Eileen Bloom v. Casella Construction, Inc.

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Belknap
No. 2018-0425
EILEEN BLOOM
v.
CASELLA CONSTRUCTION, INC.
Argued: March 13, 2019
Opinion Issued: October 16, 2019
Shaughnessy Raiche, PLLC, of Bedford (Brian C. Shaughnessy on the
brief and orally), for the plaintiff.
Morrison Mahoney LLP, of Manchester (Joseph G. Yannetti and Brian A.
Suslak on the brief, and Mr. Suslak orally), for the defendant.
HANTZ MARCONI, J. In this tort action, the plaintiff, Eileen Bloom,
appeals the order of the Superior Court (O’Neill, J.) granting summary
judgment to the defendant, Casella Construction, Inc. (Casella), ruling that the
defendant did not owe the plaintiff a duty of care and was not otherwise liable
to the plaintiff pursuant to Section 324A of the Restatement (Second) of Torts.
We affirm in part, reverse in part, and remand.
The record supports the following facts. On the morning of December
30, 2013, the plaintiff drove to Dartmouth-Hitchcock Medical Center (DHMC)
in Lebanon, where she worked as a nurse. She parked her vehicle in an
employee parking lot, exited the vehicle, and took approximately two steps
before she slipped and fell on ice. According to the plaintiff, there was “no sand
[or] ice melt applied to the lot,” despite that it had snowed “maybe” a couple of
inches the night before and some of the snow had melted and refrozen
overnight in the parking lot. As a result of her fall, the plaintiff suffered
injuries that required surgery.
At the time of the plaintiff’s accident, DHMC had a “Snow Plowing
Agreement” with Casella (the contract) whereby Casella was to “provide certain
services, including the equipment and labor for snow removal services” and
agreed “to coordinate with [DHMC] to provide all services in accordance with”
the “Snow Plowing Guidelines” (guidelines) attached to the contract. The
guidelines stated that: “[s]alting and sanding will be done by DHMC unless
assistance is asked and direction given by the DHMC Grounds Supervisor or
his designee”; “[s]alt is applied . . . at the start of plowing operations as an anti-
icing agent and during a storm to meet the objectives of this plan”; Casella
“shall apply salt and/or sand only as directed by the DHMC Grounds
Supervisor or his designee”; “[e]mployee lots shall be kept plowed as clear as
possible and accessible at the start of each shift change”; and “[g]enerally salt
is applied to parking lots prior to or at the start of a storm and after storm
cleanup or as directed by DHMC Grounds Supervisor or his designee.”
The plaintiff sued Casella, claiming that “[a]s an entity contractually
obligated to provide winter maintenance to the parking lot in question, and in
particular to treat accumulations of winter precipitation,” Casella had a duty to
“employ reasonable care to maintain the premises in a reasonably safe
condition for those such as the plaintiff who used the premises for their
intended purposes.” She alleged that Casella breached its duty and “was
negligent and careless in failing to maintain the premises in a reasonably safe
condition.” According to the plaintiff, “[n]o claim was made against Dartmouth
Hitchcock, since her employer enjoyed statutory immunity for workplace
injuries.” See RSA 281-A:8 (2010).
Casella moved for summary judgment on the ground that it owed no
duty of care to the plaintiff. Following a hearing, the trial court granted the
defendant’s motion. Subsequently, the court denied the plaintiff’s motion for
reconsideration, and this appeal followed.
On appeal, the plaintiff asserts that the trial court erred in granting
summary judgment on the ground that the defendant owed her no duty of care.
She argues that there are several reasons why a duty exists in this case:
mutuality of interest between the plaintiff and DHMC; the rule set forth in
Hungerford v. Jones, 143 N.H. 208 (1998); and public policy. She also argues
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that Section 324A of the Restatement (Second) of Torts provides for liability in
these circumstances. We address these in turn.1
In reviewing a trial court’s ruling on a motion for summary judgment, we
consider the evidence, and inferences properly drawn from it, in the light most
favorable to the nonmoving party. See Sabinson v. Trustees of Dartmouth
College, 160 N.H. 452, 455 (2010). We affirm a trial court’s decision if our
review of the evidence discloses no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Christen v. Fiesta
Shows, Inc., 170 N.H. 372, 375 (2017). We review the trial court’s application
of the law to the facts de novo. Id.
To recover for negligence, the plaintiff must demonstrate that the
defendant owes a duty to her, that the defendant breached that duty, and that
the breach proximately caused injury to her. See Lahm v. Farrington, 166 N.H.
