D’Kwon Robinson v. 1 Bouchard Street Realty

1. Whether the Superior Court erred in finding that Defendant had no duty of care to the Plaintiff.

Issue preserved by Plaintiff’s Objection to Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Reconsideration of this Court’s April 11, 2023 Order (Appendix, p. 168, 198). 2. Whether the Superior Court erred in finding the delegation of duties created by the triple net lease barred the claim by the Plaintiff. Issue preserved by Plaintiff’s Objection to Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Reconsideration of this Court’s April 11, 2023 Order (Appendix, p. 168, 198) 3. Whether the Superior Court erred in finding the Defendant (property owner) is not liable for the tenant’s non-performance of that duty of care.

Issue preserved by Plaintiff’s Objection to Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Reconsideration of this Court’s April 11, 2023 Order (Appendix, p. 168, 198). 4. Whether the Superior Court erred in relying on Kuchynksi v. Ukryn, 89 N.H. 400 (1938) as the controlling case in this matter. Issue preserved by Plaintiff’s Motion for Reconsideration of this Court’s April 11, 2023 Order (Appendix, p. 198).

5. Whether the Court erred in finding that Tanguay v. Marston, 127 N.H. 572 (1986) and Valenti v. NET Properties Management, Inc., 142 N.H. 633 (1988) were not controlling in this matter. Issue preserved by Plaintiff’s Motion for Reconsideration of this Court’s April 11, 2023 Order (Appendix, p. 198).

6. Whether the Court erred in finding that the depositions of Robert Bailey and John Ayotte did not create a genuine issue of material fact.

Issue preserved by Plaintiff’s Objection to Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Reconsideration of this Court’s April 11, 2023 Order (Appendix, p. 168, 198). 7. Whether the Court erred in finding that constructive notice of the icy conditions was immaterial to whether the Defendant had a duty of care to the Plaintiff.

Issue preserved by Plaintiff’s Motion for Reconsideration of this Court’s April 11, 2023 Order (Appendix, p. 198).

8. Whether the Court erred in finding that the Defendant property owner’s control and inspection of the property did not create a duty of care to the Plaintiff.

Issue preserved by Plaintiff’s Objection to Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Reconsideration of this Court’s April 11, 2023 Order (Appendix, p. 168, 198).

RSA 281-A:8 – Employees Presumed to Have Accepted.

II. The spouse of an employee entitled to benefits under this chapter, or any other person who might otherwise be entitled to recover damages on account of the employee's personal injury or death, shall have no direct action, either at common law or by statute or otherwise, to recover for such damages against any person identified in subparagraph I(a) or (b). III. Nothing in this chapter shall derogate from any rights a former employee may have under common law or other statute to recover damages for wrongful termination of, or constructive discharge from, employment. However, if a former employee makes a claim under this chapter for compensation for injuries allegedly caused by such wrongful termination or constructive discharge, the employee shall be deemed to have elected the remedies of this chapter, and to have waived rights to recover damages for such wrongful termination or constructive discharge under common law or other statute. Similarly, if a former employee brings an action under common law or other statute to recover damages for such wrongful termination or constructive discharge, the employee shall be deemed to have waived claims under this chapter for compensation allegedly caused by such termination or discharge.

Source. 1988, 194:2. 1991, 376:3. 1993, 24:1. 2001, 47:2, eff. Aug. 10, 2001.

RSA 491:8-a Motions for Summary Judgment.

II. Any party seeking summary judgment shall accompany his motion with an affidavit based upon personal knowledge of admissible facts as to which it appears affirmatively that the affiants will be competent to testify. The facts stated in the accompanying affidavits shall be taken to be admitted for the purpose of the motion, unless within 30 days contradictory affidavits based on personal knowledge are filed or the opposing party files an affidavit showing specifically and clearly reasonable grounds for believing that contradictory evidence can be presented at a trial but cannot be furnished by affidavits. Copies of all motions and affidavits shall, upon filing, be furnished to opposing counsel or to the opposing party, if the opposing party is not represented by counsel.

III. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits filed, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to the amount of damages.

IV. If affidavits are not filed by the party opposing the summary judgment within 30 days, judgment shall be entered on the next judgment day in accordance with the facts. When a motion for summary judgment is made and supported as provided in this section, the adverse party may not rest upon mere allegations or denials of his pleadings, but his response, by affidavits or by reference to depositions, answers to interrogatories, or admissions, must set forth specific facts showing that there is a genuine issue for trial.

fees. Any offending party or attorney may be found guilty of contempt. Source: 1955, 46:1. 1959, 264:1. 1965, 139:1; 208:14. 1973, 438:1. 1981, 260:1, eff. Aug. 15, 1981.

The underlying case was initiated in the Hillsborough Superior Court, Northern District, by the filing of the Plaintiff’s Complaint on October 21, 2021.

