Arthur v. Holy Rosary Credit Union, 93-455

• Decision Date: 28 March 1995
• Docket Number: No. 93-455,93-455
• Citation: 139 N.H. 463,656 A.2d 830
• Parties: Robert J. ARTHUR v. HOLY ROSARY CREDIT UNION.
• Court: New Hampshire Supreme Court

Page 830

656 A.2d 830

139 N.H. 463

Robert J. ARTHUR v. HOLY ROSARY CREDIT UNION.

No. 93-455.

Supreme Court of New Hampshire.

March 28, 1995.

Law Offices of David J. KillKelley, P.C., of Laconia (David J. KillKelley on the brief and orally), for plaintiff.

Ouellette, Hallisey, Dibble and Tanguay, P.A., of Dover (Robert T. Mittelholzer on the brief and orally), for defendant.

HORTON, Justice.

The plaintiff, Robert J. Arthur, appeals an order of the Superior Court (Mohl, J.), granting the motion of the defendant, Holy Rosary Credit Union (Holy Rosary), for a directed verdict on all counts of the plaintiff's negligence claim. We affirm in part, reverse in part, and remand.

Holy Rosary hired Credit Union Building Corporation (CUBC) to oversee and coordinate the construction, design, and furnishing of its new building in Rochester. CUBC charged a fee of three-and-one-half percent of the approximately $650,000 cost of construction. Although CUBC did not involve itself in the manner or means of construction, as project manager it inspected the construction on a weekly basis. CUBC helped Holy Rosary select Whitcher Builder, Inc., a New Hampshire construction firm with over twenty-six years of experience, as the general contractor for the construction project. Whitcher Builder was the lowest bidder for the job. The plaintiff was an employee of Whitcher Builder.

On the day of the injury, Whitcher Builder directed the plaintiff to work on an unfinished roof, which was also the floor deck for the second story. The plaintiff was to assist in covering the concrete deck with polyethylene so that the concrete would cure. The stairwell hole to the first floor was covered only by polyethylene and had not yet been covered with plywood or planks. The plaintiff injured his back by falling through this hole into the basement twenty-three feet below. The plaintiff received workers' compensation benefits. He also sued Holy Rosary essentially asserting that (1) the construction work was an inherently dangerous activity which created a non-delegable duty in Holy Rosary, (2) CUBC was Holy Rosary's agent and negligently controlled Whitcher Builder, and (3) Holy Rosary was negligent in selecting Whitcher Builder as a contractor. The trial judge granted Holy Rosary's motion for a directed verdict on all counts at the close of the plaintiff's case, ruling that the construction work was not, as a matter of law, inherently dangerous, and that there was no evidence of negligent control or selection.

The plaintiff appeals, arguing that the court erred in granting the directed verdict by taking from the jury the following issues: (1) whether the work in which the plaintiff was engaged at the time of his injury was inherently dangerous, and thus created a non-delegable duty in Holy Rosary; (2) whether CUBC was Holy Rosary's agent, and whether, by acting negligently in its duties to supervise and control the construction, CUBC caused the plaintiff's injury; and (3) whether Holy Rosary negligently selected Whitcher Builder as the contractor.

"A trial court may grant a directed verdict only when the evidence and all reasonable inferences therefrom, construed most favorably to the party opposing the motion, would not enable a jury to find for that party." Cloutier v. A. & P. Tea Co., Inc., 121 N.H. 915, 920, 436 A.2d 1140, 1143 (1981) (quotation omitted). The trial court "cannot weigh the evidence or judge the credibility of the witnesses, and, if the evidence is conflicting or several reasonable inferences may be drawn, the motion for [a directed verdict] should be denied." Amabello v. Colonial Motors, 117 N.H. 556, 561, 374 A.2d 1182, 1185 (1977). The plaintiff's claim must be found to be "completely without merit." Cloutier, 121 N.H. at 920, 436 A.2d at 1143. This court will uphold a trial court's decision to grant a motion for a directed verdict unless the trial judge abused his or her discretion in determining that no rational juror could find for the party against whom the motion is filed. Vincent v. Public Service Co. of N.H., 129 N.H. 621, 625, 529 A.2d 397, 399 (1987).

The plaintiff first contends that the trial court erred by not permitting the jury to decide whether the roof work was inherently dangerous. Respondeat superior, or vicarious liability, ordinarily does not extend to torts by independent contractors because the employer reserves no control or power of discretion over the execution of the work. Carter v. Berlin Mills Co., 58 N.H. 52, 53-54 (1876). We have long recognized an exception to this general rule when the independent contractor is engaged to perform work that is dangerous in itself. Thomas v. Harrington, 72 N.H. 45, 46-47, 54 A. 285, 286 (1903). The inherent danger exception applies only when "[t]he danger [arises] directly from the work ... required to be done, and not from the negligent manner of its performance." Id. "[T]he phrase 'inherently dangerous' as applied to undertakings conducted through independent contractors often implies work that is dangerous even when conducted with reasonable care; ... the exception relating to such undertakings has been principally applied in cases of demolition, excavation, and other clearly dangerous activities." Carr v. Merrimack Farmers Exchange, 101 N.H. 445, 449, 146 A.2d 276, 279 (1958).

The inherent danger doctrine applies only where the alleged danger is "naturally to be apprehended" by the defendant at the time it engages the independent contractor to perform the work. See Thomas, 72 N.H. at 46, 54 A. at 286; Restatement (Second) of Torts § 427, comment d at 417 (1965). "[W]hether an activity is inherently dangerous is a question of fact to be determined by the trier of fact." Elliott v. Public Service Co. of N.H., 128 N.H. 676, 682, 517 A.2d 1185, 1189 (1986). If the activity is, in fact, inherently dangerous, "one who undertakes [it] has a non-delegable duty to protect third parties against injury resulting from that activity." Id. at 679, 517 A.2d at 1187.

The trial judge ruled that the plaintiff failed to establish a claim under the inherently dangerous activity doctrine because the danger here arose not directly from the work required to be done, but from the negligent manner of its performance by Whitcher Builder. See Elliott, 128 N.H. at 679, 517 A.2d at 1187. The trial judge noted that to consider

[t]he activity in and of itself ... as inherently dangerous ... would literally make the construction of every commercial or residential building in this [S]tate an inherently dangerous activity rendering the owner liable for the negligence of the contractor, and it seems to me that I cannot read that into the Elliott case.

We agree that construction projects, typically fraught with a variety of potential dangers that may arise if the work is not carefully done, do not, as a rule, fall within the inherently dangerous category. We hold that to be an inherently dangerous activity, construction, or any other work, must be dangerous in and of itself and not dangerous simply because of the negligent performance of the work, and that the danger must be naturally apprehended by the parties when they contract. See Thomas, 72 N.H. at 46-47, 54 A. at 286. Only then will the work constitute an inherent danger that places a non-delegable duty upon the one ordering it to protect third parties against resulting injury.

A review of the record indicates that the danger Whitcher Builder caused by first covering the hole with plastic instead of wood was not a "necessary and anticipated part of...