A recent court decision a reminder for businesses to revisit their snow removal agreements.

By Kevin G. Collimore, Esq.

The New Hampshire Supreme Court recently issued an opinion in a premises liability case that reinforces contractor liability in the carrying out of a property owner’s non-delegable duty to maintain a safe premises.

In Eileen Bloom v. Casella Construction, Inc. (2018-0425, issued October 16, 2019), an employee of Dartmouth Hitchcock (DHMC) was injured when she slipped and fell in the DHMC parking lot in the wintertime.  Significant to the issues before the Court, the plaintiff asserted there was “‘no sand [or] ice melt applied to the lot,’ despite the fact 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.”

The workers’ compensation statutes barred any bodily injury claim by the plaintiff against DHMC so she sued Casella, the plow contractor hired to provide wintertime plowing services.  The “Snow Plowing Agreement” between Casella and DHMC provided in pertinent part that Casella agreed “to coordinate with [DHMC] to provide all [wintertime plow] services.”  In an incorporated “Guideline” document, the Agreement further specified 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”; and Casella “shall apply salt and/or sand only as directed by the DHMC Grounds Supervisor or his designee.” 

The trial court granted Casella summary judgment finding no duty was owed to the plaintiff because she was not a third party beneficiary of the Agreement, and because the plaintiff’s argument based on a “mutuality of interests” was unavailing. It also rejected the plaintiff’s claim that the Section 324A of the Restatement (Second) of Torts applied to establish that Casella owed the plaintiff a duty of care.  Specifically, the trial court found that subsection (b) (finding a duty may be owed to a third party where one has "undertaken to perform a duty owed by the other to the third person") was not applicable because the Agreement established Casella did not “completely subsume or supplant” DHMC’s duty and that Casella was only responsible to apply sand and/or salt to the extent directed by DHMC. 

The Supreme Court found there was a disputed issue of material fact precluding summary judgment.  The Court referenced testimony that at the beginning of the season:  

the [DHMC] ground supervisor would work with [Casella] 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). . . . 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. (emphasis added)

Presumably, on remand, if DHMC is found to have directed Casella to automatically salt and sand the area at issue, then Casella would have had a contractual obligation to adhere to those directions.  Casella would thereby have “undertaken to perform a duty owed by the other to the third person” respecting salting and sanding, and would owe a corresponding duty to the plaintiff. Conversely, if DHMC did not instruct Casella to salt and sand that area, Casella would neither have a contractual obligation to do so nor would it owe a duty to a third party to do so, and any negligence in making that salting and sanding determination would lie with DHMC (which claim would be barred by the workers’ compensation statutes). 

As is always true, contractors should periodically review the terms of their contracts to ensure responsibilities are clearly and specifically delineated.  But, they should also review their operational methods to ensure that the methods ultimately support the intent of the contracts they enter.      

You can read the New Hampshire Supreme Court opinion by following the link below.

https://www.courts.state.nh.us/supreme/opinions/2019/index.htm