On or about October 19, 2022, the Defendant, 1 Bouchard Street Realty, LLC (hereinafter "Bouchard Street Realty") filed a Motion for Summary Judgment on October 19, 2022 (Appendix, p. 3). After receiving an appropriate extension, D’Kwon Robinson (hereinafter “Robinson” or “Plaintiff”) filed his Objection to the Defendant's Motion for Summary Judgment on December 19, 2022 (Appendix, p. 168). On April 11, 2023, the Trial Court granted the Defendant's Motion for Summary Judgment by determining that the Defendant did not owe the Plaintiff a duty to maintain the premises based on the existence of the triple net lease between the Defendant and the landowner (Addendum, p. 37). “The lease between Defendant and New Hampshire Plastics is clear that New Hampshire Plastics would retain exclusive possession and control of the premises” (Addendum, p. 46).

On April 19, 2023, Robinson filed a timely Motion for Reconsideration (Appendix, p. 197). Shortly thereafter, on April 27, 2023, Bouchard Street Realty submitted an objection to the Plaintiff’s request for reconsideration (Appendix, p. 244). Then, on June 7, 2023, the Trial Court denied the Motion for Reconsideration in a written opinion (Addendum, p. 48). This appeal followed.

The Plaintiff was injured as a result of a slip and fall injury that occurred on February 24, 2020 (Appendix, p. 19, 68, 133). At the time of the injury, the Plaintiff was working as a forklift operator/laborer for New Hampshire Plastics, Inc. (hereinafter “New Hampshire Plastics”) (Appendix, p. 67). Michael Desmarais (hereinafter “Desmarais”) was a part owner of New Hampshire Plastics and had been president of New Hampshire Plastics for about a decade prior to the building being sold on April 1, 2021 (Appendix, p. 107).

As its name suggests, New Hampshire Plastics was in the business of making plastic (Appendix, p. 69, 109-110, 320). One of the components in making the plastic was a chiller system and, at the time of the injury, there were some problems with that system (Appendix, p. 331). As a result of the broken component, maintenance had developed a temporary draining system using the city water to keep the machines cool (Appendix, p. 331- 32). For the temporary fix to work, each morning, an employee would have to go outside, unroll the hose across the parking lot, and then hook up the other end of the hose to the back of the building (Appendix, p. 68, 334-35). On the date in question, at around 6:00AM, the Plaintiff, along with another employee, was tasked with running the hoses (Appendix, p. 68-69, 72). There was an ice and snow-covered hill area where the hose was connected that had not been treated (Appendix, p. 68, 73-74, 349-50). While helping the other employee connect the hose, the Plaintiff slipped and fell on the untreated ice and was injured as a result (Appendix, p. 68, 76-78).

The property where the incident occurred was located at 1 Bouchard Street in Manchester, New Hampshire (Appendix, p. 112, 133). The Plaintiff’s employer, New Hampshire Plastics, leased the property from Bouchard Street Realty, a limited liability company with the sole member being Desmarais (Appendix, p. 22, 124). In addition to being president and part owner of New Hampshire Plastics, Desmarais has owned Bouchard Street for approximately 30 years (Appendix, p. 124). Thus, Desmarais has part ownership in the company that leases the building from the company he owns (Appendix, p. 36, 107, 124).

The term of the lease agreement ran from March 1, 2018, through February 28, 2023 (Appendix, p. 23). Desmarais, in his capacity as manager of both Bouchard Street Realty and New Hampshire Plastics signed the lease agreement as both the “Landlord” and “Tenant” (Appendix, p. 36).

The lease states that the tenant “shall keep in good repair and free from obstruction or encumbrances, all roadways, entry ways, walks, loading, unloading, and parking areas on the lease premises” (Appendix, p. 24). The lease further states that the tenant “shall keep the same free of dirt, snow and ice, ” and “accepted responsibility and ownership of all maintenance to the buildings and grounds” (Appendix, p. 24). In his role as owner of Bouchard Street Realty, Desmarais would perform outside inspection of the building at least once a month (Appendix, p. 127-28). During his deposition, Desmarais testified that the safety of the outside of the property was a concern during his monthly inspections as owner of Bouchard Street Realty (Appendix, p. 157).

The Trial Court erred when it determined that Defendant Bouchard Street Realty was relieved of its duty to maintain the premises in a safe condition based on the triple net lease between it and New Hampshire Plastics, LLC.

A general principle of law is that a business landowner may not delegate his duty to maintain the premises. Restatement (Second) of Torts, §425. In Valenti, the New Hampshire Supreme Court stated that “[a]lthough a possessor of a business premises is free to delegate the duty of performance to another … he cannot thereby avoid or delegate the risk of non-performance of that duty.” Valenti v. NET Properties Management, Inc., 142 N.H. 633, 636 (1998).

The Trial Court erred when it relied on Kuchynski v. Ukryn, 89 N.H. 400 (1938) (Addendum, p. 40, 54-55). The Defendant relied on Kuchynski for its position regarding the delegation of the duty to maintain. In the Kuchynski case, the Plaintiff by contract, assumed a duty to maintain his apartment. The Supreme Court held that since the plaintiff controlled the area and assumed the duty of care then there could be no recovery. Id. at 401. However, distinguishable from the instant case, in Kuchynski, the plaintiff and the defendant were both parties to the landlord/tenant contract (Appendix, p. 36). The result in the case at bar should be controlled by Tanguay v. Marston, 127 N.H. 572, 578 (1986), which involved a commercial lease agreement that assigned responsibility for the maintenance of the business premises to the employer. The New Hampshire Supreme Court stated “as between themselves, a lessor and lessee in a lease of commercial real estate may agree on which party will maintain the leased premises and which party will be liable for injuries caused by improper failure to maintain. Both parties to the commercial lease must be free to make their own bargain.” Tanguay, 127 N.H. at 578. The Court went on to say, “[w]e recognize that a lease of commercial real estate is in many ways much like any other commercial contract, where we allow the parties to assign risk and obligations between themselves.” Id.

