Paquette v. Joyce
| Decision Date | 24 October 1977 |
| Docket Number | No. 7807,7807 |
| Citation | 379 A.2d 207,117 N.H. 832 |
| Parties | , 100 A.L.R.3d 505 Wayne PAQUETTE v. Norman L. JOYCE et al. |
| Court | New Hampshire Supreme Court |
Wiggin & Nourie, and Gordon A. Rehnborg, Jr., Manchester, for plaintiff.
Sulloway, Hollis, Godfrey & Soden, and Fred L. Potter, Concord, for defendants.
This is an action on the case brought by the plaintiff to recover damages for personal injuries arising out of an automobile accident that occurred on August 23, 1972. After the writ was entered the defendants filed a motion to dismiss on the grounds that the plaintiff's writ failed to state a cause of action. The case was submitted to a master (Leonard C. Hardwick, Esq.) on an agreed statement of facts and the master recommended that the motion to dismiss be granted. The Court (Batchelder, J.) approved the master's recommendation and granted the motion. All questions of law raised by the motion to dismiss were reserved and transferred.
The facts agreed to by the parties are as follows: On August 23, 1972, the plaintiff was a passenger in a motor vehicle being operated in a northerly direction on White Oaks Road, a public highway in the city of Laconia, when the vehicle left its lane of travel, crossed the roadway and collided with a stump. The accident occurred at a point where the road curved sharply to the east. There was a traffic sign indicating that the highway so curved.
The defendants were the owners of the land abutting the highway at the location of the accident. When they acquired the premises in 1962 there was a tree located a little over six feet from the edge of the highway. In October of 1970 the defendants requested the city to remove the tree because of its deteriorated condition, but were advised that the city could not respond to their request for several years. Consequently defendants caused the tree to be removed leaving a stump about three feet high which was thereafter used as a decorative planter. The parties cannot agree whether the stump was located within the limits of the public way or within the defendants' premises.
Between the time the defendants first occupied the premises and October 1970, there were several occasions when vehicles left the highway and entered defendants' premises, on one occasion striking a tree and on another a fence maintained by the defendants. The parties did not agree whether any of these prior accidents involved the tree which had previously stood at the location of the stump.
The plaintiff's declaration alleged that the defendants negligently maintained the tree stump in a location within close proximity to the highway and that the defendants knew or should have known that the stump created an unreasonable risk to those using the highway. It is a question of law for determination by the court whether the defendants' conduct created such a foreseeable risk of harm to the particular plaintiff that defendant was under a duty to avoid it. Deem v. Newmarket, 115 N.H. 84, 333 A.2d 446 (1975); Jelly v. LaFlame, 108 N.H. 471, 238 A.2d 728 (1968); W. Prosser, The Law of Torts § 53 (4th ed. 1971).
In support of the proposition that the owner of land owes a duty to remove conditions that involve an unreasonable risk to users of the highways, plaintiff relies on the Restatement of Torts (Second) § 368, which provides:
Our cases have adopted the position of the Restatement and have held a landowner liable when he creates or maintains structures or other artificial conditions which he should realize involve an unreasonable risk to those who foreseeably deviate from the highway. Chickering v. Thompson, 76 N.H. 311, 82 A. 839 (1912); White v. Suncook Mills, 91 N.H. 92, 13 A.2d 729 (1940); Paine v. Hampton Beach Improvement Co., 98 N.H. 359, 100 A.2d 906 (1953).
The plaintiff's position is not that the defendants were under a duty to remove the tree that originally stood near the highway, apparently recognizing that the rule imposing liability on a landowner to travelers on the highway extends only to artificial conditions. Rather plaintiff contends that by cutting down the tree and leaving a stump defendants created and permitted to remain an artificial condition unreasonably dangerous to users of the highway.
The defendants' conduct in removing the deteriorated tree and leaving a stump in its place did not involve an unreasonable risk to users of the highway. The tree stump had no greater propensity to cause harm to users of the highway in the ordinary course of travel than did the tree. Plaintiff argues that the defendants should have foreseen a danger because other cars had gone off the road in this proximity in the past. But the risk of impact with the object existed whether there was a tree or stump at the location; the foreseeability of this hazard has no tendency toward imposition of a duty to refrain from cutting down the tree and permitting a stump to be maintained in its place.
Construing plaintiff's complaint most favorably it could be contended that the risk created by defendants' conduct was to reduce the visibility of the object. But even assuming that the obstacle now became less visible, this would not contribute to its propensity to cause harm. The stump was not hazardous because it presented a hidden trap to those who stray from the highway. Compare White v. Suncook Mills, 91 N.H. 92, 13 A.2d 729 (1940) (hole); Durst...
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