White v. Asplundh Tree Expert Co.
| Decision Date | 10 December 2004 |
| Docket Number | No. 2004–257.,2004–257. |
| Citation | 864 A.2d 1101,151 N.H. 544 |
| Court | New Hampshire Supreme Court |
| Parties | Dr. Leland WHITE and another. v. ASPLUNDH TREE EXPERT COMPANY. |
Cook & Molan, P.A., of Concord (Glenn R. Milner and Ronald E. Cook on the brief, and Mr. Milner orally), for the plaintiffs.
Devine, Millimet & Branch, P.A., of Manchester (Thomas Quarles and Pamela N. Morales on the brief, and Mr. Quarles orally), for the defendant.
The plaintiffs, Dr. Leland and Carol White, appeal and the defendant, Asplundh Tree Expert Company (Asplundh), cross-appeals an order of the Superior Court (McGuire , J.) granting Asplundh's motion for summary judgment on the plaintiffs' negligence action for personal injuries. We reverse and remand.
The record, viewed in the light most favorable to the plaintiffs, supports the following facts. In November 2001, prior to commencing tree trimming and removal activities in the area adjacent to power lines located along Route 103 in Warner, Asplundh obtained Dr. White's permission to do tree work on his property. On November 28, 2001, an Asplundh crew trimmed and cut trees on the Whites' property. The following day, when the plaintiffs returned to their home around noon after a morning trip, Asplundh was working on a State-owned strip of land situated between the plaintiffs' home and Route 103. Sometime before 1:00 p.m., Dr. White left his house and walked to Asplundh's work area, where he was struck in the head by a tree felled by the Asplundh work crew. The weather that day was inclement, with freezing rain and snow, and reduced visibility. As a result of the accident, Dr. White suffered fractured ribs and vertebrae, a blunt head trauma and a fractured clavicle.
The plaintiffs sued Asplundh, seeking damages for personal injury, loss of enjoyment of life and loss of consortium. Asplundh moved for summary judgment, arguing first, that based upon this court's holding in Ouellette v. Blanchard, 116 N.H. 552, 364 A.2d 631 (1976), it, as legal occupant of the State-owned land at the time the accident occurred, owed no duty of care to Dr. White because he had entered its work area despite directives that he stay away. Second, and alternatively, Asplundh argued that it was immune from liability under RSA 212:34 (Supp.2004) because Dr. White entered its work area with a purpose to engage in at least one of the several activities enumerated in the statute. The plaintiffs did not contest Asplundh's assertion that because it was legally occupying the State-owned land at the time of the accident, it was entitled to the same liability defenses available to owners of land. Rather, they argued that under Ouellette , the directives of an owner or occupier of land to stay away are not factors to be considered in determining whether a duty existed in favor of third parties, but should only be considered in determining if a duty was breached . The plaintiffs further contended that because material facts remained in dispute as to why Dr. White entered Asplundh's work area, Asplundh was not entitled to summary judgment on its statutory immunity claim.
The trial court granted Asplundh's motion for summary judgment, ruling, in relevant part:
Dr. White argues ... that the holding in Ouellette abolishes the traditional classifications of invitee, licensee and trespasser, and [imposes a duty on all landowners] to use reasonable care under the circumstances with respect to all persons who enter their land. The Court agrees with the [plaintiffs'] statement of the law but finds as a matter of law that Asplundh used reasonable care under the circumstances and therefore, cannot be found liable for Dr. White's injuries.
(Citation omitted.) Having concluded that Asplundh had "satisfied its duty [of care]" to Dr. White, the trial court did not address Asplundh's immunity claim. The plaintiffs' motion for reconsideration was denied; in its ruling the trial court declined to rule on Asplundh's claim of immunity because there was "an insufficient factual basis to do so." This appeal followed.
The plaintiffs argue that the trial court erred in ruling that Asplundh had satisfied any purported duty of care to Dr. White because Asplundh's motion for summary judgment only contended that no duty of care existed . They further assert that it was error for the trial court to rule that Asplundh satisfied its purported duty because material facts were in dispute.
In its cross-appeal, Asplundh argues that although the trial court correctly determined that it did not breach any duty of care to the plaintiffs, the court erred in declining to grant summary judgment on the basis of Asplundh's immunity under RSA 212:34. Specifically, Asplundh contends that the record established that Dr. White entered its work area with a purpose to engage in at least one of the several activities enumerated in the immunity statute.
When reviewing a trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Estate of Joshua T. v. State, 150 N.H. 405, 407, 840 A.2d 768 (2003). If our review of the evidence does not reveal a 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 . Id.
To recover on a claim of negligence, a plaintiff must establish that a defendant breached its duty of care and that the breach proximately caused the claimed injury. See Weldy v. Town of Kingston, 128 N.H. 325, 330, 514 A.2d 1257 (1986). Under New Hampshire law, for a landowner to owe a duty of care to a party entering his property, it must be reasonably foreseeable that injury may occur as a result of the landowner's conduct. Kellner v. Lowney, 145 N.H. 195, 198, 761 A.2d 421 (2000). Whether a landowner's challenged conduct created such a foreseeable risk of harm is a question of law. Paquette v. Joyce, 117 N.H. 832, 834, 379 A.2d 207 (1977).
To continue reading
Request your trial