McCarthy v. Weathervane Seafoods

Filing 26

///ORDER granting 24 Motion for Partial Summary Judgment. Plaintiffs remaining claim is: (1) negligence based on the alleged slippery condition of the area where the ladder was located. 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 137

Weathervane Seafoods
O R D E R
Kevin McCarthy alleged claims of negligence and negligence
per se against Weathervane Seafoods after he was injured in a
fall from a ladder while attempting to climb to the roof of a
Weathervane restaurant to repair a leak.

Weathervane moves for

partial summary judgment, contending that McCarthy’s remaining
negligence per se claim fails because Labor 1403.30 does not
apply to independent contractors such as McCarthy who provide
services to private entities such as Weathervane.

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.
Weathervane moved 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.

Weathervane’s motion for summary

judgment was granted in part and denied in part.

Weathervane

moved for reconsideration, asking that summary judgment be

1

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

granted in its favor on McCarthy’s remaining negligence per se
claim based on New Hampshire Code of Administrative Rules, Labor
1403.30.

Weathervane’s motion for reconsideration was denied

because it challenged McCarthy’s claim on grounds that
Weathervane failed to raise in its motion for summary judgment.

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.”
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
In Count II of his complaint, McCarthy alleges negligence
per se, stating that Weathervane “is responsible for operating
the restaurant in compliance with . . . State labor laws and
regulations” and “[i]n particular, Weathervane Seafoods is
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responsible for complying with . . . New Hampshire state laws
pertaining to ladder safety.”

Compl. ¶¶ 23 & 24.

McCarthy

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

Id.

McCarthy’s remaining negligence

per se claim is based on Weathervane’s alleged violation of Labor
1403.30, an Administrative Rule containing safety requirements
for fixed and portable ladders.
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 moves for partial summary judgment on McCarthy’s
remaining negligence per se claim on the grounds that Labor
1403.30 is, as a matter of law, inapplicable to independent
contractors providing services to private businesses.

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McCarthy

objects, arguing that Labor 1403.30 is applicable to the facts of
this case.
“It is well settled that the legislature may delegate to
administrative agencies the power to promulgate rules necessary
for the proper execution of the laws.”

In re Mays, 161 N.H. 470,

473 (2011) (internal citation omitted).

However, “administrative

rules may not add to, detract from, or modify the statute which
they are intended to implement.

The authority to promulgate

rules and regulations is designed only to permit the
[administrative agency] to fill in the details to effectuate the
purpose of the statute.”

In re Anderson, 147 N.H. 181, 183

(2001) (internal citations and quotation marks omitted).
New Hampshire Code of Administrative Rules, Labor 1400 et.
seq., “is intended to carry out the intent of RSA 281-A:64 and
RSA 277:16 by establishing procedures and guidelines for
workplace safety inspections.”

N.H. Code Admin. R. 1401.01.

Therefore, the rules provided in Labor 1400 et. seq. are limited
in scope to furthering the purpose of RSA 281-A:64 and RSA
277:16.
RSA 281-A, the “Workers’ Compensation Law,” is, by its plain
language, applicable only to employers and employees, as opposed
to independent contractors.

See RSA 281-A:2,VI; In re Ann Miles

Builder, Inc., 150 N.H. 315, 320 (2003).
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McCarthy does not

contend that he was Weathervane’s employee and acknowledges that
he performed services for Weathervane only as an independent
contractor.

Therefore, McCarthy was not Weathervane’s “employee”

under RSA 281-A and, as such, RSA 281-A:64 does not apply to
McCarthy.
RSA chapter 277 governs employment by “the state or any of
its political subdivisions.” RSA 277:1-b,II.

RSA 277:16 allows

the Labor Commissioner to adopt such rules as he deems necessary
to carry out certain safety provisions of the statute.

Because

RSA 277 applies only to the state or any of its political
subdivisions, however, any rule adopted by the Commissioner
pursuant to RSA 277:16 applies only to those entities, and,
therefore, does not apply to Weathervane, a private entity.
Because McCarthy was not an “employee” of Weathervane under
RSA 281-A and because RSA 277 applies only to the state or its
political subdivisions, McCarthy is not a member of the class
intended by the legislature to be protected by either statute.
Therefore, McCarthy is not a member of the class intended to be
protected by Labor 1403.30.

Weathervane is entitled to summary

judgment on McCarthy’s negligence per se claim based on a
violation of Labor 1403.30.

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Conclusion
For the foregoing reasons, the defendant’s motion for
partial summary judgment (document no. 24) is granted.
The plaintiff’s remaining claim is:
(1) negligence based on the alleged slippery condition of
the area where the ladder was located.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
September 8, 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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