Rounds v. Standex Intern.

• Decision Date: 04 November 1988
• Docket Number: No. 87-308,87-308
• Citation: 550 A.2d 98,131 N.H. 71
• Parties: Richard N. ROUNDS et al. v. STANDEX INTERNATIONAL et al.
• Court: New Hampshire Supreme Court

Page 98

550 A.2d 98

131 N.H. 71

Richard N. ROUNDS et al. v. STANDEX INTERNATIONAL et al.

No. 87-308.

Supreme Court of New Hampshire.

Nov. 4, 1988.

Shaheen, Capiello, Stein & Gordon, and Laura L. Hall, Concord (Steven M. Gordon and Laura L. Hall on the brief, and Steven M. Gordon orally), for plaintiff Richard Rounds.

Law Offices of Kenneth G. Bouchard, Manchester (Kenneth G. Bouchard and Paul B. Kleinman on the brief, and Kenneth G. Bouchard orally), for defendant Ralph P. White.

Orr and Reno P.A., Concord (Peter W. Mosseau on the brief and orally), for defendants Joseph Wirtz, Frank Stewart and Carl Patten.

Burns, Bryant, Hinchey, Cox and Shea P.A., Dover (James H. Schulte on the brief), by brief for Stephen M. Buslovich, as amicus curiae.

Devine, Millimet, Stahl & Branch P.A., Manchester (Andrew D. Dunn on the brief), by brief for James F. Watkins, as amicus curiae.

Orr & Reno P.A., Concord (Peter W. Mosseau on the brief), by brief for Howard Williams, as amicus curiae.

BROCK, Chief Justice.

The plaintiff, Richard N. Rounds, appeals an order of the Superior Court (Gray, J.) dismissing his negligence action against the defendants Ralph P. White, Joseph Wirtz, Frank Stewart and Carl Patten, for injuries sustained by Rounds during the course of his employment at Troy Mills, Inc., where the defendants also were employed. For the reasons that follow, we affirm.

In December 1984, plaintiff Rounds was injured while operating a textile-rolling machine at Troy Mills, and he received workers' compensation benefits as a consequence. In January 1985, the plaintiffs brought a products liability action against Standex International, the successor to the company that had manufactured the Troy Mills textile-rolling equipment.

In August 1985, this court decided Estabrook v. American Hoist & Derrick, Inc., 127 N.H. 162, 498 A.2d 741 (1985), which invalidated the statutory bar to actions against co-employees for non-intentional torts, id. at 178, 180, 498 A.2d at 751-52; see RSA 281:12, II; see also RSA 281:14, I. Thereafter, the plaintiffs amended their writ to include as defendants White, Wirtz, Stewart, and Patten, who were, respectively, the Troy Mills president, director of personnel responsible for safety, foreman in charge of Rounds' shift, and plant engineer. As to each individual defendant, the assertions were identical. The plaintiffs claimed: (1) that each defendant had "a duty to provide plaintiff Rounds with a safe workplace and to exercise reasonable care to prevent injury"; (2) that each breached that duty in requiring Rounds to work on a machine that was unreasonably dangerous because its safety devices had been disabled, in failing to display warnings of the machine's hazards, in failing to train and supervise Rounds properly, in failing to appoint a committee or inspector to oversee plant safety, and in failing to enforce industry safety standards; and (3) that the breach caused Rounds' injuries. In addition to the claims of Rounds himself, the writ contained his wife's claims for loss of consortium and services, and his children's claims for loss of companionship, society, comfort and services.

The defendants moved for dismissal of the claims of Rounds and his children for failure to state causes of action. They contended that the essence of Rounds' complaint was their alleged breach of the duty to maintain a safe workplace, which duty obligated Troy Mills as employer, but not the defendants. Because, moreover, none of the four had been involved directly in the accident that resulted in Rounds' injuries, the defendants asserted that there was no alternative basis for the negligence claims against them. The trial court granted the defendants' motions to dismiss, ruling as to Rounds' claims that the duty to maintain a safe workplace is the nondelegable duty of the employer and that, because none of the defendants was Rounds' employer, they owed him no such duty.

