Tautic v. Hartmann, et al.

2002 DNH 063

• Court: District Court, D. New Hampshire
• Decided: March 6, 2002
• Docket: CV-00-518-B
• Status: Published

Opinion

Tautic v. Hartmann, et a l . CV-00-518-B 03/06/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Cynthia Tautic, Individually and as next friend on behalf of Zachary Mack, Plaintiff

v. Civil No. 00-518-B Opinion No. 2002 DNH 063

Florence Hartmann, Dennis J. Solinsky, Individually and d/b/a Solinsky Builders, and James D. Solinsky, Defendants,

James D. Solinsky, Third-Party Plaintiff,

Richard and Raelene Tautic, Third-Party Defendants.

MEMORANDUM AND ORDER

This civil action arises out of Cynthia Tautic's allegation,

pressed on behalf of her minor son Zachary Mack, that Zachary

sustained serious burns on his feet when, while retrieving ball

from defendant Florence Hartmann's property, he ran through the

ashes of an unlawful brush fire that had been burning for several

days. I have before me defendants' motion for summary judgment on Count III of the complaint,1 which purports to state a claim

under N.H. Rev. Stat. Ann. ("RSA") § 227-L:17; and Hartmann's

motion for summary judgment on her cross-claims against her co­

defendants under the theory of implied indemnity.

In their motion for summary judgment on Count III,

defendants contend that RSA § 227-L:17 does not authorize,

expressly or impliedly, a damages claim against a person brought

by a trespasser injured by fire on the person's land. In her

objection, plaintiff does not provide a developed response to

this argument because she appears to conflate two bases for civil

liability - causes of action expressly or impliedly created by

statute and negligence per se - which are distinct theories of

recovery under New Hampshire law. See Marquav v. Eno, 139 N.H.

708, 713-16 (1995). In any event, I can discern no basis for

inferring that RSA § 227-L:17, which expressly authorizes certain

damages actions by those injured by fire on land they own, see

RSA § 227-L:17, VI ("Every person who sets fire on any land, that

runs upon the land of any other person, shall pay to the owner

defendant Hartmann originally filed this motion, but the other defendants subsequently were granted leave to join in it. See Document No. 44.

- 2 - all damages done by such fire."), impliedly authorizes an action

of the sort pressed in Count III. I therefore grant defendants'

motion for summary judgment on Count III, but do so without

prejudice to plaintiff seeking leave to proceed against

defendants under a negligence per se theory. See Marquav, 139

N.H. at 713-16.

In her motion for summary judgment against her co-defendants

on her cross-claims under the theory of implied indemnity,

Hartmann asserts that the sole basis for holding her liable would

be as the owner of the parcel of land where her co-defendants

negligently failed to extinguish the brush fire she had hired

them to kindle. See Hamilton v. Volkswagen of America, Inc., 125

N.H. 561, 563-64 (1984) (observing that "[t]he justification for

finding an implied agreement to indemnify in those cases [where

the New Hampshire Supreme Court applied the doctrine of implied

indemnity] rested on the fault of the indemnitor as the source of

the indemnitee's liability in the underlying action and,

conversely, the indemnitee's freedom from fault in bringing about

the dangerous condition"). I disagree. Hartmann's deposition

can be read to suggest that, on July 2, 1998 (the day after the

fire was ignited and the permit to kindle the fire had expired),

- 3 - Hartmann saw that there were still coals and heat coming from the

fire pit but did nothing to cause the fire to be extinguished.

From this, a jury reasonably could infer that Hartmann acquiesced

in her co-defendants' having left the fire unattended without

extinguishing it, in violation of the terms of her permit. Thus,

Hartmann reasonably could be held liable on a basis other than

her status as owner of the property where Zachary was injured.

See Hamilton, 125 N.H. 563-64; see also Sears, Roebuck & Co. v.

Philip, 112 N.H. 282, 286 (1972) (indicating that the implied

indemnity doctrine does not apply where the indemnitee

"discovered and acquiesced in the continuation of the [dangerous]

condition" in question). I therefore deny Hartmann's motion for

summary judgment on her cross-claims.

To summarize, I grant Hartmann's (and by extension

defendants', see supra note 1) motion for summary judgment on

Count III [document no. 40], and deny Hartmann's motion for

summary judgment on her cross-claims [document no. 41]. I also

grant Hartmann's partially assented-to motion to extend time to

reply to defendant Dennis Solinsky's objection to her motion for

summary judgment [document no. 52].

SO ORDERED.

- 4 - Paul Barbadoro Chief Judge

March 6 ,2002 cc: Robin C. Curtiss, Esq. Katherine M. Strickland, Esq. Kenneth G. Bouchard, Esq. Lawrence B. Gormley, Esq. Gordon A. Rehnborg, Jr., Esq.

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