We agree. In Tanguay v. Marston, 127 N.H. 572, 503 A.2d 834 (1986), the plaintiff, after having collected workers' compensation benefits from his corporate employer, brought suit to recover for his job-related injuries against a defendant who was the principal shareholder and president of the corporate employer. Id. at 574, 503 A.2d at 835.

New Hampshire case law does not, as Ladue contends, categorically prohibit a business that is open to the public from insulating itself from liability for negligence in maintaining its premises. In arguing to the contrary, Ladue relies on Valenti v. NET Properties Management, 142 N.H. 633, 710 A.2d 399 (1998), Tanguay v. Marston, 127 N.H. 572, 503 A.2d 834 (1986), and Papakalos v. Shaka, 91 N.H. 265, 18 A.2d 377 (1941). However, that reliance is misplaced.

" Lehman Bros. Commercial Corp. v. Minmetals International Nonferrous Metals Trading Co., 179 F.Sup.2d 118, 153 (S.D.N.Y. 2000); see Soltys v. Wellesley Country Club, Massachusetts Superior Court at Norfolk, No. 0000050 (October 28, 2002) (a fiduciary relationship may arise from a special relationship). Thus, for example, while courts have held that a landlord and tenant have a special relationship; Tanguay v. Marston, 127 N.H. 572, 503 A.2d 834 (1986); such parties do not, absent special circumstances, have a fiduciary relationship. Bellows Falls Trust Co. v. American Mineral Products Co., 89 N.H. 551, 556-57, 3 A.2d 98 (1938) (holding no fiduciary relationship exists between sublessor and sublessee).

As noted above, the parties agree, and it is well-established under New Hampshire law, that entities that are alter egos of one another may share employer immunity under RSA 281-A:8. See Leeman, 134 N.H. at 233-34; Tanguay v. Marston, 127 N.H. 572, 576 (1986). There are few decisions, however, addressing the specific factors a court should consider when determining whether two corporations are alter egos for workers' compensation purposes.

Id. The court also determined in a later decision that exculpatory clauses in commercial leases cannot be enforced against third parties. In Tanguay v. Marston, 127 N.H. 572 (1986), the court held that while such clauses bind both the landlord and the tenant, they do not provide the landlord with a defense to a third party's negligence claim. See id. at 578.

[¶8] However, "[w]here the parties to a contract are free to make their own bargain, and no special relationship (such as landlord-tenant or common carrier-passenger) exists between them, a clause fully exculpating one party for property damage due to its negligence in the performance of a contract is valid and will be enforced." Tanguay v. Marston, 127 N.H. 572, 577 (1986).

And in Perkins v. Scott, a Florida opinion that we quoted with approval in Sauve I, the court held that an employee injured on the job could sue the premises owner, who was also the owner and manager of the corporate employer. 503 A.2d 834 (N.H. 1986).See id. at 837-38.

An alter ego determination "is a question for the jury, unless the evidence would support only one finding as a matter of law." Tanguay v. Marston, 127 N.H. 572, 576 (1986). In Leeman v. Boylan, 134 N.H. 230, 233 (1991), the Court addressed alter ego contentions in an action brought by an injured employee against, among others, the parent corporation of his employer.

With respect to landowners, such as MGI, the New Hampshire Supreme Court has since held that owners and occupiers of land owe third parties a duty of reasonable care in the maintenance and operation of their property. See Tanguay v. Marston, 127 N.H. 572, 577 (1986). Consequently, a landlord must take reasonably necessary precautions to reduce the likelihood of foreseeable injury from defects in his property.

Stevens v. Lewis, 118 N.H. 367, 369-70 (1978) ("The jury must determine whether the defendant is the corporate alter ego . . . [I]t must next determine whether the function [the defendant] allegedly performed negligently is a responsibility of the corporation or a responsibility of one employee to another.") However, even if Paine was the alter-ego of the corporation, if she acted in a "dual capacity," as employer and as an employee, she may be sued as a co-employee under § 281-A:8. Id. See also Robbins v. Seekamp, 122 N.H. 318, 321 (1982) (recognizing dual capacity doctrine where employee is injured by a machine negligently designed by employer); Quinn v. National Gypsum, Co., 124 N.H. 418, 420 (1983) (recognizing, but not adopting, dual capacity doctrine); Tanguay v. Marston, 127 N.H. 572, 576 (1986) (president and principal shareholder of corporation was not alter ego, therefore not immune to suit). But see Mello v. Gouin's Plumbing Heating Co., 137 N.H. 675, 678-79 (1993), citingHolzworth v. Fuller, 122 N.H. 643, 645 (1982) (dual capacity doctrine did not enable employee to sue employer merely because employer was also owner of land on which injury occurred).