Everitt v. Gen. Elec. Co.
| Decision Date | 07 August 2009 |
| Docket Number | No. 2008–763.,2008–763. |
| Court | New Hampshire Supreme Court |
| Parties | Sarah EVERITT v. GENERAL ELECTRIC COMPANY and another. |
Thomas Craig, P.A., of Manchester (Thomas E. Craig and David Woodbury, on the brief, and Mr. Woodbury orally), for the plaintiff.
Sulloway & Hollis, P.L.L.C., of Concord (Edward M. Kaplan and Melissa M. Hanlon, on the brief, and Mr. Kaplan orally), for the defendants.
The plaintiff, Sarah Everitt, appeals an order of the Superior Court (McGuire, J.) granting summary judgment to the defendants, General Electric Company (GE) and Bruce A. Hawkom. We affirm.
This is the second time this matter has come before us. A detailed account of the underlying facts of this case can be found in our previous decision, Everitt v. General Electric Company, 156 N.H. 202, 932 A.2d 831 (2007). We recite only those facts pertinent to this appeal.
On November 1, 2003, the plaintiff was injured when the vehicle in which she was a passenger was struck by another vehicle, driven by Jeremiah Citro. Citro was an employee of GE's Hooksett plant, but was not on duty at the time of the accident. The day prior to the accident, a Friday, Citro was sent home by a GE company nurse after appearing confused and disoriented. He was instructed not to return to work until the following Monday.
Despite this instruction, Citro appeared for work the next day, the day of the accident. Upon his arrival, his presence was brought to the attention of Hawkom, a supervisor on duty at that time. Hawkom reminded Citro that he was told not to return to work until Monday. According to Hawkom, the defendant appeared disheveled and his speech was slurred. Although Citro agreed to leave, he failed to do so, and Hooksett police were called to remove him from the premises. Citro, however, left before the police arrived.
Within hours Citro again arrived at the gates of the GE plant, where he was detained by security personnel and Hooksett police were summoned. The responding police officers conducted several field sobriety tests, and ultimately determined that Citro could safely drive. Approximately two hours later, the motor vehicle accident involving Citro and the plaintiff occurred.
The plaintiff instituted suit against GE and Hawkom asserting that each owed her a duty of care to prevent Citro from operating his motor vehicle on the day of the accident. The defendants moved for summary judgment, which the trial court granted. After her motion for reconsideration was denied, the plaintiff filed this appeal.
When reviewing a trial court's grant of summary judgment, we consider the affidavits and other evidence, and inferences properly drawn from them, in the light most favorable to the non-moving party. Belhumeur v. Zilm, 157 N.H. 233, 235, 949 A.2d 162 (2008). If our review of the evidence does not reveal any genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the trial court's decision. Id. We review the trial court's application of the law to the facts de novo. Maloney v. Badman, 156 N.H. 599, 602, 938 A.2d 883 (2007).
On appeal, the plaintiff first argues that GE voluntarily assumed a duty of care towards her by adopting a guideline or policy requiring that impaired employees not be allowed to drive. The policy, titled "Reasonable Suspicion/Reasonable Cause Guidelines," outlines the procedure that should be followed when a manager suspects that an employee is impaired. The relevant portion of the policy provides:
The defendants dispute that this policy is applicable to GE's Hooksett plant, and argue that, even if applicable, the policy does not impose a legal duty upon them to detain Citro and prevent him from driving. The plaintiff, however, contends that the applicability of this policy, as well as its effect upon the duty owed to her, is a question of material fact and, thus, it was error for the trial court to grant summary judgment to the defendants.
Belhumeur, 157 N.H. at 236–37, 949 A.2d 162 (quotation and brackets omitted).
Assuming, without deciding, that the policy applies to GE's Hooksett plant and, further, that the policy was not followed in dealing with Citro on the day of the accident, we conclude that the mere existence of this policy did not create a duty of care to the plaintiff. Although we have never before addressed this precise issue, numerous jurisdictions have found that the adoption of an internal corporate policy to deal with situations involving an impaired employee does not give rise to a duty to the general public. See, e.g., Angnabooguk v. State, 26 P.3d 447, 452 (Alaska 2001) (); Morgan v. Scott, 2009 WL 1438905, *3 (); Premo v. General Motors Corp., 210 Mich.App. 121, 533 N.W.2d 332, 333 (1995) (); Estate of Catlin v. General Motors Corp., 936 S.W.2d 447, 451 (Tex.Ct.App.1996) (); Killian v. Caza Drilling, Inc., 131 P.3d 975, 982 (Wyo.2006) ().
For example, in Estate of Catlin, the Texas Court of Appeals found that the adoption of a policy prohibiting the consumption of alcohol on an employer's premises with certain exceptions, and the failure to follow such policy, did not create a legal duty. Estate of Catlin, 936 S.W.2d at 451. In that case, an employee of Fluor Daniel became intoxicated at a "fish fry" on company property following a company softball game. Id. at 448–49. The employee left company grounds and, after consuming more alcohol at a bar, caused a motor vehicle accident resulting in Catlin's death. Id. at 449. At that time, Fluor Daniel had "a safety policy which forbade the consumption of alcohol on company property except at company sponsored events," and instituted formal procedures to be followed when there would be alcohol at such an event, which were not followed on this occasion. Id. at 449–50. Catlin's estate sued Fluor Daniel, arguing that, by creating this policy, it "assumed the responsibility to control consumption of alcohol on its premises and subsequent driving by its employees." Id. at 451. The court disagreed, stating: "We conclude that the mere creation of an internal policy regarding consumption of alcohol on the premises, whether or not the fish fry was a ‘company function,’ does not create a duty as set forth in [prior case law]." Id. The court noted that "[m]ore is required" to impose a duty. Id.
Similarly, Premo involved an intoxicated General Motors employee who had allegedly been drinking while on duty and, immediately after, caused a motor vehicle accident in which Premo was injured. Premo, 533 N.W.2d at 332. Premo alleged that General Motors "had a policy or ‘practice, procedure and/or custom’ of not allowing employees to leave the plant in their automobiles while intoxicated, but instead detaining them and arranging alternative transportation" home. Id. Premo thus argued that, by instituting this policy, General Motors had assumed a duty to prevent the intoxicated employee from driving in his intoxicated state. Id. at 333. The court disagreed, finding that General Motor's internal policy did not, as a matter of public policy, amount to an assumption of a duty to protect the public at large. Id. The court recognized the "significant and compelling public policy reasons" supporting its conclusion, stating: "To impose liability upon an employer who, by means of work rules, policies, etc. undertakes to address the problem of alcohol use and/or abuse is clearly against public policy and would encourage employers to abandon all efforts which could benefit such employees in order to avoid future liability." Id. The court thus concluded that the relationship between the parties was too remote to obligate General Motors to protect Premo. Id.
We find these cases persuasive, and likewise conclude that the mere existence of an internal policy setting forth procedures to deal with an...
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