However, the Court held that “[w]hile exculpatory clauses in leases of commercial real estate are binding on the parties to the lease, they have no effect on non-signers, such as the plaintiff” Id. (emphasis added). Lastly, while the Court noted that the terms of the commercial lease are binding on the parties, they “[do] not bar a suit by the plaintiff against the defendant.” Id.

The Trial Court erred in finding that the depositions of Robert Bailey and John Ayotte did not create a genuine issue of material fact (Addendum, p. 55). Specifically, the deposition testimony of Robert Bailey demonstrates that there are genuine issues of material fact as to whether Bouchard Street Realty fully delegated control for the maintenance of the property to New Hampshire Plastics (Appendix, p. 295-96).

The deposition testimony of John Ayotte also raises a genuine issue of material fact as to whether the icy condition that caused the Plaintiff to fall was in an area that the building owner was supposed to maintain (Appendix, p. 351, 354-55, 381).

Finally, the deposition testimony of John Ayotte raises a genuine issue of material fact as to whether Desmarais had notice of the icy condition at the premises prior to the Plaintiff’s fall (Appendix, p. 344-45, 364-65, 387).

In an appeal seeking to overturn a summary judgment decision, the Court reviews the Trial Court's application of law to the facts de novo. Lacasse v. Spaulding Youth Ctr., 154 N.H. 246, 248 (2006). "When reviewing a trial court's grant of summary judgment, [the Supreme Court] consider[s] the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the nonmoving party." Id; White v. Asplundh Tree Expert Co., 151 N.H. 544, 547, (2004). The Court affirms summary judgment if its "review of the evidence does not reveal a genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law." Id.; See also RSA 491:8-a.

In a claim for negligence, “the plaintiff has the burden of proving that the defendant owed the plaintiffs a duty, that the duty was breached, that the plaintiffs suffered an injury, and that the defendant’s breach was the proximate cause of the injury.” Laramie v. Sears, Roebuck & Co., 142 N.H. 653, 655 (1998). “Absent the existence of a duty, a defendant cannot be liable for negligence.” Carignan v. N.H. Int’l Speedway, 151 N.H. 409, 412 (2004).

“Whether a duty exists in a particular case is a question of law.” Williams v. O’Brien, 140 N.H. 595, 599 (1995). A duty generally arises out of a relationship between the parties. Sisson v. Jankowski, 148 N.H. 503, 505 (2002). “While a contract may supply the relationship, ordinarily, the scope of duty is limited to those in privity of contract with one another.” Bloom v. Casella Construction, Inc., 172 N.H. 625, 627 (2019). In New Hampshire, the general rule is that a premises owner has a duty to maintain those premises in a reasonable manner. Monier v. Belzil, 97 N.H. 176, 177 (1951).

Despite owning the property, Bouchard Street Realty argued that, in this case, the general principal that landowners have a non-delegable duty to maintain their premises in a reasonable manner did not apply and therefore, summary judgment was appropriate (Appendix, p. 10). In support of its position, Bouchard Street Realty cited the Kuchynski case and argued that by executing the triple net lease, New Hampshire Plastics retained exclusive control of the maintenance of the property in which the Plaintiff was injured. Kuchynski v. Ukryn, 89 N.H. 400 (1938) (Appendix, p. 15). Building on that, the Defendant further argued that because New Hampshire Plastics has exclusive control, Bouchard Street Realty had no duty to maintain the premises where the Plaintiff was injured and, resultingly, no duty of care to the Plaintiff (Appendix, p. 16).

In Kuchynski, the plaintiffs were thirteen-year residential tenants of the property in question, the last six years of which the property was owned by the defendants. Kuchynski v. Ukryn, 89 N.H. 400, 401 (1938). The lease agreement did not contain a provision for the defendant owner to maintain the property; however, the defendant had made some interior repairs to the foot of a post with the intent to make the post firmer. Id. The plaintiff’s wife was injured due to the insecurity of the same post that had been repaired by the defendants. Id. at 400.

This Court found that because the plaintiff controlled the area and, in turn, assumed the duty of care for the interior post in the contract between the two parties, “there can be no recovery.” Id. at 401. In the present case, on April 11, 2023, the lower Court granted summary judgment on behalf of Defendant Bouchard Street Realty, noting that it “agrees with the logic in Kuchynski. Here the Lease makes it explicitly clear that New Hampshire Plastics was responsible for maintaining the safety of the property” (Addendum, p. 40). Building on that, the trial court noted that “similar to the defendants in Kuchynski, there is no evidence of any kind of additional contract that shifted the responsibility for maintaining the property back to the Defendant” (Addendum, p. 40). As a result, the lower Court noted that Bouchard Street Realty “did not owe Plaintiff a duty of care to keep the premises safe” (Addendum, p. 41).

