McCarthy v. Weathervane Seafoods

Filing 18

///ORDER granting in part and denying in part 10 Motion for Summary Judgment. Remaining claims as outlined. So Ordered by Judge Joseph A. DiClerico, Jr. (dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Kevin McCarthy
v.

Civil No. 10-cv-395-JD
Opinion No. 2011 DNH 088

Weathervane Seafoods
O R D E R
Kevin McCarthy brings claims of negligence and negligence
per se against Weathervane Seafoods, arising from injuries he
sustained when he fell from a ladder while attempting to climb to
the roof of a Weathervane restaurant to repair a leak.
Weathervane moves for summary judgment, contending that the
negligence claim fails because Weathervane owed no duty to
McCarthy and the negligence per se claim fails due to a lack of a
statutory basis for the claim.

McCarthy objects to the motion.

Background
Weathervane Seafoods operates several restaurants in New
Hampshire, including a restaurant located at 174 Daniel Webster
Highway in Nashua.

During the events at issue in this case,

McCarthy was self-employed as a heating, ventilation, air
conditioning, and refrigeration technician doing business as

Maxair.1

McCarthy was approved to provide service to the HVAC

units at Weathervane restaurants, including the Nashua
restaurant, and had provided service on several occasions before
the accident that is the basis for this case.
On June 13, 2010, Jennifer Burgess, Assistant Manager at the
Nashua Weathervane restaurant, asked McCarthy to inspect and
repair a leak in the roof of the restaurant.

McCarthy inspected

the leak from the kitchen area and then decided he would have to
go up on the roof.

McCarthy had been told previously that there

was a ladder chained to a pipe behind the restaurant, which was
used to access the roof.

McCarthy found the ladder, unchained

it, and extended it up the side of the restaurant.
watched McCarthy set and climb the ladder.

Burgess

As McCarthy got near

the top of the ladder, the bottom slipped out, and he fell.
McCarthy was badly injured in the fall.

Standard of Review
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”

1

Heating, ventilation, and air conditioning is commonly
abbreviated as “HVAC.”
2

Fed. R. Civ. P. 56(c).

A party opposing a properly supported

motion for summary judgment must present competent evidence of
record that shows a genuine issue for trial.

See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

All reasonable

inferences and all credibility issues are resolved in favor of
the nonmoving party.

See id. at 255.

Discussion
Weathervane moves for summary judgment on the grounds that
McCarthy cannot prove his negligence claim because Weathervane
did not owe him a duty to protect against an open and obvious
danger and because Weathervane did not know nor should it have
known of the slippery condition where the ladder was located.
Weathervane also contends that McCarthy failed to state a
negligence per se claim.

McCarthy objects, arguing that

Weathervane breached its duty of reasonable care and duty to warn
and that his negligence per se claim is based, properly, on
Occupational Safety and Health Administration (“OSHA”)
regulations and New Hampshire regulations.

A.

Negligence
“To recover for negligence, a plaintiff must demonstrate

that the defendant had a duty, that he breached that duty, and
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that the breach proximately caused injury to the plaintiff.”
Pesaturo v. Kinne, --- A.2d ---, 2011 WL 723138, at *5 (N.H. Feb.
25, 2011).

“Whether a duty exists in a particular case is a

question of law.”
1, 7 (2010).

Coan v. N.H. Dep’t of Envtl. Servs., 161 N.H.

Pertinent to this case, “premises owners are

governed by the test of reasonable care under all the
circumstances in the maintenance and operation of their
premises.”

Rallis v. Demoulas Super Mkts., Inc., 159 N.H. 95, 99

(2009).
In his negligence count, McCarthy alleges that Weathervane
“failed to provide a safe and secure restaurant, ladder, rear
exterior of the restaurant or roof of the restaurant.”
16.

Compl. ¶

More specifically, McCarthy alleges that Weathervane

“allowed a hazardous condition to exist in the area where the
ladder had been placed causing the ladder to slide out from under
Mr. McCarthy.”

Compl. ¶ 17.

Weathervane challenges the claim to

the extent that McCarthy alleges negligence because the ladder
with which he was provided was too short.

In response, McCarthy

defends his negligence claim on the ground that Weathervane was
negligent because the area where the ladder was placed was
slippery due to grease build-up.

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1.

Ladder

McCarthy alleges, in part, that Weathervane failed to
provide a safe and secure ladder because the ladder was too short
to provide safe access to the roof.

Weathervane contends, in

support of summary judgment, that even if the ladder it provided
was too short, that defect was open and obvious.

A landowner

does not have a duty to warn or instruct of a dangerous condition
on the premises if it is open and obvious.

