatement gives rise to a general contractor

duty toward employees of subcontractors on its jobsite. Handler Corp. v. Tlapechco, 901 A.2d 737 (Del. 2006).

In its summary judgement papers, the defendants sought to place significant emphasis on the inapposite question of Rounds and the exclusivity

provisions of the worker’s compensation bar. While it does not appear that the provisions of the worker’s compensation bar. While it does not appear that the trial court relied on those considerations in its grant of summary judgment, the

plaintiff will nevertheless address the issue.

The worker’s compensation bar precludes an injured worker in Grady’s position from bringing suit against his employer, regardless of the employer’s potential degree of negligence. See RSA 281-A:8. The bar applies not only to the employer itself, but also to all of the individual’s coworkers. See RSA 281- A:8(I)(b). However, the worker’s compensation statute expressly permits the injured worker to bring suit against potentially responsible third parties, as

Grady did here. See RSA 281-A:13; see also P. Salafia, New Hampshire

Workers' Compensation Manual § 12 (3d ed. 2008). Such suits are not just

permitted, but quite frankly are encouraged so that financial responsibility is ultimately borne by the party truly at fault - unlike the tort system, the worker’s compensation system is a no-fault system — and the worker’s compensation carrier can then be reimbursed from the tort recovery. See, e.g., RSA 281-A:13(I)(b) (employer lien on third party recovery). Third party tort claims are extremely common - Attorney Salafia’s treatise devotes an entire

chapter to the subject of these claims. P. Salafia, New Hampshire Workers'

Compensation Manual § 12 (3d ed. 2008).

Consistent with the above, this Court has reviewed many cases involving individuals who, like the plaintiff herein, recovered benefits under the worker’s compensation system and subsequently pursued a third-party action in tort.

See Butler, 99 N.H. 150 (third party action by employee of painting Gelinas v. Sterling Indus. Corp., 139 N.H. 14 (1994) (third party action

involving worker at construction site who was killed while operating post-

pounding machine); Tarr v Republic Corp., 116 N.H. 99 (1976) (third-party

action arising out of fire and explosion at plant which builds fiberglass boats);

Lupa v. Jensen, 123 N.H. 644 (1983) (third party motor vehicle action where

plaintiff was operating an automobile in the course of his employment);

Chambers v. Geiger, 133 N.H. 149 (1990) (third party action on behalf of

worker in toll booth kiosk who was injured when motorist struck toll booth);

Lakin v. Daniel Marr & Son Co., 126 N.H. 730 (1985) (third party action on

behalf of employee of one subcontractor at power plant who was injured due to negligence of another subcontractor at same site). In the context of the present case, the simple takeaway is that while Grady is not permitted to bring suit against either A&M or its employees, he is expressly permitted to bring a tort suit against any third parties whose negligence may have contributed to the injury.

Against the legal backdrop outlined above, the defendants devoted significant time and attention to the inapposite references, in the Rounds line of cases, to the effect that the duty to provide a safe workplace is nondelegable and rests exclusively with the employer. App. at 226; see also Rounds v. Standex Intern., 131 N.H. 71 (1988). There are at least two reasons why that

argument has no bearing on the issue currently before this Court. First, the Rounds line of cases — and the rules of law set forth therein — all arose during a period of legal turmoil when this Court was struggling to judicially define the period of legal turmoil when this Court was struggling to judicially define the scope of the worker’s compensation bar. But shortly thereafter, the legislature clarified the scope of employer immunity, and this entire line of cases has since

been either expressly or impliedly overruled. See Estabrook v. American Hoist

& Derrick, Inc., 127 N.H. 162 (1985), overruled by Young v. Prevue Products,

Inc., 130 N.H. 84 (1987); see also Thompson v. Forest, 136 N.H. 215 (1992),

questioning Rounds and Tyler v. Fuller, 132 N.H. 690 (1990).

The other reason why the defendants’ references to Rounds are misplaced is that even if it could somehow be argued that the Rounds cases retain any ongoing validity regarding the scope of the workers’ compensation

bar, these cases were never intended to have any application outside of the

immediate employer/employee relationship. See, e.g., Leeman v. Boylan, 134 N.H. 230 (1991). Not only is this conclusion clearly conveyed in the decisions, it is compelled by the concurrent existence of third party tort rights during this

same period of time as noted above in Butler, Gelinas, Tarr, Lupa, Chambers,

Lakin, etc. In other words, if the duty of workplace safety truly rested with the employer “exclusively, ” then the whole category of third-party tort suits would have been eviscerated. In short, there was never any intention that the Rounds cases would have any application whatsoever in somehow insulating third- party tort defendants as the defendants suggest. Indeed, it does not appear that a single decision of this Court has ever suggested, even during the time when the Rounds cases retained some modicum of precedential value, that these so-called “exclusivity” provisions could inure to the benefit of a third- exclusivity provisions of the worker’s compensation statute nor the Rounds line

of cases has any application to the instant appeal.

The trial court also erred in determining that Liberty Mutual, the owner and occupier of the building, owed no duty to Grady. Two independent theories support a duty of care on the part of Liberty Mutual. First, as noted above, this Court has long recognized that in the case of inherently dangerous construction activities, the owner/occupier retains a duty to workers at the site notwithstanding their status as employees of an independent contractor. Elliott

v. Public Service Co. of New Hampshire, 128 N.H. 676 (1986). Grady has

alleged that, at least during the frigid conditions presented by a New Hampshire winter, roofing work is inherently dangerous. He has further alleged that the parties recognized this phenomenon, thus giving rise to JLL requesting — and Liberty Mutual agreeing to —- a $25, 000 surcharge in the contract price. App. at 90. In any event, whether a particular activity is inherently dangerous is a question of fact for the jury. Elliott, 128 N.H. at 682. As such, it was error for the trial court to grant summary judgment as to the

case against Liberty Mutual.

The defendants have argued that this argument is unavailable to Grady, as he has agreed in deposition testimony that roofing work is not inherently

dangerous activity. This is not exactly accurate, as the question posed to Grady was not whether roofing work is “inherently” dangerous, but rather whether such work is “unreasonably dangerous”. Appendix at 180. This is not just semantics — there is a difference between an activity that is inherently or intrinsically dangerous and one that is unreasonably dangerous. But more fundamentally, the defendants would presumably agree that a plaintiff’s subjective characterization of an activity is not dispositive of the issue. Again, whether a particular activity is inherently dangerous is a question of fact for

the jury. Id.

Independent of the issue above, this Court has recognized that occupiers of a business premises owe a duty of care to those on the business premises.

See Valenti v. NET Properties Management, Inc., 142 N.H. 633 (1998).

Admittedly, it seems that the typical application of Valenti is that of a private citizen entering a commercial premises. However, it is undisputed that Liberty Mutual was the owner and occupier of the subject building, and that it remained open for commercial business at the time of Grady’s injury. Thus, even though Grady admittedly presents a different factual scenario than that of a more typical Valenti fact pattern, there does not appear to be anything in the

Valenti decision that precludes its application to the facts of Grady’s case.

For the foregoing reasons, the trial court’s order should be reversed, both

as to the dismissal of JLL and as to the dismissal of Liberty Mutual.