Pardy v. Alabama Farmers

2010 DNH 067

• Court: District Court, D. New Hampshire
• Decided: April 12, 2010
• Docket: 09-CV-192-SM
• Status: Published

Opinion

Pardy v . Alabama Farmers 09-CV-192-SM 04/12/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Estate of Robert Pardy, through its administrators Kyley Gobin and Sara Pardy; and Estate of Cody Pardy, through its administrator Dorothy Ferland, Plaintiffs

v. Civil N o . 09-cv-192-SM Opinion N o . 2010 DNH 067 Alabama Farmers Cooperative, Inc. d/b/a Bonnie Plant Farm; Highlands Fuel Delivery, LLC; and Johnson & Dix Fuel Corporation, Defendants

O R D E R

Bonnie Plant Farm is a division of Alabama Farmers

Cooperative (“AFC”) and runs agricultural businesses and

greenhouses around the country, including one in Lempster, New

Hampshire. Robert Pardy was employed by Bonnie Plant Farm and,

as a benefit of that employment, he and his son Cody were

permitted to live in a home on the Lempster farm. Tragically, on

or around May 3 0 , 2008, he and Cody died from Carbon Monoxide

poisoning in that home. An investigation conducted by the New

Hampshire State Fire Marshal’s office concluded that because a

corroded exhaust pipe between the furnace and chimney had

collapsed and fallen to the floor, exhaust from the furnace had

been venting directly into the house. In June of 2009, the estates of Robert and Cody brought suit

against AFC, alleging that its agents had negligently maintained

the house and its heating system (count one) and that, as

landlord, AFC breached its implied warranty of habitability

(count t w o ) . The estates also brought a claim against Highlands

Fuel Delivery, LLC (formerly Irving Oil Corporation and successor

in title to Johnson & Dix Fuel Corporation) alleging that

Highlands’ agents (or those of its predecessors) negligently

inspected, maintained, and/or serviced the heating system (count three). 1

According to AFC, the Fire Marshal’s office has determined

that the home is uninhabitable and has advised AFC to demolish

it. Accordingly, AFC now moves the court for permission to raze

the house, saying it is vacant and poses a safety/fire hazard.

It also says it wishes to begin construction of alternate housing

(apparently on that site) for its employees. Johnson & Dix

(joined by the plaintiffs and Highlands Fuel Delivery) objects.

1 In 2006, Johnson & Dix sold its gas and oil business to Irving Oil Corporation. Subsequently, Irving converted to a limited liability corporation known as Highlands Fuel Delivery, LLC.

2 Discussion

Although Johnson & Dix urges the court to deny AFC’s motion

and require AFC to maintain the home in its current condition, it

has offered few concrete reasons to do s o . Instead, it merely

suggests that there is a possibility that, upon further

discovery, additional onsite inspections of the house and/or

testing may become necessary. But, Johnson & Dix and the other

parties to this litigation have previously been granted access to

the premises on at least two occasions and, presumably, could

have had additional access if they or their experts desired.

Moreover, to the extent any of the parties believes the furnace

should be preserved for additional inspection or testing, it can

obviously be removed and stored at a secure location.

In light of those facts, the court sees little reason to

require AFC to incur the costs, risk, and inconvenience

associated with maintaining the structure in its current

uninhabitable and potentially dangerous condition for an

indefinite period of time. Accordingly, AFC’s motion to raze the

house is granted, subject to the following conditions:

1. AFC shall not destroy, demolish, or otherwise alter the house from its present condition until on or after Friday, June 2 , 2010.

2. Prior to that date, AFC shall afford the other parties to this litigation (and their agents,

3 experts, etc.) reasonable access to the premises to perform appropriate inspections, testing, etc.

3. I f , prior to the demolition of the structure, one or more of the other parties to this litigation wishes to preserve any evidence from that building (e.g., the furnace), they shall coordinate with AFC to remove i t . Any such party(s) shall bear the costs of removal, storage, and preservation of such evidence.

Conclusion

For the forgoing reasons, as well as those set forth in

AFC’s motion, its motion to raze property (document n o . 34) is

granted, subject to the conditions set forth above.

SO ORDERED.

McAuliffe r Chief Judge April 1 2 , 2010

cc: Arend R. Tensen, Esq. Stephen J. Schulthess, Esq. Debbie L. Makris, Esq. Eric D. Jones, Esq. John A . Hobson, Esq. Marc B . Heath, Esq. David P. Cullenberg, Esq. Randy J. Creswell, Esq. R. Matthew Cairns, Esq.