The Plaintiff avers that the Trial Court erred in finding that Defendant Bouchard Street Realty did not owe a duty of care to the Plaintiff. More specifically, the Plaintiff notes that the Trial Court erred by (a) finding that the delegation of duties created by the commercial lease agreement barred the claim by the Plaintiff, (b) determining that Bouchard Street Realty properly delegated its duty to maintain the premises to the employer, and (c) maintaining that a property owner is not liable for non- performance of a tenant’s duty of care. Each of these arguments are outlined below. a. The Trial Court erred in finding that the delegation of duties created by the commercial lease agreement barred the claims by the Plaintiff.

Based on a review of the facts of the case and the language set forth by this honorable Court in the line of other cases, Kuchynski is not applicable in these circumstances. Rather, the claimant avers that the facts in Tanguay are substantially more analogous to the present matter and, as such, the language contained in said case should have been the controlling law used by the Trial Court in addressing summary judgment. See Tanguay v. Marston, 127 N.H. 572 (1986).

In Tanguay, the Plaintiff suffered a work-related slip and fall injury outside his place of employment and subsequently brought suit against the commercial property owner that leased the building to his employer. Id. at 574-75. The commercial lease agreement assigned responsibility for the maintenance of the business premises to the employer and contained a provision which indemnified the property owner “for any losses the defendant incurred as a result of any unsafe conditions.” Id. On those facts, this Court held that “as between themselves, a lessor and lessee in a lease of commercial real estate may agree on which party will maintain the leased premises and which party will be liable for injuries caused by improper failure to maintain. Both parties must be free to make their own bargain.” Id. at 578.

However, this Court also noted that “[w]hile exculpatory clauses in leases of commercial real estate are binding on the parties to the lease, they have no effect on non-signers, such as the plaintiff.” Id. In reversing and remanding the case, this Court noted that while the terms of a commercial lease agreement are binding on parties, “[do] not bar a suit by the plaintiff against the defendant.” Id.

The Plaintiff avers that it’s clear Tanguay is substantially more analogous to the facts of this case than Kuchynski. In Kuchynski, unlike the underlying case, the plaintiffs were a party to a long-term residential lease agreement in which the plaintiff was responsible for maintenance of the property. Kuchynski, 89 N.H. at 401. The plaintiff was injured when a post the plaintiffs themselves had the duty to maintain caused the injuries to the plaintiff. Id.

It is also apparent upon a review of Kuchynski that the case ultimately stands for the proposition that a landowner may not be required, in the narrow, fact-specific circumstances of that case, assume the duty of care from the plaintiff arising out of the plaintiff’s own negligent repairs. It would be an overbroad reading of Kuchynski to interpret it as altering the general rule of reasonable care defining a landlord’s duty in cases involving a third-party plaintiff. Id. This Court noted in Kuchynski that the plaintiffs “had no knowledge of the [repairs] until after the accident.” Id. Therefore the plaintiffs “have placed no reliance upon the [repairs] as that of one who assumed a duty to care for the security of the post.” Id. Unlike the tenants in Kuchynski, the Plaintiff in the underlying matter never assumed the duty of maintenance for Bouchard Street Realty’s property and was not even a party to the commercial lease agreement (Appendix, p. 36).

As a result, the facts of the Kuchynski case are clearly distinguishable from those of the underlying matter, which is even more apparent when compared to the facts of Tanguay. Like Tanguay, the Plaintiff in the instant case was injured at work after he slipped and fell outside his place of employment (Appendix, p. 19, 67-68, 133). See Tanguay, 127 N.H. at 574. Like Tanguay, the employer (in this case New Hampshire Plastics) executed a commercial lease agreement which assigned them the responsibility for maintaining the property (Appendix, p. 24, 36). Id. at 575. Like Tanguay, the Plaintiff was not in any way a party to the commercial lease agreement that was signed between his employer and the property owner (in this case Bouchard Street Realty) (Appendix, p. 36). Id.

Accordingly, it stands to reason that, like Tanguay, because the Plaintiff was not a party to the commercial lease agreement, he should not be barred from bringing a suit against Bouchard Street Realty. Id. at 578. This Court has been very clear that “[w]hile exculpatory clauses in leases of commercial real estate are binding on the parties to the lease, they have no effect on non-signers, such as the plaintiff.” Id. Lastly, it’s important to note that the legal rule applied in Kuchynski is perfectly consistent with the general pronouncement of the law set forth in Tanguay. The results were different in those two cases because in one, the Plaintiff was a party to the lease (Kuchynski, 89 N.H. at 401), and in the other the Plaintiff was a third-party (Tanguay, 127 N.H. at 575). Despite the factual differences, the general legal principle that the parties to a lease agreement are free to make their own bargain regarding the duty of maintenance remains the same. The Plaintiff is not asking this honorable Court to choose between two different legal rules. Rather, the Plaintiff avers that where the trial court erred was failing to appreciate the important factual distinction between Kuchynski and Tanguay, leading to it misapplying the controlling law to the applicable facts. Thus, for the reasons listed above, the Plaintiff avers that the Trial Court erred in granting summary judgment on behalf of Bouchard Street Realty and against the third-party Plaintiff who was not a party to the commercial lease agreement. b. The Trial Court erred in determining that Bouchard Street Realty was not liable for the non-performance of the contractual duty to maintain the premises by the employer.

