McCarthy v. Weathervane
2011 DNH 088 (2011)
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Rule of Law:
A premises owner owes a duty of reasonable care to keep the premises safe and warn of dangerous conditions they know or should know about, but generally not for open and obvious dangers; furthermore, state law claims for negligence per se require a specific statutory basis applicable to the defendant, strict pleading, and cannot be based on Occupational Safety and Health Administration (OSHA) violations in the First Circuit.
Facts:
- Kevin McCarthy was self-employed as an HVAC technician doing business as Maxair, and was approved to provide service to Weathervane Seafoods restaurants.
- On June 13, 2010, Jennifer Burgess, Assistant Manager at Weathervane's Nashua restaurant, asked McCarthy to inspect and repair a leak in the roof.
- McCarthy inspected the leak from the kitchen area and decided he needed to access the roof using a ladder.
- McCarthy located a ladder previously known to be chained behind the restaurant for roof access, unchained it, and extended it up the side of the building.
- Burgess observed McCarthy setting and climbing the ladder, but as he neared the top, the bottom slipped out, causing him to fall and sustain serious injuries.
- Restaurant management and employees were aware of a recurring problem with grease dripping onto the back dock area from frying operations, and internal policy required this area to be kept clean and grease-free.
- After the fall, an EMT noticed McCarthy's pants and shoes were coated with a significant amount of fish-smelling grease from the pavement.
Procedural Posture:
- Kevin McCarthy filed a complaint in the United States District Court for the District of New Hampshire against Weathervane Seafoods, alleging claims of negligence and negligence per se.
- Weathervane Seafoods filed a motion for summary judgment, contending that the negligence claim failed because Weathervane owed no duty to McCarthy and the negligence per se claim failed due to a lack of a statutory basis.
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Issue:
1. Does a premises owner owe a duty of care to an independent contractor for an alleged defect in a ladder that is open and obvious, or for a slippery condition on the premises when the owner knows or should know of the condition? 2. Can a claim for negligence per se be based on a state statute inapplicable to the defendant, on state regulations or building codes not explicitly pleaded in the complaint, or on violations of federal OSHA regulations under state law?
Opinions:
Majority - Joseph A. DiClerico, Jr.
No, a premises owner does not owe a duty to an independent contractor for an alleged defect in a ladder that is open and obvious, but yes, a premises owner may owe a duty of reasonable care for a slippery condition on the premises when there is sufficient evidence that the owner knew or should have known of the dangerous condition. No, a negligence per se claim cannot be based on a state statute inapposite to the defendant, on state regulations or building codes not pleaded in the complaint (unless disclosed during discovery for specific regulations), or on federal OSHA violations under state law. Regarding the negligence claim, the court granted summary judgment to Weathervane on the theory that the provided ladder was too short. The court reasoned that such a defect would be 'open and obvious,' and a landowner generally has no duty to warn of such dangers. McCarthy did not dispute this point. However, the court denied summary judgment on the negligence claim related to the slippery condition of the back dock area. The court found that McCarthy presented sufficient evidence to create a genuine issue of material fact as to whether Weathervane knew or should have known about the hazardous grease buildup, citing testimony from managers, employees, and an EMT's observation post-fall. Premises owners have a duty to use ordinary care to keep premises reasonably safe and to warn of or remedy dangerous conditions they know or should know about, as established in Rallis v. Demoulas Super Mkts., Inc. Regarding the negligence per se claim, the court granted summary judgment to Weathervane for several reasons. First, New Hampshire RSA 277:2, cited by McCarthy, applies only to the state or its political subdivisions as employers, not private entities like Weathervane. Second, McCarthy attempted to introduce new grounds for negligence per se at the summary judgment stage (International Building Code and International Property Maintenance Code violations for slippery conditions) which were not alleged in the complaint or disclosed in discovery. Plaintiffs generally cannot assert new claims in response to a motion for summary judgment. However, the court did allow the negligence per se claim based on New Hampshire Code of Administrative Rules, Labor 1403.30 to proceed, as it was specifically identified in discovery. Third, the First Circuit precedent, specifically Elliott v. S.D. Warren Co., established that OSHA violations cannot form the basis for state law negligence per se claims, limiting the earlier Pratico v. Portland Terminal Co. ruling to Federal Employers' Liability Act (FELA) claims.
Analysis:
This case clarifies the application of premises liability principles, specifically distinguishing between open and obvious dangers for which there is generally no duty to warn, and latent dangers for which a duty exists if the owner has actual or constructive knowledge. It reinforces the procedural requirement that plaintiffs must properly plead or disclose all bases for a negligence per se claim, preventing new theories from being introduced at the summary judgment stage. Crucially, the case reiterates the First Circuit's stance that federal OSHA regulations cannot serve as the statutory basis for state law negligence per se claims, significantly limiting their use in tort actions outside specific federal statutes like FELA.