146, 149 (2014). Absent a duty, there is no negligence. Christen, 170 N.H. at
375. Whether a duty exists in a particular case is a question of law. Id.
The plaintiff first argues that “[t]here was sufficient mutuality of interests
between [her] and her employer for the plaintiff to stand in the shoes of her
employer and establish a relationship of privity warranting the imposition of a
duty.” 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 the duty is limited to those in privity of
contract with one another. Id. Because there is no dispute that the plaintiff
was not a party to the contract between DHMC and Casella, it follows that she
is not in privity of contract with Casella. Rather, the plaintiff asserts that, as
an employee of DHMC, she and DHMC “have a mutual interest in avoiding
workplace injuries” — her interest being “the avoidance of injury” and DHMC’s
“economic interest is avoidance of the costs of on-the-job injuries” — and that
given this “mutuality of concern, . . . it is not fair to completely disown the
concept of legal privity as between employer and employee.” Casella counters
that “[a]bsent any evidence of intent to benefit third parties like [the plaintiff],
her ‘mutuality of interests’ argument must fail as a matter of law, and any
claims of implied privity were properly rejected by the Trial Court.”
We agree with the defendant that the trial court properly rejected the
plaintiff’s “mutuality of interests” argument. As the trial court reasoned,
“nothing in the plain language of the Contract indicates that DHMC’s intent
was to protect its employees from workplace injuries,” and, “even if that was
DHMC’s underlying intent, there is no indication that Casella was aware that a
1 To the extent that, at oral argument, the plaintiff discussed other legal theories to establish that
the defendant owed her a duty of care, we do not consider them because she has not briefed
them. See State v. Mitchell, 166 N.H. 288, 292 (2014) (declining to address argument made at
oral argument that was not briefed).
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benefit to third parties was contemplated by DHMC, which would be required
to impose liability on Casella for injury to third party beneficiaries.” See
Spherex, Inc. v. Alexander Grant & Co., 122 N.H. 898, 903 (1982) (explaining
that “a third-party beneficiary relationship exists if the contract is so expressed
as to give the promisor reason to know that a benefit to a third party is
contemplated by the promisee as one of the motivating causes of his making
the contract,” and noting that “a promisor owes [a duty] to an intended third-
party beneficiary” (quotation, brackets, and ellipsis omitted)); Brooks v.
Trustees of Dartmouth College, 161 N.H. 685, 697-98 (2011) (explaining that a
“benefit to a third party is a ‘motivating cause’ of entering into a contract only
where the promisee intends to give the beneficiary the benefit of the promised
performance” (quotation omitted)).
The plaintiff argues, nonetheless, that a duty exists under the rule set
forth in Hungerford. In Hungerford, we recognized that “parties owe a duty to
those foreseeably endangered by their conduct with respect to those risks
whose likelihood and magnitude make the conduct unreasonably dangerous.”
Hungerford, 143 N.H. at 211. Thus, we held that a therapist owes an accused
parent a duty of care in the diagnosis and treatment of an adult patient for
sexual abuse where the therapist or the patient, acting on the encouragement,
recommendation, or instruction of the therapist, takes public action concerning
the accusation. Id. at 215. The duty of care to the accused parent is breached
when the publicized misdiagnosis results either from use of psychological
techniques not generally accepted in the mental health community, or from
lack of professional qualification. Id.
The plaintiff asserts that, “[a]pplying Hungerford to this case, it is clear
that the relevant inquiry would be whether careless snow removal is
unreasonably dangerous to the pedestrians who will later need to negotiate the
surfaces and pathways which should have been safely treated.” Casella
counters that because its snow removal services did not constitute
“unreasonably dangerous” conduct, Hungerford does not apply. The trial court
rejected the plaintiff’s assertion that the inquiry should focus on the risk of
harm posed by the careless performance of an activity, and not the inherent
danger in the activity itself. As the court noted, “by the plaintiff’s definition,
nearly any activity, if carelessly performed, could pose a foreseeable risk of
harm to others” and that was not the intent of Hungerford. Although we agree
with the defendant that its snowplowing services do not constitute
unreasonably dangerous conduct, such is not the whole of the inquiry. Rather,
the Hungerford analysis relied on a determination that the negligent activity
posed a risk of outsized harm sufficient to create a duty. See Hungerford, 143
N.H. at 211. Given that there is no evidence in the record before us to support
the existence of such a risk, we affirm the trial court’s conclusion that
Hungerford is inapplicable under the circumstances presented in this case.
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Next, the plaintiff raises a policy argument citing “external elements” that
she contends “support the finding of a relationship adequate to impose a duty.”
