Richmond v. White Mountain Recreation Ass'n

674 A.2d 153, 140 N.H. 755, 11 I.E.R. Cas. (BNA) 1037, 1996 N.H. LEXIS 28
CourtSupreme Court of New Hampshire
DecidedApril 4, 1996
DocketNo. 94-693
StatusPublished
Cited by5 cases

This text of 674 A.2d 153 (Richmond v. White Mountain Recreation Ass'n) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richmond v. White Mountain Recreation Ass'n, 674 A.2d 153, 140 N.H. 755, 11 I.E.R. Cas. (BNA) 1037, 1996 N.H. LEXIS 28 (N.H. 1996).

Opinion

JOHNSON, J.

White Mountain Recreation Association, Inc., d/b/a White Mountain Attractions Association (White Mountain), and White Mountains 93 Association, a/k/a Ski 93 (Ski 93), engaged Fadden Construction Company (Fadden) to build an addition onto a visitors’ center. Charles W. Richmond, a Fadden employee, fell off a ladder while working on the building project. Richmond sued White Mountain and Ski 93 under several theories of liability, including violation of RSA 277:2 (1987), negligent selection of Fadden as a contractor, and failure to protect against a danger inherent in the work. Cf. RSA 281-A:8 (Supp. 1995) (employee covered by RSA chapter 281-A has no right to sue employer in tort and may sue co-employee only for intentional tort). Ski 93 then sued Fadden for indemnification. The Superior Court (Fitzgerald, J.) dismissed Richmond’s statutory count prior to the jury trial and directed a verdict in favor of all defendants on the remaining claims at the close of Richmond’s case. We affirm.

Richmond first argues that the trial court erred in dismissing his statutory claim. In reviewing the court’s dismissal, we determine “whether the allegations are reasonably susceptible of a construction that would permit recovery.” Royer Foundry & Mach. Co. v. N.H. Grey Iron, Inc., 118 N.H. 649, 651, 392 A.2d 145, 146 (1978). [757]*757“We will assume the truth of both the facts alleged in [Richmond’s] pleadings and all reasonable inferences therefrom as construed most favorably to [Richmond].” Collectramatic, Inc. v. Kentucky Fried Chicken Corp., 127 N.H. 318, 320, 499 A.2d 999, 1000 (1985).

Our task is to determine the legislature’s intent as expressed in the language of RSA 277:2. See City of Concord v. PELRB, 119 N.H. 725, 727, 407 A.2d 368, 364 (1979). We start by examining the statute for its plain meaning. Gilmore v. Bradgate Assocs., 135 N.H. 234, 237, 604 A.2d 555, 556 (1992); see RSA 21:2 (1988). RSA 277:2, entitled, “Scaffolding and Other Devices for Use of Employees,” provides: “A person employing or directing another to perform labor of any kind in the erection . . . of a building or structure shall furnish ... or cause to be furnished . . . ladders . . . which shall be so constructed, placed and operated as to give proper protection to a person so employed or directed.” (Emphasis added.)

White Mountain, Ski 93, and Fadden argue that RSA 277:2 applies only to public employees and cannot, in any event, support a private cause of action. We need not address these questions. The plain language of the statute precludes recovery here. RSA 277:2 requires “[a] person employing or directing another” to take certain safety measures for the protection of “a person so employed or directed.” If the statute were to apply to this case, Richmond would have to be “a person so employed or directed.” The “person employing or directing” Richmond, however, was Fadden, not White Mountain or Ski 93. Accordingly, RSA 277:2 did not impose any duty on White Mountain and Ski 93 to protect Richmond from harm.

Richmond argues that White Mountain and Ski 98 were the “person[s] employing or directing another” under RSA 277:2. He acknowledges that White Mountain and Ski 98 employed or directed Fadden, not himself, but asserts that, as a Fadden employee, he stood in Fadden’s shoes for purposes of RSA 277:2. We disagree. The statute’s manifest purpose is to protect the physical safety of employees. The person best able to protect Richmond was the person directly overseeing his work — Fadden. Thus, the most reasonable interpretation of RSA 277:2 is the one most faithful to its plain meaning, set forth above. That is, if the statute applies here at all, Fadden, the “person employing or directing” Richmond, had the duty to follow safety measures for Richmond’s protection, not White Mountain and Ski 93. We hold that RSA 277:2 does not apply to this case under any construction of Richmond’s pleadings and therefore cannot form the basis for liability against White Mountain and Ski 93.

[758]*758Next, Richmond argues that the trial court erred in directing a verdict against him on his negligent hiring claim. Our standard of review is “whether the evidence and all reasonable inferences therefrom, construed most favorably to [Richmond], would permit a jury to find in [Richmond’s] favor.” Foss v. Byrnes Chevrolet, Inc., 119 N.H. 808, 809, 408 A.2d 415, 415 (1979) (quotation omitted).

“An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor ... to do work which will involve a risk of physical harm unless it is skillfully and carefully done . . . .” RESTATEMENT (SECOND) OF TORTS § 411 (1965); see Arthur v. Holy Rosary Credit Union, 139 N.H. 463, 468-69, 656 A.2d 830, 834 (1995). We first note the prevailing view that the doctrine of negligent hiring does not apply to cases such as this, where the injured plaintiff was an employee of the contractor hired by the defendant. See, e.g., Ray v. Schneider, 548 A.2d 461, 467-68 (Conn. App. Ct.), certification denied, 551 A.2d 756 (Conn. 1988); Valdez v. Cillessen & Son, Inc., 734 P.2d 1258, 1263 (N.M. 1987); Mentzer v. Ognibene, 597 A.2d 604, 607-09 (Pa. Super. Ct. 1991), appeal denied, 609 A.2d 168 (Pa. 1992); Chapman v. Black, 741 P.2d 998, 1003-05 (Wash. Ct. App. 1987); but see Sievers v. McClure, 746 P.2d 885, 891 (Alaska 1987). Even if the negligent hiring doctrine applied to this case, however, we would affirm the trial court’s directed verdict. Neither the evidence nor the reasonable inferences taken therefrom could support a finding that White Mountain and Ski 93 failed to exercise reasonable care in hiring Fadden.

Richmond points to evidence that White Mountain and Ski 93 selected Fadden based on Fadden’s past work, without researching the adequacy of Fadden’s equipment and personnel. We find no negligence in this method of selection. Comment c to the RESTATEMENT (SECOND) OF TORTS § 411 states:

[O]ne who employs a carpenter to repair the ceilings of his shop or [a plumber] to install plumbing in his hotel is entitled to assume that a carpenter or plumber of good reputation is competent to do such work safely. In such case, there is no duty to make an elaborate investigation as to the competence of the carpenter or plumber. Indeed, there is no duty to take any great pains to ascertain whether his reputation is or is not good. The fact that he is a carpenter or plumber is sufficient, unless the employer knows that the contractor’s reputation is bad or knows of facts which should lead him to realize that the contractor is not competent.

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674 A.2d 153, 140 N.H. 755, 11 I.E.R. Cas. (BNA) 1037, 1996 N.H. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richmond-v-white-mountain-recreation-assn-nh-1996.