Guitarini v. Macallen Co.

• Decision Date: 07 April 1953
• Citation: 95 A.2d 784,98 N.H. 118
• Court: New Hampshire Supreme Court
• Parties: GUITARINI et al. v. MACALLEN CO.

Page 784

95 A.2d 784

98 N.H. 118

GUITARINI et al. v. MACALLEN CO.

Supreme Court of New Hampshire.

April 7, 1953.

Henry M. Fuller, Portsmouth, for plaintiffs.

Richard E. Shute, Exeter, for defendant.

GOODNOW, Justice.

Claims for negligence rest primarily upon a violation of some duty owed by the offender to the injured party. Duncan v. Lumbermen's Mutual Casualty Company, 91 N.H. 349, 350, 23 A.2d 325. 'If there is no duty, there is no negligence'. Stevens v. City of Manchester, 81 N.H. 369, 127 A. 873. The sole question presented here is whether one who undertakes to employ an independent contractor owes a duty, to such persons as may thereafter furnish labor and materials on the order of the contractor in the performance of the work, to exercise ordinary care in selecting a contractor who is competent to perform his financial obligations to those persons.

The relation of the parties determines whether any duty to use due care is imposed by law upon one party for the benefit of another. 'If there is no relationship, there is no duty.' Garland v. Boston & Maine Railroad, 76 N.H. 556, 565, 86 A. 141, 142, 46 L.R.A.,N.S., 338. The plaintiffs assert that such a relationship exists between a subcontractor and the employer of an independent contractor as to impose a duty upon the employer to select a contractor of financial competency. In support of this position, they urge an extension of the doctrine that requires one who employs an independent contractor to do work which involves risk of bodily harm to others unless skillfully and carefully done to exercise reasonable care in selecting a competent contractor, Restatement, Torts, § 411.

This contention overlooks one of the important bases on which the duty is imposed in the latter situation. The third party who may be harmed if the work is not performed with due care is neither aware of the risk nor can he avoid it. As between a third person in this situation and the employer who can anticipate the risk and, by the exercise of due care, avoid it, the law recognizes a relationship. It imposes the duty on the employer to use ordinary care in selecting a contractor who is competent to do the work. In the case at bar, the third party, in whose favor a duty is sought to be imposed on the employer, is the subcontractor. The risk against which protection is sought is nonpayment as a result of the contractor's breach of his contract with the subcontractor and not the contractor's lack of due care. The...