Summary
holding that snow removal contractor owed a duty of care to neighboring property owner under § 324A of the Restatement notwithstanding fact that plaintiff was not a party to the contract, in privity with anyone who was, or an intended third party beneficiary under the contract
Summary of this case from Sacco v. Am. Institutional Med. Grp.Opinion
Civil No. 19-cv-1152-LM
2020-11-19
Jay REDFORD v. BLM COMPANIES, LLC, et al.
Michael P. Craig, Craig & Gatzoulis, James E. Fiest, Craig Professional Association, Manchester, NH, for Jay Redford. Lawrence B. Gormley, Hoefle Phoenix Gormley & Roberts PA, Portsmouth, NH, for BLM Companies, LLC, A-Sons Construction, LLC, A-Sons Construction, Inc. Christopher J. Poulin, Clara E. Lyons, Getman Schulthess Steere & Poulin PA, Manchester, NH, for Bruce Clark.
Michael P. Craig, Craig & Gatzoulis, James E. Fiest, Craig Professional Association, Manchester, NH, for Jay Redford.
Lawrence B. Gormley, Hoefle Phoenix Gormley & Roberts PA, Portsmouth, NH, for BLM Companies, LLC, A-Sons Construction, LLC, A-Sons Construction, Inc.
Christopher J. Poulin, Clara E. Lyons, Getman Schulthess Steere & Poulin PA, Manchester, NH, for Bruce Clark.
ORDER
Landya McCafferty, United States District Judge Presently before the court in this state law negligence action is defendant Bruce Clark's motion for reconsideration (doc. no. 59) of this court's order (doc. no. 57) denying his motion for summary judgment (doc. no. 39). Clark argues that the court committed manifest error in holding that he owed plaintiff Jay Redford a duty of care because he undertook to render snow removal and deicing services at the property where Redford fell, and committed further manifest error in concluding that a genuine dispute exists as to whether Clark failed to exercise reasonable care in performing his duty. Clark's motion is denied.
STANDARD OF REVIEW
A party moving for reconsideration of an order must "demonstrate that the order was based on a manifest error of fact or law." LR 7.2(d). "[M]otions for reconsideration are appropriate only in a limited number of circumstances: if the moving party presents newly discovered evidence, if there has been an intervening change in the law, or if the movant can demonstrate that the original decision was based on a manifest error of law or was clearly unjust." Dionne v. Fed. Nat'l Morg. Ass'n, 110 F. Supp. 3d 338, 341 (D.N.H. 2015) (quoting United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009) ).
DISCUSSION
Clark argues that this court committed manifest error of law in misinterpreting the New Hampshire Supreme Court's holding in Bloom v. Casella Construction, Inc., 172 N.H. 625, 232 A.3d 357 (2019). Clark argues that, in Bloom, the New Hampshire Supreme Court "denied summary judgment because ... the Court could not determine whether a duty existed." Doc. no. 59 ¶ 3.
Clark misreads Bloom. The Supreme Court clearly held that Casella owed plaintiff a duty under § 324A(b) of the Restatement (Second) of Torts. See Bloom, 172 N.H. at 630, 232 A.3d 357 ("To the extent the trial court reasoned that there is no duty under subsection (b) ... we disagree."). Although the Supreme Court concluded there remained a genuine issue as to the precise scope of Casella's duty, the Court plainly held that, because "Casella contracted with [the property owner] to render snowplowing services for specific areas of [the] property," it owed plaintiff a duty under § 324A(b). Id. at 630-31, 232 A.3d 357. Indeed, Clark seems to concede that "he had a duty to report to the property once to plow, remove snow and walkways and front porches, and apply salt to walkways and the driveway." Doc. no. 59 ¶ 6 (emphasis omitted). Thus, Clark has failed to demonstrate that this court's conclusion that he owed Redford a duty of care is "based on a manifest error of law." Dionne, 110 F. Supp. 3d at 341.
Clark further argues, citing New Hampshire Rule of Evidence 401, that reconsideration is warranted because evidence that Redford slipped and fell on ice in the days after Clark rendered snow and ice removal services on the property "lacks reasonable temporal proximity to Clark's work to be relevant" to whether he exercised due care in performing those services. Doc. no. 59 ¶ 8. The court concludes otherwise. The existence of an icy walkway mere days after Clark performed deicing services has a "tendency" to show that Clark failed to exercise due care. Fed. R. Ev. 401 ; see Downey v. Bob's Discount Furniture Holdings, Inc., 633 F.3d 1, 8 (1st Cir. 2011). Finding no manifest error of law or clear injustice in light of this argument, the court declines to reconsider its order. See Dionne, 110 F. Supp. 3d at 341.
CONCLUSION
For the reasons stated herein, Clark's motion for reconsideration (doc. no. 59) is DENIED.
SO ORDERED.