Tanguay v. Marston

• Decision Date: 06 January 1986
• Docket Number: No. 84-594,84-594
• Citation: 127 N.H. 572,503 A.2d 834
• Parties: Walter TANGUAY v. Paul MARSTON.
• Court: New Hampshire Supreme Court

Page 834

503 A.2d 834

127 N.H. 572

Walter TANGUAY v. Paul MARSTON.

No. 84-594.

Supreme Court of New Hampshire.

Jan. 6, 1986.

Thomas E. Craig (orally and on brief), and Elizabeth Cazden (on brief), Manchester for plaintiff.

Devine, Millimet, Stahl & Branch P.A., Manchester (Raymond E. Liquori on brief and orally), for defendant.

KING, Chief Justice.

The plaintiff, Walter Tanguay, sued the defendant, Paul Marston, to recover for injuries sustained during the course of the plaintiff's employment with North East Cartage Co., Inc. (NEC). The defendant was NEC's president and principal shareholder. The superior court granted the defendant's motion for summary judgment, and the plaintiff appealed. We reverse.

The plaintiff was injured on NEC's business premises on June 10, 1982, while in that company's employ. Those premises were leased by NEC from the defendant, who was the company's president and principal shareholder. The plaintiff injured himself when he slipped and fell on a patch of grease in the parking area. Following his accident, the plaintiff recovered damages for his injuries from his employer, NEC, under the workers' compensation statute. RSA ch. 281. The present suit was filed against Paul Marston, individually, as owner of the premises. The Superior Court (Gray, J.) approved the Master's (R. Peter Shapiro, Esq.) recommendation to grant the defendant's motion for summary judgment and that judgment be entered for the defendant. The master found that the immunity granted employers under the workers' compensation statute, RSA 281:12 (Supp.1983), barred the plaintiff's suit against the defendant.

On this appeal, we must answer three questions: (1) whether it was proper for the master to consider depositions and additional affidavits submitted by the defendant after the hearing on the motion for summary judgment; (2) whether RSA 281:12 (Supp.1983) bars a suit against Paul Marston individually; and (3) whether an exculpation clause in the lease between the defendant and NEC bars plaintiff's suit against the defendant in his role as landowner.

I. Evidence Submitted Post-Hearing

On the day of the hearing on the summary judgment motion, the defendant submitted to the master a deposition of the plaintiff. He also submitted his own affidavit, some two weeks after the hearing. The plaintiff contends that the master should not have permitted the defendant to supplement the record in this fashion.

Motions for summary judgment are governed by statute. RSA 491:8-a. The procedure set out in RSA 491:8-a requires that motions be filed with supporting affidavits. RSA 491:8-a, II. However, there are no definite time limits for filing depositions in support of a motion for summary judgment. See RSA 491:8-a, III. This court has held that depositions need not be formally filed under RSA 517:11 with the trial court to be considered on a motion for summary judgment. Lortie v. Bois, 119 N.H. 72, 75, 398 A.2d 540, 542 (1979).

Since the statutory purpose of the summary judgment procedure is to save time, effort and expense when no genuine issue of fact exists, Lourie v. Keene State College, 121 N.H. 233, 235, 428 A.2d 902, 903 (1981), we allow the trial court considerable discretion procedurally in determining what affidavits, counter-affidavits and other evidence it will consider. See Chemical Insecticide Co. v. State, 108 N.H. 126, 229 A.2d 167 (1967).

In this case, the plaintiff may not claim surprise at the defendant's submission of the plaintiff's own deposition. Further, the affidavit of the defendant submitted after the date of the hearing on the motion for summary judgment likewise presented no facts which could have surprised or worked unfairness upon the plaintiff. Accordingly, we find that the master did not abuse his discretion in considering these additional documents.

II. Employer Immunity

The plaintiff argues that the master improperly found as a matter of law that this suit against the defendant was barred because the defendant shared NEC's employer immunity under the workers' compensation statute. RSA 281:12 (Supp.1983). We hold that the master erred in making this finding.

The plaintiff's employer, NEC, is a New Hampshire corporation which, under the State's business corporation statute, has the power to "sue and be sued," RSA 293-A:4, II (Supp.1983), and to "lease, or otherwise acquire, [and] own ... real or personal property...." RSA 293-A:4, IV (Supp.1983). By virtue of its incorporation, NEC is a separate legal entity from the defendant, Mr. Marston.

For purposes of immunity under the workers' compensation laws, we have held that partners are not separate entities from their partnership, and therefore share the partnership-employer's immunity from suit. Swiezynski v. Civiello, 126 N.H. 142, 489 A.2d 634 (1985). However, the analysis in the partnership context is different from the analysis with respect to corporations.

An individual such as the defendant will share a corporation's employer immunity only when he is the alter ego of the corporation and is performing corporate responsibilities. Estabrook v. American Hoist & Derrick, Inc., 127 N.H. 162, 498 A.2d 741 (1985). See Stevens v. Lewis, 118 N.H. 367, 369-70, 387 A.2d 637, 639 (1978). The question of whether or not an individual is a corporate alter ego is a question for the jury, unless the evidence would support only one finding as a matter of law. Stevens, supra at 370, 387 A.2d at 639.

In Stevens, we refused to hold as a matter of law that the defendant was a corporate alter ego, even though he was the president, treasurer, sole stockholder, and a director of the corporation. In the present case, knowing only that the defendant was president and a principal shareholder of NEC, the master erred in holding as a matter of law that the defendant was NEC's alter ego. There was insufficient evidence for such a conclusion.

Since, on this record, we cannot conclude that the defendant was NEC's alter ego, we also cannot conclude that he was plaintiff's employer for purposes of the workers' compensation laws, and the suit is therefore not barred by RSA 281:12 (Supp.1983). Therefore, we need not consider whether plaintiff's employer is liable under the dual capacity doctrine. See Quinn v. National Gypsum Co., 124 N.H. 418, 469 A.2d 1368 (1983); see also Holzworth v. Fuller, 122 N.H. 643, 644-45, 448 A.2d 394, 395 (1982) (rejecting the dual capacity analysis as to employer who is also the landowner).

III. Landowner Liability

The final issue we must consider is whether the plaintiff's suit against the defendant as a landowner is barred, where the master found that under a lease between NEC and the defendant, NEC was assigned responsibility for maintenance of the business premises. The lease provided in part that the "lessee (NEC) shall, at the lessee's own expense, comply with and maintain all safety, health and related requirements of law and with all ordinances...." The lease also contained a clause which provided that NEC would indemnify the defendant for any losses the defendant incurred as a result of any unsafe conditions. We hold that such lease provisions do not bar suits against landowners by injured third parties.

A landlord has a duty to "exercise reasonable care not to subject others to an unreasonable risk of harm [citations omitted]. A landlord must act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk." Sargent v. Ross, 113 N.H. 388, 397, 308 A.2d 528, 534 (1973). In the case of Ouellette v. Blanchard, 116 N.H. 552, 553, 364 A.2d 631, 634 (1976), the court extended the duty to use reasonable care...