In addition to finding that the Plaintiff was barred from bringing suit against the property, the Plaintiff avers that the Trial Court also erred in finding that Bouchard Street Realty was not liable for New Hampshire Plastic’s non-performance of the duty of maintenance. In support of its decision regarding a property owner’s obligation on non-performance of duty, the Trial Court cited a number of cases from different jurisdictions that address this specific issue. More specifically, the Trial Court relied upon decisions from the New Jersey Superior Court and a federal court in Pennsylvania in determining that the commercial lease agreement “does not amount to an unlawful delegation of Defendant’s duty to maintain the premises” (Addendum, p. 42). The Plaintiff avers that the Trial Court erred in being persuaded by non-jurisdictional cases instead of the long line of controlling New Hampshire Supreme Court decisions. This Court has been clear that those who own or operate business premises are in the best position to protect against the risk of personal injury on their premises and can seek indemnification or contribution from their independent contractors. Sears, Roebuck & Co. v. Philip, 112 N.H. 282, 284-86 (1972).

While indemnification is permitted, the controlling general principle of law at issue in this case is that a business landowner may not delegate his duty to maintain the premises. Restatement (Second) of Torts, §425. In Valenti, this Court affirmed that general principle, noting that “[a]though a possessor of a business premises is free to delegate the duty of performance to another … he cannot thereby avoid or delegate the risk of non- performance of the duty.” Valenti v. NET Properties Management, Inc., 142 N.H. 633, 636 (1998).

This honorable Court also addressed these issues in Callier, noting that “one may not by contract relieve himself from the consequences of the future non-performance of his common law duty to exercise reasonable care.” Callier v. Humble Oil Refining Co., 117 N.H. 915, 918 (1977). This principle is also supported by Tanguay, which noted that “[w]hile exculpatory clauses in leases of commercial real estate are binding on the parties to the lease, they have no effect on non-signers, such as the plaintiff.” Tanguay, 127 N.H. at 578.

Thus, it’s clear from the line of cases from this honorable Court that, while Bouchard Street Realty is free to contract with New Hampshire Plastics regarding who has ultimate financial responsibility (i.e., via indemnity language) to maintain the property, Bouchard Street Realty cannot “avoid or delegate the risk of non-performance of that duty.” Valenti, 142 N.H. at 636. As a result, the Trial Court erred in disregarding the line of New Hampshire cases on point for this issue and instead relying on cases from other jurisdictions.

Accordingly, for the reasons stated above, the Supreme Court should reverse the Trial Court’s Order granting summary judgment on behalf of Bouchard Street Realty.

Summary judgment is appropriate in cases where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits filed, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” N.H. RSA 491:8-a. A disputed fact is “genuine” if “the evidence is such that a reasonable [fact-finder] could return a verdict for the nonmoving party” and “material” if it “might affect the outcome of the suit.” Horse Pond Fish & Game Club v. Cormier, 133 N.H. 648, 653 (1990).

In making a ruling on summary judgment, “the trial court is required to construe the pleadings, discovery and affidavits in the light most favorable to the non-moving party to determine whether the proponent has established the absence of a dispute over any material fact and the right to judgment as a matter of law.” Thomas v. Telegraph Publishing Co., 155 N.H. 314, 321 (2007).

In his objection, the Plaintiff noted that summary judgment would not be appropriate at the time because discovery was ongoing, including a pending deposition of the apparent head of maintenance at New Hampshire Plastics, Robert Bailey (hereafter “Bailey”) (Appendix, p. 173). Despite the pending deposition, the trial court granted summary judgment on April 11, 2023, noting that it was “unpersuaded that any outstanding discovery could be material to the outcome” (Addendum, p. 45-46). Building on this, the Trial Court further noted that “in light of New Hampshire Plastics assuming the duty to maintain the premises pursuant to the lease, Bailey’s deposition, based on the evidence provided about Desmarais’ involvement would not be material to determine if Defendant owed Plaintiff a duty” (Addendum, p. 46). Prior to receiving the decision on the motion for summary judgment from the Trial Court, depositions of both Bailey and John Ayotte (hereinafter “Ayotte”) were completed by the Plaintiff (Appendix, p. 250, 309). Both of these depositions were scheduled to be conducted at the time the Defendant requested summary judgment and the Plaintiff noted as such in their objection (Appendix, p. 173). Their depositions were completed prior to the Plaintiff’s Motion for Reconsideration and their testimony was included as part of the request (Appendix, p. 201-04).

Despite the new testimony from Bailey and Ayotte, which substantially contradicted the testimony of Desmarais, on June 7, 2023, the trial court denied the Plaintiff’s Motion for Reconsideration (Addendum, p. 48). In denying the Plaintiff’s motion, the Trial Court noted that it agreed with Bouchard Street Realty that “[n]either Bailey or Ayotte’s testimony create a genuine dispute of fact over whether Defendant owed a duty to Plaintiff” (Addendum, p. 55). The Plaintiff avers that, for the reasons noted below, the Trial Court erred in finding that the testimony of both Bailey and Ayotte did not create a number of genuine issues of material fact. a. The deposition testimony of Robert Bailey demonstrates that there are genuine issues of material fact as to whether Bouchard Street Realty fully delegated control for the maintenance of the property to New Hampshire Plastics.

