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White v. Asplundh Tree Expert Co.12/10/2004
l 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 (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 (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 (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 (1977).
To determine whether, once found, a duty of care has been breached, an examination of what reasonable prudence would demand under similar circumstances is required, Weldy, 128 N.H. at 330-31, because reasonable conduct under all the circumstances is the true test of due care, Morse v. Goduti, 146 N.H. 697, 699 (2001). In cases involving personal injuries on the property of another,
he character of and circumstances surrounding the intrusion will be relevant and important in determining the standard of care applicable to the landowner. When the intrusion is not foreseeable or is against the will of the landowner many intruders will be denied recovery as a matter of law. In other words, a landowner cannot be expected to maintain his premises in a safe condition for a wandering tramp or a person who enters against the known wishes of the landowner. Essentially the traditional tort test of foreseeability determines the liability or non-liability of the landowner in these cases. If the defendant could not reasonably foresee any injury as the result of his act, or if his conduct was reasonable in the light of what he could anticipate, there is no negligence, and no liability.
Ouellette v. Blanchard, 116 N.H. 552, 557-58 (1976) (quotations omitted).
Asplundh moved for summary judgment on two grounds: first, that it did not owe Dr. White a duty of care; and second, that it was immune from liability under RSA 212:34. Asplundh contends that as to the former, the trial court ruled only that it did not owe Dr. White a duty of care, and did not decide the related issue of whether Asplundh breached a duty of care. We disagree. The trial court specifically ruled that Asplundh "satisfied any duty it owed to Dr. White." Our reading of the trial court's
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