(Capitalization omitted.) She asserts that “[i]n barring [her] action against the
third-party contractor, the law would prevent the workers’ compensation
carrier . . . from replenishing itself, and place upward pressure on the carrier’s
rates,” which “should be disfavored as a matter of policy.” She also argues that
“Casella’s appeal to DHMC’s ‘freedom to hire’ is not [a] persuasive” reason to
limit Casella’s liability, because that reasoning “diminishes the natural
deterrence imposed by the law of negligence and frees the blameworthy from
the justice of compensation.” (Capitalization omitted.) In addition, the plaintiff
argues that the defendant’s position “subverts the New Hampshire statutory
framework for ‘Limited Liability for Winter Maintenance’” under RSA 508:22
(Supp. 2018). (Capitalization omitted.) Like the trial court, we find these
arguments unavailing and decline to address them in detail given the plaintiff’s
failure to provide any legal authority to support her position.
Finally, the plaintiff argues that “liability in this case is supported by the
Second Restatement of Torts, Section 324A.” (Capitalization omitted.) We have
referenced Section 324A of the Restatement (Second) of Torts in several cases
and conclude that it is consistent with our analysis of whether liability exists in
these circumstances. See, e.g., Grady v. Jones Lang LaSalle Constr. Co., 171
N.H. 203, 211 (2018); Everitt v. Gen. Elec. Co., 159 N.H. 232, 237-38 (2009);
VanDeMark v. McDonald’s Corp., 153 N.H. 753, 757 (2006); Williams v.
O’Brien, 140 N.H. 595, 599-600 (1995); Corson v. Liberty Mut. Ins. Co., 110
N.H. 210, 213-14 (1970).
Section 324A provides:
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.
Restatement (Second) of Torts § 324A, at 142 (1965). We agree with the trial
court that subsections (a) and (c) do not apply in this case. There is no
evidence in the record that anything Casella did increased the risk of harm
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presented by the existing weather conditions, and the plaintiff did not allege
that her injury occurred because she or DHMC relied upon Casella’s
undertaking.
As to subsection (b), the trial court rejected the plaintiff’s assertion that
Casella owed her a duty, reasoning that
[t]he evidence in the record establishes that Casella did not
“completely subsume or supplant” DHMC’s duty to keep its
property free from unreasonable risks of harm. In fact, the
Contract is clear that Casella was only responsible for clearing
snow in certain designated areas and was only to apply sand
and/or salt to the extent directed by DHMC, otherwise DHMC was
solely responsible for sanding and/or salting the premises.
Further, Casella was not expected to “spontaneously” respond to a
winter weather event, nor was it expected to inspect the DHMC
property between visits. Based on this evidence, it is clear that
Casella did not completely assume DHMC’s duty to the plaintiff, as
contemplated by subsection (b).
(Record citation omitted.)
To the extent the trial court reasoned that there is no duty under
subsection (b) because Casella did not assume DHMC’s entire responsibility to
keep its property free from unreasonable risks of harm, we disagree. Here, it is
undisputed that Casella contracted with DHMC to render snowplowing services
for specific areas of DHMC’s property. In doing so, the defendant “under[took]
to perform a duty owed by” DHMC to the plaintiff. Restatement (Second) of
Torts § 324A(b); see Plank v. Union Elec. Co., 899 S.W.2d 129, 131 (Mo. Ct.
App. 1995) (explaining that “the apparent rationale behind § 324A(b)” is that it
“is reasonable to place liability upon a party who has clearly undertaken
primary responsibility for services upon which third parties depend”); Canipe v.
National Loss Control Service Corp., 736 F.2d 1055, 1062-63 (5th Cir. 1984)
(stating that “[s]ubsection (b) comes into play as long as the party who owes the
plaintiff a duty of care has delegated to the defendant any particular part of
that duty”).
Whether DHMC directed Casella to apply sand and salt to the parking lot
where the plaintiff was injured raises a genuine issue of material fact which
precludes the entry of summary judgment. The evidence in the record shows
that Casella agreed to provide all services in accordance with the guidelines.
According to those guidelines, “[s]alting and sanding will be done by DHMC
unless assistance is asked and direction given by the DHMC Grounds
Supervisor or his designee.” The DHMC employee responsible for overseeing
snow removal at the hospital stated in his deposition that, at the beginning of
the winter plowing season, “the ground supervisor would work with the
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contractor so that they understood what parts they were responsible for
sanding and salting,” and that during a snowstorm, the snowplow contractor
would automatically sand and salt as part of that job.
Thus, although Casella asserts that under “the division of responsibilities
between [it] and DHMC . . . Casella was responsible for snow removal and
DHMC was responsible for sanding and salting,” viewing the evidence in the
light most favorable to the plaintiff, we conclude that an issue of material fact
exists about the scope of Casella’s undertaking for purposes of subsection (b).
Accordingly, we reverse the entry of summary judgment to Casella and remand
for further proceedings consistent with this decision.
Affirmed in part; reversed
in part; and remanded.
HICKS and DONOVAN, JJ., concurred.
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