Robert Bailey (hereinafter “Bailey”), the maintenance technician at New Hampshire Plastics, was deposed as part of the discovery in this case (Appendix, p. 250). Bailey testified that he was not in charge of, nor did he supervise, any landscaping, plowing or sanding the parking lots (Appendix, p. 262-63). Bailey further testified that he was not aware of anyone at New Hampshire Plastics that would inspect the outside of the property for snow removal, salting, and sanding (Appendix, p. 263-64). He also noted that there was no one in the maintenance department for New Hampshire Plastics that was a property maintenance person (Appendix, p. 263). Bailey also testified that after New Hampshire Plastics was sold to Grimco in April 2021, Desmarais still handled the property maintenance and still maintained the building and the grounds (Appendix, p. 295). Bailey testified that he was under the impression that the owner of the building was maintaining the grounds when he worked for New Hampshire Plastics (Appendix, p. 295). Bailey also testified that he was unclear whether Bouchard Street Realty or New Hampshire Plastics maintained the grounds of the property (Appendix, p. 296).

Despite the substantially conflicting testimony, the Trial Court noted that Bailey’s testimony “would only be material to the extent that it shows that Defendant acted in a manner that suggested that Defendant regained control of the premises” and that “periodic inspections of the premises alone were insufficient to demonstrate that Defendant retained control over the premises” (Addendum, p. 56).

Bailey’s testimony is notable because it directly contradicts much of the testimony provided by Desmarais regarding who was controlling the maintenance at the property in question. As noted above, in his sworn testimony, Desmarais identified Bailey as his maintenance manager at New Hampshire Plastics and the person responsible for maintaining the area where the Plaintiff fell (Appendix, p. 122, 130). Bailey also noted that, while New Hampshire Plastics had snowplows, the maintenance department did not handle any plowing, sanding, or maintenance of the parking lot nor did he supervise anyone else doing it, a direct contraction to the testimony of Desmarais (Appendix, p. 263-64). As a result, one can reasonably assume that if no one employed by New Hampshire Plastics was responsible for maintenance of the parking lot, then Defendant Bouchard Street Realty was in fact responsible for the area in question. Bailey’s testimony undoubtedly demonstrates that the people that Desmarais described under oath as being responsible for maintaining the property were in fact not the people responsible for maintaining the property (Appendix, p. 122, 130, 262-63). It’s even more telling that Desmarais should have intimate knowledge regarding the property, considering his position as President of the employer and owner of Bouchard Street Realty (Appendix, p. 36, 107, 123). At the very least, there is certainly a genuine issue of material fact as to the responsible party for plowing, sanding, and maintenance.

In response, the Trial Court noted that the “Plaintiff fails to acknowledge that even though Bailey did not know exactly who was responsible for plowing and maintaining the grounds, he knew that New Hampshire Plastics owned and operated the snowplows. Nothing in Bailey’s deposition suggests that [Bouchard Street Realty] and not New Hampshire Plastics were the ones responsible for plowing and otherwise maintaining the exterior of the premises” (Addendum, p. 56). The Plaintiff avers that this language only further demonstrates the Trial Court’s error and supports a finding that a genuine issue of material fact exists. The question is not who owns the plows or who operates the plows. Rather, the question is who is controlling the maintenance, directing it to be performed, and, ultimately, who is actually performing it (since the testimony of Bailey demonstrates the maintenance people employed by New Hampshire Plastics were not the ones doing it) (Appendix, p. 263). Desmarais’ actions and the testimony of Bailey clearly demonstrate that Bouchard Street Realty never fully delegated control of the maintenance of the property to New Hampshire Plastics (Appendix, p. 127- 28, 152-53, 157). Mr. Desmarais was intimately involved in these two companies and kept Bouchard Street actively involved in the outdoor maintenance of the property to the point where even Bailey himself thought he was being directed by Bouchard Street Realty (Appendix, p. 295). Desmarais, as the owner of the property, would also regularly inspect the property for safety issues further implying his control of maintenance at the property (Appendix, p. 127, 150). There’s also the question of whether Desmarais as owner of Bouchard Street Realty and as part owner/President of New Hampshire Plastics are one in the same. Desmarais executed the commercial lease on behalf of both the landlord (Bouchard Street Realty) and the employer/tenant (New Hampshire Plastics) and also has the most to gain financially from Bouchard Street Realty not owing a duty to the Plaintiff (Appendix, p. 36).

By asserting that the employer was responsible for the maintenance, Demarais is also in turn protecting his own interests as the owner of property (Appendix, p. 36). His pointing the finger at New Hampshire Plastics makes strategic sense, due to New Hampshire Plastics being immune from the suit owing to its status as the Plaintiff’s employer. N.H. Rev Stat § 281-A:8 (2022). Essentially, by asserting that the property owner did not have a duty, he hopes to make both of his financial interests, New Hampshire Plastics and Bouchard Street Realty, immune from full responsibility in the underlying matter.