On appeal, Rounds asserts error in the trial court's dismissal of his claims, arguing that an employee has a duty of reasonable care toward fellow employees and, depending upon the circumstances of employment, may therefore have a duty apart from the employer's to provide and maintain a safe workplace. Before we consider the merits of Rounds' contention, we address two preliminary matters. We note, first, that the focal issue before either a trial court considering a motion to dismiss, or this court upon review of an order granting such a motion, is " 'whether the allegations [in the plaintiff's pleadings] are reasonably susceptible of a construction that would permit recovery.' " Collectramatic, Inc. v. Kentucky Fried Chicken Corp., 127 N.H. 318, 320, 499 A.2d 999, 1000 (1985) (quoting Royer Foundry & Mach. Co. v. N.H. Grey Iron, Inc., 118 N.H. 649, 651, 392 A.2d 145, 146 (1978)). That determination requires the court to assume the truth of the plaintiff's allegations of fact and to construe all reasonable inferences therefrom most favorably to the plaintiff. Id.

As a second preliminary matter, we wish to dispense with any question that may have arisen as to the import in this case of our decision in Young v. Prevue Products, Inc., 130 N.H. 84, 534 A.2d 714 (1987), which was issued a few months after the plaintiff filed this appeal. In Young, we upheld the constitutionality of the second part of RSA 281:12, II, which bars consortium actions by an employee's spouse against the employer. Id. at 88, 534 A.2d at 717. In so doing, we declined to apply the quid pro quo analysis on which a majority of the court had relied in Estabrook v. American Hoist & Derrick, Inc., 127 N.H. 162, 172-73, 498 A.2d 741, 747 (1985); Young, 130 N.H. at 88, 534 A.2d at 717. In Estabrook, the court invalidated the first part of RSA 281:12, II, an amendment which prohibits actions against co-employees for non-intentional torts, by finding that due process under part I, article 14 of the New Hampshire Constitution required a quid pro quo or an adequate substitute for the common law right to sue a co-employee. Estabrook, supra 127 N.H. at 172-73, 498 A.2d at 751. To determine the existence of an adequate quid pro quo, the majority constructed an analysis which asked whether the rights extinguished by the statutory amendment had a substantial or fundamental relationship to rights affected by the original act. If they did, the question became whether the workers' compensation law as a whole provided an adequate substitute remedy; if no such relationship existed, however, the question was whether an adequate quid pro quo was provided at the time the rights were abolished. Id. The practical effect of the Estabrook analysis was to require that every amendment barring a common law or statutory right include a contemporaneously provided substitute remedy, which we later decided in Young "could result in unfairness and lead to anomalous results where the purpose of the deprivation is to restore the balance of the general quid pro quo." Young, supra 130 N.H. at 88, 534 A.2d at 717; see also Thone v. Liberty Mutual Insurance Co., 130 N.H. 702, 549 A.2d 778 (1988). Therefore, in Young we overruled the Estabrook holding to the extent that it might be interpreted as requiring a contemporaneously enacted quid pro quo provision whenever an amendment to the workers' compensation law would curtail previously existing rights of action, observing that workers' compensation laws generally withstand due process challenges because they " 'provide a quid pro quo for potential tort victims whose ... rights of action are supplemented by the statute.' " Young, supra 130 N.H. at 87-88, 534 A.2d at 717 (quoting Park v. Rockwell International Corp., 121 N.H. 894, 898, 436 A.2d 1136, 1138 (1981)).

Defendant White has contended, both in his brief and during oral argument, that the effect of Young, in overruling the Estabrook quid pro quo analysis, was to revive the statutory prohibition against co-employee actions for non-intentional torts. Although Young overruled the Estabrook quid pro quo analysis, it did not overrule the entire decision. Defendant White is erroneous in his assertion that, by abandoning the Estabrook analysis, we in effect held the first part of RSA 281:12, II constitutional. We give no opinion as to whether that provision, or a reenactment thereof by the legislature, would be unconstitutional if we were to consider it under the Young analysis. We therefore turn to the substance of Rounds' assertion: namely, that each of the defendants incurred liability for Rounds' injuries by breaching a duty to provide a safe workplace.

An employee who receives benefits under the workers' compensation law for work-related injuries may also bring an action against a fellow employee for the same injuries, where the co-employee has incurred "a legal liability to pay damages in respect thereto." RSA...