Lussier v. New Meditrust Co. CV-00-74-B 07/10/01

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Maureen Lussier and Michael Lussier

v. Civil No. 00-074-B

New Meditrust Company, LLC

MEMORANDUM AND ORDER

On January 1 8 , 1997, Maureen Lussier slipped and fell on

steps at the Lakeview Neurorehabilitation Center in Effingham

Falls, New Hampshire. Lussier and her husband, Michael, filed

suit in Carroll County Superior Court against New Meditrust

Company, LLC (“Meditrust”), the owner of the property, asserting

negligence and loss of consortium claims. Meditrust removed the

action to this Court on the basis of diversity jurisdiction. See

. I have before me Meditrust’s motion for

summary judgment. For the reasons discussed herein, I grant its

motion. I. BACKGROUND1

Maureen Lussier was working at the time of the accident as a

nurse supervisor for the Lakeview Neurorehabilitation Center

(“Lakeview”). She alleges that on the evening of Saturday,

January 1 8 , 1997, she slipped on icy stairs at Lakeview and, as a

result, sustained multiple injuries. She also alleges that the

stairs had not been cleared of ice and snow that day, nor had

they been treated with sand or salt. Neither Lakeview nor

Meditrust were aware that the stairs had not been properly

cleared or treated.

Pursuant to a Lease Agreement between Meditrust of New

Hampshire, Inc. and Lakeview, Lakeview assumed sole

responsibility for the maintenance and upkeep of the premises.

Meditrust is the successor by merger to Meditrust of New

Hampshire, Inc., which owned the Lakeview premises at the time of

the accident.2 The relevant portions of the Lease Agreement

1 I describe the facts in the light most favorable to the Lussiers, the nonmoving party. See Oliver v . Digital Equip. Corp.,

(1st Cir. 1988). 2 For ease of reference I refer to both Meditrust of New Hampshire, Inc. and New Meditrust Company, LLC as Meditrust throughout this Memorandum and Order.

-2- state:

8.1 Maintenance and Repair 8.1.1 Lessee’s Responsibility. Lessee, at its sole cost and expense, shall keep the Leased Property and all private roadways, sidewalks and curbs appurtenant thereto which are under Lessee’s control in good order and repair (whether or not the need for such repairs occurs as a result of Lessee’s use, any prior use, [or] the elements).

8.1.2 No Lessor Obligation. Lessor shall not, under any circumstances, be required to ... maintain the Leased Property in any way (or any private roadways, sidewalks or curbs appurtenant thereto).

Facility Lease Agreement, Doc. N o . 2 7 , at 35-36. The parties

agree that, although not explicitly mentioned in the Lease

Agreement, Lakeview was responsible for snow and ice removal on

the premises.

Lakeview implemented maintenance policies and procedures for

snow and ice removal but never consulted with Meditrust about

these policies or asked Meditrust to assist with the snow and ice

removal. Lakeview’s maintenance department is in charge of

maintaining the exterior walkways and stairs at Lakeview. The

walkways leading to the bottom of and away from the top of the

relevant stairs are equipped with electric coils which melt snow

and ice. The stairs, however, do not contain coils, and the

-3- maintenance department must shovel, salt, and sand the stairs to

keep them clear of ice and snow. Maintenance personnel are

present on the premises from 7:30 A.M. until 4:00 P.M. Monday

through Friday and remain on-call during the evening and weekend

hours.

II. STANDARD OF REVIEW

Summary judgment is appropriate only “if 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 a judgment as a matter of law.” Fed. R. Civ. P.

56(c). A genuine issue is one “that properly can be resolved

only by a finder of fact because [it] ... may reasonably be

resolved in favor of either party.” Anderson v . Liberty Lobby,

Inc.,

(1986). A material fact is one that

affects the outcome of the suit. See

.

In ruling on a motion for summary judgment, the court must

construe the evidence in the light most favorable to the

non-movant. See Oliver,

. The party seeking

-4- summary judgment, however, “bears the initial responsibility of

informing the district court of the basis for its motion, and

identifying those portions of [the record] ... which it believes

demonstrates the absence of a genuine issue of material fact.”

Celotex Corp. v . Catrett,

(1986). Once the

moving party has properly supported its motion, the burden shifts

to the nonmoving party to “produce evidence on which a reasonable

finder of fact, under the appropriate proof burden, could base a

verdict for i t ; if that party cannot produce such evidence, the

motion must be granted.” Ayala-Gerena v . Bristol Myers-Squibb

Co.,

6 , 94 (1st Cir. 1996) (citing Celotex,

). I apply this standard in ruling on Meditrust’s motion for

summary judgment.

III. DISCUSSION

The Lussiers claim that Meditrust is liable because it

negligently failed to remove snow and ice from the stairs, to

warn Maureen Lussier that the stairs were icy, and to supervise

Lakeview. Plaintiffs also claim that Meditrust is vicariously

liable for Lakeview’s negligence. I first address plaintiffs’

-5- claims that Meditrust is liable because of its own negligence and

then turn to their vicarious liability claim.

A. Meditrust’s Negligence

In a 1973 decision which was thought at the time to be

revolutionary but which has since become widely accepted, the New

Hampshire Supreme Court rejected the common law rule that a

landlord ordinarily cannot be held liable for injuries suffered

by a third party while using a leased premises. See Sargent v .

Ross,

(1973). Thus, the court held, “questions

of control, hidden defects and common or public use, which

formerly had to be established as a prerequisite to even

considering the negligence of a landlord [are] now . . . relevant

only inasmuch as they bear on basic tort issues such as

foreseeability and unreasonableness of the particular risk of

harm.”