It’s telling that the two parties with no pecuniary interests in this matter (Bailey and Ayotte) have substantially contrasting ideas regarding the entity controlling maintenance for the property than the party that does have said interests (Desmarais) (Appendix, p. 263, 295-96, 341, 387). It’s also telling that Bailey testified that after New Hampshire Plastics was sold to Grimco in April 2021, Desmarais continued to perform the property maintenance and still maintained the building and the grounds (Appendix, p. 295). Desmarais confirmed as much in his own deposition (Appendix, p. 153). Interestingly, despite Bouchard Street Realty now being responsible for maintenance, Desmarais noted that he inspects the premises less frequently than when New Hampshire Plastics was allegedly responsible (Appendix, p. 150) It’s also telling that the Commercial Lease Agreement required Bouchard Street Realty’s prior written consent for any “alterations, installations, additions or improvements … to the Leased Premises.”

(Appendix, p. 24-25). Thus, whether the ice build-up was caused by the leaky roof (according to the deposition of Ayotte), or by the installed hoses, approval would have to come from Bouchard Street Realty before those issues could be fixed (Appendix, p. 24-25, 350-51, 381). Thus, Bouchard Street Realty, and not New Hampshire Plastics, ultimately had sole control over whether the ice buildup behind the building would be remedied. And as the testimony of Ayotte and Bailey demonstrate, the ice build-up was not a concern of Bouchard Street Realty as it had been reported to the employer and the condition apparently existed well before the commercial lease agreement was executed (Appendix, p. 344-45, 364-65, 387). Thus, the Trial Court erred in both granting summary judgment without the benefit of the depositions being conducted and then compounded said error by finding there was no genuine issue of material fact after they were completed. For those reasons, the Plaintiff avers that this honorable Court should overturn the decision of the Trial Court. b. The deposition testimony of John Ayotte raises a genuine issue of material fact as to whether the icy condition that caused the Plaintiff to fall was in an area that the building owner was supposed to maintain.

John Ayotte (hereafter “Ayotte”), a shift supervisor for 27 years at New Hampshire Plastics, also testified under oath in this case (Appendix, p. 316). Ayotte worked for New Hampshire Plastics for 40 years and spent most of his time at the building owned by Bouchard Street Realty (Appendix, p. 316, 318). Ayotte testified that he remembered when the Plaintiff was hurt on the property and recalled that the Plaintiff fell outside, in the back of the building (Appendix, p. 321, 324).

He testified that the Plaintiff was outside because there was a problem with the chiller system, which maintenance attempted to alleviate by rigging up a system to drain water (Appendix, p. 331-32). Ayotte further testified that he thought the way the system was rigged up for draining water was dangerous and he had told the company that it was dangerous before the Plaintiff fell (Appendix, p. 344-45, 387). Ayotte also testified that he went outside after the Plaintiff fell and saw ice out there (Appendix, p. 349, 385). He testified that there is always ice buildup in that area (Appendix, p. 354-55, 380).

Ayotte believes that the ice buildup in the back of the building was due to melting snow from the roof (Appendix, p. 351, 353, 357-58, 380). He testified that he previously brought this issue up with maintenance (Appendix, p. 364-65). Ayotte also noted it was unlikely that the hose was the cause of the icy condition because the open end of the hose was run across the parking lot to drain into the woods (Appendix, p. 357-58, 376). Additionally, it was unlikely there would be any leakage from where the hose was connected to the building due to the type of connector that they used (Appendix, p. 351).

Ayotte further noted that the building was a flat top roof with spouts that came off the sheet metal (Appendix, p. 381). As a result, any melting snow would make “a waterfall type of thing” off the roof of the building and anything on the edge of the flat roof would drain off to the area the Plaintiff fell (Appendix, p. 351, 381, 385). Ayotte further described the area that the Plaintiff fell as “a little treacherous” (Appendix, p. 385). Ayotte also noted that the temporary draining system using the hose had only been put in place for the one winter when the Plaintiff was injured (Appendix, p. 331-32, 337-38, 374-75). However, Ayotte noted that he frequently saw icy buildup in the area the Plaintiff fell well before the hose was used (Appendix, p. 354-55). All of these facts suggest that the roof, not the hose, was the cause of the icy condition.

The Commercial Lease Agreement contains two applicable provisions under Article VI regarding “Grounds of the Leased Premises; Maintenance Thereof, ” none of which mention that the employer was in anyway responsible for maintenance of the roof (Appendix, p. 24). Additionally, as mentioned above, if the roof needed repair to remedy the issue of ice building up below, that would be at the responsibility of Bouchard Street Realty, not New Hampshire Plastics, to approve such a repair (Appendix, p. 24-25). Desmarais even directed a company to repair the roof at the property in question after it was sold to Grimco (Appendix, p. 152). Thus, the Plaintiff avers that, if the roof was the cause of the icy condition, Bouchard Street Realty certainly had a duty to the Plaintiff. It appears the Trial court chose not to specifically address the issue as to whether the cause of the ice build-up raised a genuine issue of material fact, nothing only that the “Court found that the Defendant did not owe Plaintiff a duty to safely maintain the premises [and] Defendant’s knowledge about potential icy conditions on the premises is not material” (Addendum, p. 55).

