Pub. 2 2020 Issue 2

NH Supreme Court's Decision Expands the Scope of Liability for SnowRemoval Contractors T he New Hampshire Supreme Court recently issued a decision involving the liability of contractors performing snow removal services for landowners. Before this decision, snow removal contractors argued successfully that they did not owe a duty to third parties injured on the premises if the contractor did not completely assume the landowner's duty to keep the premises safe. The Court's decision expanded the scope of liability for snow removal contractors in carrying out snow removal services, finding that contractors likely did owe a duty to third parties even if they only assumed part of a landowner's duty. In Eileen Bloom v. Casella Construction, Inc. (No. 2018- 0425, issued October 16, 2019), a nurse employed at Dartmouth-Hitchcock Medical Center (DHMC) slipped and fell in the DHMC employee parking lot. 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." At the time of the plaintiff's accident, DHMC had a "Snow Plowing Agreement" (the Contract) with Casella Construc- tion, Inc. (Casella) 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" (the Guidelines) attached to the Contract. The Guidelines specified "[s]alting and sanding will be done by DHMC unless assistance is asked and direction given by the DHMC Grounds Supervisor or his designee"; and Casella "shall apply salt and/or sand only as directed by the DHMC Grounds Supervisor or his designee." The plaintiff did not bring suit against DHMC since her employer enjoyed statutory immunity from workplace inju- ries under the workers' compensation statute. She filed suit only against Casella claiming that it "was negligent and care- less in failing to maintain the premises in a reasonably safe condition." Casella moved for summary judgment on the grounds that it owed no duty of care to the plaintiff. The trial court granted Casella' s motion and the plaintiff appealed. On appeal, the plaintiff argued that a duty existed on the basis of: (1) mutuality of interest between the plaintiff and DHMC; (2) the rule set forth in Hungerford v. Jones, 143 N.H. 208 (1998); and (3) public policy. The plaintiff also argued that Section 324A of the Restatement (Second) of Torts provided for liability under the circumstances. The Supreme Court affirmed in part, reversed in part, and remanded. The Court rejected the plaintiffs mutuality of interest argument, found that the Hungerford case was inap- plicable under the circumstances presented, and refused to address the plaintiff's unavailing public policy argument. The Court then addressed the plaintiff's argument that "lia- bility in this case is supported by the Second Restatement of Torts, Section 324A." 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. The Court agreed with the trial court's determination that subsections (a) and (c) did not apply, indicating that the there was "no evidence in the record that anything Casella did increased the risk of harm 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." The Court disagreed, however, with the trial court's finding that there was no duty under subsection (b) because Casella did not assume DHMC's D R I V E 8