The court also determined in a later decision that

exculpatory clauses in commercial leases cannot be enforced

against third parties. In Tanguay v . Marston,

(1986), the court held that while such clauses bind both the

landlord and the tenant, they do not provide the landlord with a

defense to a third party’s negligence claim. See

.

-6- In light of these decisions, Meditrust does not challenge

the Lussiers’ contention that it owed Maureen Lussier a duty to

exercise “reasonable care under all the circumstances in the

maintenance and operation of [its] property.” Ouellette v .

Blanchard,

(1976). Instead, it argues that it

is not liable because it did not act unreasonably.

I agree with Meditrust that it cannot be held liable for its

own alleged negligence on the present record. The Lussiers do

not challenge Meditrust’s claims that: (1) Lakeview leased the

entire property and assumed sole responsibility for ensuring that

the steps on the property were free from snow and ice; (2)

Meditrust had no involvement in routine maintenance activities at

the site; (3) none of Meditrust’s employees knew that Lakeview

had failed to keep the steps clear of snow and ice; and (4) the

ice on the steps did not result from a foreseeable defect in the

design or construction of the steps.

Each of these facts affects my analysis. First, while

Meditrust cannot shift to Lakeview its duty to ensure that its

property is reasonably safe for third parties, see Tanguay,

, it nevertheless is significant both that Meditrust

-7- leased the entire property to Lakeview and that Lakeview assumed

the primary duty under the lease to maintain the property in a

reasonably safe condition. If Maureen Lussier’s accident had

occurred in a common area that Meditrust possessed and controlled

or if Meditrust had agreed to maintain the steps in a safe

condition, its alleged negligence would present a question of

fact for a jury to resolve.

Second, it is important that Meditrust did not actually

involve itself in the maintenance of the facility. If it had

undertaken responsibility for clearing the steps of snow and ice,

it might well be liable for Maureen Lussier’s injuries even

though the lease purported to assign this responsibility

exclusively to Lakeview.

Third, because Meditrust did not have actual notice of

Lakeview’s failure to maintain the steps in a safe condition, it

cannot be held liable based on a failure to act on information

that would have caused a reasonable landlord to correct a

dangerous condition in the leased premises.

Finally, the dangerous condition that allegedly caused

Maureen Lussier’s injuries did not develop until after Meditrust

-8- had relinquished possession of the property. The Lussiers do not

claim that the steps were icy that day because of a defect in the

design or construction of the stairs. Instead, they apparently

contend that Maureen Lussier was injured because Meditrust failed

to properly respond to ice and snow that accumulated on the steps

as a result of a change in the weather.

A landlord’s duty to use reasonable care ordinarily does not

require it to detect and correct dangerous conditions on a leased

premises within the tenant’s exclusive control that develop

because of changes in the weather. See, e.g., Sheehan v . El

Johnan, Inc.,

(Mass. App. C t . 1995) (holding

that an absentee landlord had no duty to his tenant’s employee to

keep the parking lot free from ice and snow where the tenant was

assigned the duty under the lease for “custodial services” and

the landlord was unaware of the unsafe conditions); Festa v .

Waskawic,

5 1 , 252-53 (N.Y. App. Div. 1992) (holding

that a landlord was not liable for a third party’s fall on an icy

sidewalk where the landlord did not know of the dangerous

condition and did not control the tenant’s actions). Because the

Lussiers have failed to identify any other theory under which

-9- Meditrust could be found liable for its own negligence, I grant

Meditrust’s summary judgment motion with respect to these claims.

B. Vicarious Liability

The Lussiers also argue that Meditrust should be held

vicariously liable for Lakeview’s alleged negligence. They rely

on Valenti v . Net Properties Management, Inc.,

(1998), to support their argument. In Valenti, the New Hampshire

Supreme Court held that an owner of a business premises who

employs an independent contractor to maintain the premises

remains vicariously liable for the contractor’s negligence. See

.

I reject the Lussiers’ analogy to Valenti. The court based

its holding on the Restatement (Second) of Torts. See

The

Restatement specifies a variety of circumstances under which a

landowner may be held vicariously liable for the work of an

independent contractor. See Restatement (Second) of Torts §§

414A, 415, 419, 420, 421, 4 2 2 , 425 (1965). It does not, however,

suggest that a landlord should be held vicariously liable for its

tenant’s negligence. Moreover, one of the essential attributes

of a lease, which differentiates it from an agreement between a

-10- landowner and an independent contractor, is that a lease

transfers the landowner’s right to possess its property to the

tenant during the term of the lease. See Restatement (Second) of

Prop.: Landlord & Tenant § 1.2 (1977). Because a landowner loses

the right to possess its property when it executes a lease, it

has far less ability to oversee its tenant’s maintenance

activities than it does to oversee an independent contractor who

is working on property within the landowner’s possession. I f , as

the Lussiers suggest, I were to subject landlords to liability

for their tenants’ negligence, I would be extending the doctrine

of vicarious liability in a manner contemplated by neither the

New Hampshire Supreme Court nor the drafters of the Restatement

(Second) of Torts. Such an extension of state common law is not

an appropriate activity for a federal court.

IV. CONCLUSION

Because I find that Meditrust was not negligent, even when I

construe the facts in the light most favorable to the Lussiers,

-11- Meditrust is entitled to judgment as a matter of law.3

Therefore, I grant Meditrust’s motion for summary judgment, Doc.

No. 1 5 . I direct that the clerk enter judgment in accordance

with this order.

SO ORDERED.

Paul Barbadoro Chief Judge

July 1 0 , 2001

cc: Dona Feeney, Esq. Matthew B . Cox, Esq.

3 Michael Lussier brings a loss of consortium claim arising from his wife’s injuries. Because I find that Meditrust was not negligent, Michael Lussier cannot recover for loss of consortium. See

-a (1997). Therefore, Meditrust also is entitled to summary judgment as to this claim.

-12-