Any discussion regarding the actual cause of the icy condition the Plaintiff slipped on and whether this is a genuine issue of material fact is silent from the order (Addendum, p. 55-57). Thus, the Plaintiff avers that the Trial Court erred in granting summary judgment because the cause of ice buildup, and the property owner’s liability for it, presents a genuine issue of material fact.

It’s unclear from the deposition testimonies of Ayotte, Bailey, and Desmarais whether the ice buildup was caused by the hoses or by the roof, with only Ayotte noting his belief of the cause being the roof (Appendix, p. 137, 351, 381). However, in construing the facts in the light most favorable to the Plaintiff, if the cause is as Ayotte noted, then Bouchard Street Realty certainly owed a duty of care to the Plaintiff and breached that duty when it failed to remedy issues with the roof which apparently existed well before the chiller system was installed (Appendix, p. 351, 354-55). For those reasons, the Plaintiff avers that this honorable Court should overturn the decision of the Trial Court. c. The deposition testimony of John Ayotte raises a genuine issue of material fact as to whether Desmarais had notice of the icy condition at the time of the Plaintiff’s fall.

“A premises owner is subject to liability for harm caused to entrants on the premises if the harm results … from … the owner’s failure to remedy or give warning to a dangerous condition of which he knows or in the exercise of reasonable care should know.” Rallis v. Demoulas Super Mkts., Inc., 159 N.H. 95, 99 (2009).

In Simpson, this honorable Court found that a jury can find actual or constructive knowledge of icy conditions from evidence that: (1) on the day in question, there was so much precipitation that a plowing company spent between four and one-half and five hours cleaning snow and spreading nine tons of salt on the store’s parking lot; (2) snow and ice were seen up against the store building that day; and (3) the head of maintenance testified that during the winter, ice and snow posed a hazard to customers.” Simpson v. Wal-Mart Stores, 144 N.H. 571, 573-574 (1999).

In its order from June 7, 2023, the Trial Court noted that they agree with the Defendant that Ayotte’s testimony is “irrelevant and do[es] not create a dispute of material fact” (Addendum, p. 55). Building on this the Trial Court found that the “Defendant did not owe Plaintiff a duty to safely maintain the premises [and] Defendant’s knowledge about potential icy conditions on the premises is not material” (Addendum, p. 55). Ayotte’s testimony makes it clear that the ice buildup was not a one- time occurrence as he noted that it would happen every winter when the snow would melt off the roof (Appendix, p. 354, 364-65, 383). Additionally, Ayotte’s testimony makes it clear that the roof of the property owned by the Defendant, and not the drainage system installed by the employer/tenant, was the basis for the icy conditions that existed on the property (Appendix, p. 351, 381). At the very least, Ayotte’s testimony created a genuine issue of material fact as to the Defendant’s knowledge of the ice issue as prior to the Plaintiff’s fall (Appendix, p. 344-345, 354-55, 364-65, 381, 387).

Ayotte testified that the ice buildup was a constant issue from ice melting on the building, which the Defendant clearly should have noticed when he would inspect the property approximately once a month while walking his dogs during the 32 years that he owned the property in question (Appendix, p. 381). Ayotte testified under oath that the drainage system that was rigged up to drain water was only in existence for the winter of 2019-2020; however, the icy condition in the area the Plaintiff fell existed for many years prior to that (Appendix, p. 354-55, 364-65, 374, 387).

While he very likely had actual notice based upon the testimony of Ayotte, Desmarais as the owner of Bouchard Street Realty certainly had at least constructive notice of the dangerous conditions on the property. At the very least, there is a genuine issue of material fact whether Bouchard Street Realty owed the Plaintiff a duty of care based on Mr. Desmarais’ constructive knowledge of the icy conditions on the property.

The Trial Court erred in granting summary judgment in favor of Defendant Bouchard Street Realty. Pursuant to a well-established body of New Hampshire precedent, a jury should decide whether Defendant Bouchard Street Realty owed the Plaintiff a duty of care. In viewing the evidence in the light most favorable to the Plaintiff, the non-moving party, summary judgment should have been denied. Accordingly, the Plaintiff/Appellant, D’Kwon Robinson, respectfully requests that this honorable Court reverse the decision of the Trial Court granting summary judgment on behalf of the Defendant and remand the matter back to the Trial Court for a jury trial.

The Appellant, D’Kwon Robinson, respectfully requests 15 minutes of oral argument to be given by John L. Ward, Esq.

I, John L. Ward, Esq., do hereby swear and affirm that on October 6, 2023, copies of the foregoing, the Addendum, and the Appendix were forwarded via the New Hampshire Supreme Court electronic filing system to opposing counsel, Daniella Masamilla Esq.

I, John L. Ward, Esq. do hereby swear and affirm that the appealed decisions are in writing and are included in the Addendum to this brief. I, John L. Ward, Esq. do hereby swear and affirm that, pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains 8, 188 words, less than the 9, 500 words limit. Counsel relied upon the word count of the computer program used to prepare this brief.