Personal Injury Law

At-a-Glance Contributor Sarah E. Lavoie Partner at Burns, Bryant, Cox, Rockefeller & Durkin Dover, NH

At-a-Glance Contributor
Sarah E. Lavoie
Partner at: Burns, Bryant, Cox, Rockefeller & Durkin Dover, NH

 No. 2018-0425

October 16, 2019

Affirmed in Part, Reversed in Part and Remanded

  • Whether the trial court erred in finding that the defendant snowplowing contractor owed no duty of care to a plaintiff injured in her employer’s parking lot under Section 324A of the Restatement (Second) of Torts.

The plaintiff was injured in a fall on ice in an employee parking lot on her way into work. As a result, the plaintiff filed a lawsuit against the defendant snow plowing contractor hired by her employer. The plaintiff alleged that it had snowed the night before the fall, some of the snow had melted and refrozen overnight and that there was no sand or ice melt applied to the lot. The defendant and the plaintiff’s employer had a snow plowing contract whereby the defendant provided snow removal and coordinated with the plaintiff’s employer to provide all services in accordance with snow plowing guidelines attached to the contract. The guidelines provided that the employer would perform salting and sanding unless assistance was requested and direction given by the employer’s grounds supervisor or his designee and that salt was to be applied at the start of plowing and during a storm. The defendant was to apply salt and/or sand only as directed by the employer’s grounds supervisor or his designee and employee lots were to be kept plowed as clear as possible and accessible at the start of each shift change and salt applied to parking lots prior to or at the start of a storm and after storm cleanup or as directed by the employer’s ground supervisor or his designee. The plaintiff alleged that the defendant had a duty to employ reasonable care to maintain the premises in a reasonably safe condition for those like her who used the premises for the intended purposes and that the defendant breached its duty and was negligent and careless in failing to maintain the premises in a reasonably safe condition. The trial court found that the defendant owed the plaintiff no duty of care and therefore, granted the defendant’s motion for summary judgment.

On appeal, the plaintiff argued that the defendant owed her a duty of care for four reasons: mutuality of interest between the plaintiff and her employer, the rule set forth in Hungerford v. Jones (1998), public policy and Section 324A of the Restatement (Second) of Torts. The Court agreed with the trial court’s rejection of the plaintiff’s arguments on public policy, Hungerford, mutuality of interest, and subsections a and c of the Restatement. However, the Court disagreed with the trial court’s finding that there was no duty under subsection b of the Restatement because it was undisputed that the defendant contracted with the plaintiff’s employer to provide snowplowing services for specific areas of the property and in doing so undertook to perform a duty owed by the employer to the plaintiff. Whether the employer directed the defendant to apply sand and salt to the parking lot in question raised a genuine issue of material fact which precluded the entry of summary judgment. The evidence showed that the defendant agreed to provide all services in accordance with the contract guidelines which provided that salting and sanding will be done by the employer unless assistance is requested and direction given by the employer’s grounds supervisor or his designee. The employee responsible for overseeing snow removal for the employer testified that at the beginning of the plowing season the ground supervisor would work with the defendant so that they understood what parts they were responsible for sanding and salting and that during a snowstorm, the defendant would automatically sand and salt as part of that job. Therefore, the Court found that a genuine issue of material fact remained regarding the scope of the defendant’s undertaking for the purposes of subsection b of the Restatement.

Shaughnessy Raiche, of Bedford (Brian C. Shaughnessy on the brief and orally), for the plaintiff. Morrison Mahoney, of Manchester (Joseph G. Yannetti on the brief and Brian A. Suslak on the brief and orally) for the defendant.