See Reed v. Nat’l

Council of Boy Scouts of Am., Inc., 706 F. Supp. 2d 180, 187
(D.N.H. 2010).
In objecting to summary judgment, McCarthy does not respond
to Weathervane’s argument that the alleged defect in the ladder
was open and obvious.

Instead, McCarthy focuses on the slippery

condition of the area where the ladder was located.

Because

McCarthy does not pursue a claim that Weathervane was negligent
for providing a ladder that was too short, Weathervane is
entitled to summary judgment on that part of the negligence
claim.

2.

Condition of the Back Dock Area

“A premises owner owes a duty to entrants to use ordinary
care to keep the premises in a reasonably safe condition, to warn
entrants of dangerous conditions and to take reasonable
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precautions to protect them against foreseeable dangers arising
out of the arrangements or use of the premises.”
N.H. at 99 (internal citation omitted).

Rallis, 159

“[A] premises owner is

subject to liability for harm caused to entrants on the premises
if the harm results either from: (1) the owner’s failure to carry
out his activities with reasonable care; or (2) the owner’s
failure to remedy or give warning of a dangerous condition of
which he knows or in the exercise of reasonable care should
know.”

Id.

Weathervane contends that McCarthy cannot provide evidence
that it knew or should have known that the area behind the
restaurant where the ladder was located was slippery.

In

response, McCarthy provides the following evidence pertaining to
Weathervane’s knowledge of the slippery condition behind the
restaurant.
Diane Pearson was the general manager of the Nashua
Weathervane restaurant.

She testified in her deposition that

during the frying operations at the restaurant, the cooks skim
debris out of the frying oil and put it into an empty cardboard
box.

When necessary, one of the cooks takes the box out to the

dumpster behind the restaurant.

The grease in the boxes drips

onto the pavement behind the restaurant, known as the back dock
area, on the way to the dumpster.
6

The restaurant managers

discussed the problem of grease buildup in the back dock area,
and the grease problem had to be addressed daily.

Ms. Pearson

also testified that company policy required the back dock area to
be kept clean from grease and oil and not to be slippery.
A former kitchen supervisor testified in his deposition that
grease from the fryers was permanently on the pavement in the
back dock area.

Jennifer Burgess and another employee testified

that they had used a power washer with degreaser to clean the
back dock area until the power washer broke, two months before
McCarthy’s accident.

Weathervane did not replace the power

washer, so the employees used a less powerful hose without
degreaser to try to clean the area.
The Weathervane regional manager testified that he checked
the back dock area at the Nashua restaurant regularly.

He said

that he was checking for cleanliness, trash, and to be sure that
it was grease-free.

He stated that grease in the back dock area

was a safety concern.

The regional manager testified that when

grease built up in the area, the employees were supposed to clean
it or, if necessary, hire someone who could clean it.

He also

testified that he had reviewed comments in forms from the Nashua
Weathervane about grease buildup in the back dock area.
After the fall, McCarthy was treated by EMTs from the
Rockingham Regional Ambulance service.
7

One EMT who was kneeling

next to McCarthy to provide treatment noticed when he stood up
that the knees of his pants and tips of his shoes were coated
with a significant amount of grease.

He said that the grease

smelled like fish and required several washings to remove.
McCarthy’s evidence of grease on the pavement in the back
dock area where he attempted to use the ladder to access the roof
demonstrates at least a disputed issue of fact as to whether
Weathervane knew or should have known that the grease that
accumulated there was a safety issue.

Although Weathervane

states that McCarthy inspected the area where he put the ladder,
the evidence cited in support of that statement was not provided
in the record.

In contrast, McCarthy provided his interrogatory

answer in which he stated that after falling he noticed the
pavement was covered with grease and that he could not have seen
the grease before climbing the ladder because it was lightly
raining which caused all of the pavement to appear to be wet.
Therefore, Weathervane has not shown that it is entitled to
summary judgment on McCarthy’s negligence claim based on the
slippery condition of the back dock area.

B.

Negligence Per Se
In Count II of his complaint, McCarthy alleges negligence

per se, stating that Weathervane “is responsible for operating
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the restaurant in compliance with Federal and State labor laws
and regulations” and “[i]n particular, Weathervane Seafoods is
responsible for complying with OSHA regulations and New Hampshire
state laws pertaining to ladder safety.”

Compl. ¶¶ 23 & 24.

McCarthy further alleges that “the Weathervane Seafoods failed to
comply with OSHA and New Hampshire state laws pertaining to
ladder safety.

See e.g. RSA 277:2.”

Id. ¶ 25.

McCarthy

continues by alleging that Weathervane allowed “an unsafe and non
OSHA or New Hampshire compliant ladder to be used to access the
roof of the restaurant.”

Id.

