Dora Hill v. MGI Wintrop Assoc.

2002 DNH 073

• Court: District Court, D. New Hampshire
• Decided: March 27, 2002
• Docket: CV-01-08-B
• Status: Published

Opinion

Dora Hill v. MGI Wintrop Assoc. CV-01-08-B 03/27/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dora Hill

v. Civil No. C-01-08-B Opinion No. 2002 DNH 073 MGI Winthrop Associates, Inc., Successor to 15 T.S.C., Inc.

MEMORANDUM AND ORDER

Dora Hill was adjusting a vertical blind at Creative Years

Child Development and Learning Center ("Creative Years") in

Nashua, NH ("the property"), when the blind came loose from the

wall and crashed down on her left shoulder. Hill subsequently

brought this diversity action against MGI Winthrop Associates

("MGI"), the successor-in-interest to the owner of the property

at the time of the accident. Hill asserts that MGI is liable for

her injuries because its predecessor negligently installed and

maintained the blind. MGI has moved for summary judgement. For

the following reasons, I deny the motion. I. BACKGROUND1

Hill worked at Creative Years from February 1994 to

September 1998. At the time of the accident, she was working as

a preschool teacher. Hill alleges that, on January 6, 1998, as

she was attempting to adjust a vertical blind in her classroom, a

screw holding the track from which the blind hung came loose from

the wall and crashed down on her left shoulder. The force of the

crash injured her shoulder and rendered her disabled on her left

side.

MGI does not dispute that its predecessor was responsible

for maintaining the premises where the accident occurred. MGI's

predecessor, in turn, delegated this responsibility to Corcoran

Management Co., Inc. ("Corcoran"), in a Property Management

Agreement ("Agreement"). The Agreement required Corcoran to

"make all ordinary repairs and perform all maintenance on the

buildings, grounds and other improvements of the Property

necessary to maintain the Property." Corcoran also

1 I construe the record in the light most favorable to Hill, who opposes the entry of summary judgement. See Mauser v. Raytheon Co. Pension Plan for Salaried Employees. 239 F.3d 51, 56 (1st Cir. 2001).

- 2 - agreed to perform, on a quarterly basis, "comprehensive

inspections of the Property . . . and [to] provide a written

report of such inspections" to the landlord.

Hill asserts that one of the blinds in her classroom came

loose on two occasions in 1997 and that her employer had

tightened loose screws for other blinds in the building on

several other occasions. Hill has also supplied an affidavit

from Bill Luther, Corcoran's maintenance manager, who states

that, prior to Hill's accident, other blinds in the building had

come loose or fallen, including one blind in the Creative Years

section of the building. Luther avers that, "when [blinds] come

down [Corcoran] put[s] them back in place and screw[s] them

securely and affix[es] the fastener properly."

It is undisputed that the building's blinds were installed

approximately twelve years prior to Hill's accident.

II . STANDARD OF REVIEW

Summary judgment is appropriate only "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

- 3 - is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c) . A genuine issue is one "that properly can be resolved

only by a finder of fact because [it] . . . may reasonably be

resolved in favor of either party." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986) . A material fact is one that

affects the outcome of the suit. See i d . at 248.

In ruling on a motion for summary judgment, the court must

construe the evidence in the light most favorable to the

non-movant. See Oliver v. Digital Equipment Corp., 846 F.2d 103,

105 (1st Cir. 1988) . The party seeking summary judgment,

however, "bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those

portions of [the record] . . . which it believes demonstrates the

absence of a genuine issue of material fact." Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). Once the moving party has

properly supported its motion, the burden shifts to the nonmoving

party to "produce evidence on which a reasonable finder of fact,

under the appropriate proof burden, could base a verdict for it;

if that party cannot produce such evidence, the motion must be

granted." Ayala-Gerena v. Bristol Myers-Scruibb Co., 95 F.3d 86,

94 (1st Cir. 1996) (citing Celotex, 477 U.S. at 323). I apply

- 4 - this familiar standard of review in ruling on MGI's motion for

summary judgment.

III. DISCUSSION

MGI contends that it is entitled to summary judgment because

it could not reasonably have foreseen Hill's injury. I disagree.

In 1973, the New Hampshire Supreme Court rejected the common

law rule that a landlord ordinarily cannot be held liable for

injuries suffered by a third party while using a leased premises.

Sargent v. Ross, 113 N.H. 388, 397 (1973) . 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 Tanquav 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. Sargent, 113 N.H. at 399.

If a jury were to credit Hill and Luther, who aver that

blinds had come loose or fallen prior to January 6, 1998, it

could conclude that MGI's predecessor reasonably could have

foreseen that other similar blinds would become loose and fall if

- 5 - they were not regularly inspected and maintained. Therefore,

MGI's predecessor was under a duty to take reasonable steps, such

as more frequent inspections of the blinds in the building, that

would have allowed them to detect and correct the problem before

Hill was injured. Its alleged failure to do so in this case is

the basis of Hill's negligence claim. Like many negligence

cases, this case is not suited to resolution by summary

judgement. See lannelli v. Burger King Corp., 761 A. 2d 417, 419

(N.H. 2000).

IV. CONCLUSION

For the reasons stated above, I deny MGI's motion for

summary judgement (doc. no. 12).

SO ORDERED.

Paul Barbadoro Chief Judge March 27, 2002

cc: Paul A. Rinden, Esq. Richard E. Mills, Esq.

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