The NH Supreme Court has reversed the most recent in a line of superior court decisions that had significantly limited a snow removal contractor’s duty to third parties. Applying a very narrow interpretation of Section 324A(b) of the Restatement (Second) of Torts, some NH superior courts had held that a snow removal contractor is liable to a third party injured on the landowner’s property only if the contractor agreed to entirely supplant the landowner’s duty of maintenance.
Section 324A(b) provides that a contractor “is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if . . . he has undertaken to perform a duty owed by the other to the third person.” In Bloom v. Casella Construction, Inc., No. 2018-0425 (N.H. Oct. 16, 2019), the NH Supreme Court applied this provision more broadly.
Even where the contract in Bloom contained seemingly limiting language that salting and sanding would be done by the landowner unless assistance was requested, the Court held that the testimony of landowner’s employee that the contractor would automatically salt and sand certain areas created a factual question as to the contractor’s assumption of duty that defeated summary judgment. As a practical matter, it would seem that a plaintiff will always be able to raise a factual question on this issue so as to defeat summary judgment, eliminating this avenue of defense for snow removal contractors going forward.
This decision affects common law negligence claims by third party slip and fall victims against snow removal contractors. Property owners and their contractors remain free to dictate their contractual relationship with each other, including by way of indemnification provisions.