Under the negligence per se doctrine, the standard of
conduct is provided by statute.

Mahan v. N.H. Dep’t of Admin.

Servs., 141 N.H. 717, 754 (1997).

The negligence per se doctrine

applies if “the injured person is a member of the class intended
by the legislature to be protected, and . . . [if] the harm is of
the kind which the statute was intended to prevent.”
(internal quotation marks omitted).

Id.

In addition, “[a]n implicit

element of this test is whether the type of duty to which the
statute speaks is similar to the type of duty on which the cause
of action is based.”

Id. (internal quotation marks omitted).

Weathervane contends that McCarthy’s negligence per se claim
fails because the New Hampshire statute cited, Revised Statutes
Annotated (“RSA”) § 277:2, is inapposite to the circumstances in
9

this case, because OSHA regulations cannot provide the basis for
a negligence per se claim, and because McCarthy cannot add new
grounds for the claim in response to a motion for summary
judgment.

In response, McCarthy contends that he cited RSA 277:2

only as an example of a statute pertaining to the ladder provided
by Weathervane, cites New Hampshire Labor regulations as the
basis for his claim, and argues that OSHA regulations can support
a negligence per se claim.

Weathervane responds, arguing that

McCarthy cannot add new bases for his negligence per se claim
that were not in the complaint and that OSHA regulations cannot
be the basis for a negligence per se claim.

1.

RSA 277:2.

RSA chapter 277 governs employment by “the state or any of
its political subdivisions.”

RSA 277:1-b,II.

RSA 277:2, which

requires, among other things, that the state or a political
subdivision acting as an employer provide proper protection to
employees who are using a ladder to make repairs, does not apply
to Weathervane, which is not the state or one of its political
subdivisions.

Therefore, to the extent McCarthy’s negligence per

se claim is based on RSA 277:2, Weathervane is entitled to
summary judgment.

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2.

State Regulations

McCarthy argues in his objection to summary judgment that
certain New Hampshire labor regulations pertaining to ladders are
the basis for his negligence per se claim.

McCarthy also argues

that Weathervane was negligent per se because the build up of
grease in the back loading area violated certain sections of the
International Building Code and International Property
Maintenance Code, incorporated into New Hampshire law by RSA 155A:2.

Weathervane responds that McCarthy cannot identify new

grounds for his claim for purposes of avoiding summary judgment.
Ordinarily, a plaintiff cannot assert new claims in
response to a motion for summary judgment that were not alleged
in the complaint.

See In re Citigroup, Inc., 2011 WL 1326368, at

*2 n.3 (D. Mass. March 31, 2011); Ocasio v. Hogar Geobel Inc.,
693 F. Supp. 2d 167, 172 (D.P.R. 2008).

With respect to claims

for negligence per se, many courts have held that a plaintiff
must identify a particular statute to state the claim.

See,

e.g., Megino v. Linear Fin., 2011 WL 53086, at *7 (D. Nev. Jan.
6, 2011); Anchundia v. Northeast Utilities Serv. Co, 2010 WL
2400154, at *5 (E.D.N.Y. June 11, 2010); Chappey v. Ineos USA
LLC, 2009 WL 790194, at *3 (N.D. Ind. March 23, 2009); ADT
Security Servs., Inc. v. Swenson, 687 F. Supp. 2d 884, 893 (D.
Minn. 2009); In re September 11 Prop. Damage & Bus. Loss Litig.,
11

468 F. Supp. 2d 508, 522-23 (S.D.N.Y. 2006); Holler v. Cinemark
USA, Inc., 185 F. Supp. 2d 1242, 1244 (D. Kan. 2002).

Other

courts have held that the complaint satisfies the notice pleading
requirement if it at least alleges the particular conduct that
“clearly violates a statute or regulation.”

Welch v. Loftus, ---

F. Supp. 2d ---, 2011 WL 743417, at *3 (S.D. Miss. Feb. 23,
2011); see also Resolution Trust Corp. v. Hays, 1993 WL 302150,
at *5 (W.D. Tex. March 29, 1993).
In this case, McCarthy alleges that Weathervane’s failure to
adhere to New Hampshire’s laws pertaining to ladder safety
constituted negligence per se.

In his objection, McCarthy

identifies New Hampshire Code of Administrative Rules, Labor
1403.30, and contends that the ladder provided by Weathervane was
too short, in violation of the regulation.

