Strassman v. Lakeshore Const.

• Court: District Court, D. New Hampshire
• Decided: April 9, 1998
• Docket: CV-96-601-SD
• Status: Published

Opinion

Strassman v. Lakeshore Const. CV-96-601-SD 04/09/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Charles Strassman

v. Civil No. 96-601-SD

Lakeshore Construction of Wolfeboro, Inc.

O R D E R

In this diversity action, plaintiff Charles Strassman seeks

to recover damages incurred when he fell from a dock that had

been repaired by defendant Lakeshore Construction of Wolfeboro,

Inc. Currently before the court is Lakeshore's motion for

summary judgment, to which Strassman objects.

Background

In 1994 Strassman hired Lakeshore to repair the boat dock at

his wife's residence in Wolfeboro, New Hampshire. The work was

completed on May 14, 1994. On June 23, 1995, Strassman fell as

he stepped from his boat to the dock. As a result of the fall,

Strassman sustained serious injuries.

After his fall, Strassman hired Diversified Marine

Contractors to stabilize the dock. David Farley of Diversified Marine Contractors has opined that the dock swayed and was

unnecessarily unsteady because it lacked stabilizing supports.

Discussion

1. Standard for Suramary Judgment

"Summary judgment exists to 'pierce the boilerplate of the

pleadings and assay the parties' proof in order to determine

whether trial is actually required.'" Nereida-Gonzalez v.

Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993) (quoting Wynne

v. Tufts Univ. Sch. of Medicine, 976 F.2d 791, 794 (1st Cir.

1992), cert, denied 507 U.S. 1030 (1993)). The entry of summary

judgment is appropriate when 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 is entitled to judgment

as a matter of law." Fed. R. Civ. P. 56(c). To resolve a motion

for summary judgment, the court must scrutinize the entire record

in the light most favorable to the nonmovant, with all reasonable

inferences resolved in that party's favor. See Smith v. Stratus

Computer, Inc., 40 F.3d 11, 12 (1st Cir. 1994), cert, denied, 514

U.S. 1108 (1995). "In general, ... a party seeking summary

judgment [must] make a preliminary showing that no issue of

material fact exists. Once the movant has made this showing, the

nonmovant must contradict the showing by pointing to specific

2 facts demonstrating that there is, indeed, a trialworthy issue."

National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735

(1st Cir.) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986)), cert, denied, 515 U.S. 1103 (1995).

2. Causation

Lakeshore argues that the court must grant summary judgment

because plaintiff will be unable to prove that defendant's

alleged negligence was the proximate cause of his injuries.

Defendant's argument is based upon the fact that in his

deposition the plaintiff was unable to identify the cause of his

fall. Strassman, however, contends that he has sufficient

evidence to warrant presenting the issue to a jury because his

expert witness will testify that the dock failed to meet industry

standards making it unnecessarily unsteady.

As every first-year law student knows, a prima facie case of

negligence consists of duty, breach, causation, and damages.

Causation in turn consists of but-for and legal cause. That is,

the plaintiff must show that the injury would not have happened

without the defendant's negligence, and that the relationship

between the conduct and the injury is not so attenuated as to

make it unreasonable to hold the defendant liable. See 8 R i c h a r d

B. M c N a m a r a , N e w H a m p s h i r e P r a c t i c e , P e r s o n a l In j u r y §§ 134-136 (1996) .

3 According to the New Hampshire Supreme Court "proximate cause [is

a] question for the jury unless the evidence is such that no

reasonable man could find legal fault or causation." Hurd v.

Boston & Maine R.R., 100 N.H. 404, 408, 129 A.2d 196, 200 (1957).

New Hampshire has adopted the substantial factor approach to

causation. See Bronson v. Hitchcock Clinic, 140 N.H. 798, 809,

677 A.2d 665, 673 (1996). Thus, "'the existence of concurrent

causes will not in and of itself vitiate a finding'" of proximate

cause, Le Blanc v. American Honda Motor Co., 141 N.H. 579, 586,

688 A.2d 556, 562 (1997) (quoting Reid v. Spadone Mach. Co., 119

N.H. 457, 463-64, 404 A.2d 1094, 1098 (1929)), provided the

defendant's conduct was "a substantial factor, rather than a

slight one, in producing that harm." Bronson, supra, 140 N.H. at

809, 677 A.2d at 673.

In this case, the court finds that Strassman has sufficient

evidence to present to a jury. In many cases, plaintiffs must

rely on expert testimony to establish the elements of a

negligence claim. Indeed, in medical malpractice cases, for

instance. New Hampshire requires plaintiffs to present expert

evidence that the defendant's conduct was the cause of the

plaintiff's injury. See New Hampshire Revised Statutes Annotated

(RSA) 507-E:2, I (1997). The court sees no reason to require

that plaintiff have personal knowledge of the cause of his

4 injury. Although Strassman's uncertainty about the cause of his

accident strengthens the defendant's case, the court cannot

conclude that "no reasonable [juror] could find . . . causation."

Hurd, supra, 100 N.H. at 408, 129 A.2d at 200. Strassman need

only convince the jury that the alleged defective condition, more

likely than not, was a substantial factor in his fall. Based on

his expert's testimony, a reasonable juror could conclude that

the condition of the dock was so dangerous that it probably

contributed to his fall.

Conclusion

For the abovementioned reasons, Defendant's Motion for

Summary Judgment (document 10) must be and herewith is denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

April 9, 1998

cc: Karen Schultz Breda, Esq. Lawrence S. Smith, Esq.