McCarthy also

represents that he identified Labor 1403.30 as a basis for his
negligence per se claim in discovery provided to Weathervane.
Given McCarthy’s pleadings and the disclosure of Labor 1403.30,
specifically, in discovery, that part of McCarthy’s negligence
per se claim is not a new claim for purposes of summary judgment.
McCarthy also asserts in his objection that his negligence
per se claim is based on the slippery condition of the back area
where the ladder was located and contends that the slippery
condition violated Section 116 of the International Building Code
12

and Section 302.1 of the International Property Maintenance Code.
McCarthy did not allege the slippery condition in his complaint
as a basis for his negligence per se claim and did not reference
the International Building Code or the International Property
Maintenance Code.

McCarthy also does not suggest that he

disclosed those bases for his claim before including them in his
objection to summary judgment.
Because McCarthy did not allege the factual basis for
negligence per se based on slippery conditions or either Code
that he now cites, those grounds for his negligence per se claim
were not part of his complaint.

McCarthy cannot raise a new

claim in his objection to summary judgment.

3.

OSHA Violations

In his negligence per se count, McCarthy alleges that
Weathervane was required to comply with OSHA regulations
pertaining to ladder safety and that its failure to do so
constituted negligence per se.

Weathervane contends that OSHA

violations cannot be a basis for negligence per se and do not
apply to an independent contractor.

McCarthy argues that OSHA

violations can constitute negligence per se in the circumstances
of his accident.

13

The New Hampshire Supreme Court has not decided whether a
violation of an OSHA regulation could support a state law claim
for negligence per se.2

In Pratico v. Portland Terminal Co., 783

F.2d 255, 262-63 (1st Cir. 1985), the plaintiff asserted a
negligence per se claim under the Federal Employers’ Liability
Act (“FELA”) on the ground that the defendant’s actions, which
caused his injuries, violated OSHA regulations.

The court

concluded that the cited OSHA safety regulations applied to the
device in question and to the railroad industry and held that
FELA permitted claims for negligence per se.

The court further

decided that OSHA did not preclude a negligence per se claim
under FELA based on violation of an OSHA regulation.

Id. at 266.

Several years later, however, the court considered whether
violation of an OSHA regulation could constitute negligence per
se for purposes of a state law cause of action.
Warren Co., 134 F.3d 1, 4 (1st Cir. 1998).

Elliott v. S.D.

The court noted that

the decision in Pratico was made in the context of a FELA claim,
not a state law claim, and that the case law had evolved in the
intervening years.

Id.

Based on cases decided after Pratico,

2

In Mailhot v. C & R Constr. Co., 128 N.H. 323, 324 (1986),
the plaintiffs argued that the trial judge should have given a
jury instruction on negligence per se based on the defendant’s
violation of certain OSHA regulations. The court declined to
decide the question because the plaintiffs failed to raise it at
trial. Id.
14

the court concluded that OSHA regulations cannot provide the
basis for state law claims of negligence per se.3

Id. at 4-5

(citing cases including Pedraza v. Shell Oil Co., 94 F.2d 48 (1st
Cir. 1991)).

The court also stated that “Pratico involved an

FELA claim and the case’s holding is properly limited to causes
of action brought under that statute.”

Elliott, 134 F.3d at 4.

Therefore, the First Circuit has held that a state law
negligence per se claim cannot be based on a violation of an OSHA
regulation.

Weathervane is entitled to summary judgment on

McCarthy’s negligence per se claim to the extent it is based on
an OSHA violation.
Weathervane also argues that even if an OSHA violation could
support a negligence per se claim, OSHA regulations apply to
employers and therefore do not apply in the circumstances of this
case where McCarthy was an independent contractor.

See Keller v.

United States, 38 F.3d 16, 28 n.5 (1st Cir. 1994).

That issue

need not be resolved in light of the First Circuit’s holding in
Elliot that OSHA violations cannot be the basis for state law
negligence per se claims.

3

The court next considered Maine law on the issue and
concluded that Maine also would not recognize OSHA regulations as
a basis for a negligence per se claim. Elliot, 134 F.3d at 5.
The decision in Elliot is not based on Maine law, however, as
McCarthy contends.
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Conclusion
For the foregoing reasons, the defendant’s motion for
summary judgment (document no. 10) is granted to the extent that
the plaintiff’s negligence claim is based on a theory that the
ladder provided was too short and to the extent the negligence
per se claim is based on RSA 277:2, violation of the
International Building Code or the International Property
Maintenance Code due to a slippery condition, and OSHA
regulations.

The motion is otherwise denied.

The plaintiff’s remaining claims are:
(1) negligence based on the alleged slippery condition of
the area where the ladder was located, and
(2) negligence per se based on an alleged violation of New
Hampshire Administrative Code, Labor 1403.30.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
June 1, 2011
cc:

John L. Arnold, II, Esquire
David M. Bae, Esquire
Thomas J. Fay, Esquire
Andrew Ranks, Esquire
Martha Van Oot, Esquire
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