Szewczyk v. Cont'l Paving, Inc.

307 A.3d 502

Andrew SZEWCZYK & a.

v.CONTINENTAL PAVING, INC. & a.

No. 2022-0101

Supreme Court of New Hampshire.

Argued: November 17, 2022

Opinion Issued: August 16, 2023

Hillsborough-northern judicial district

McDowell & Morrissette, P.A., of Manchester (Mark D. Morrissette and Joseph F. McDowell, III on the brief, and Mark D. Morrissette orally), for the plaintiffs.

Desmarais Law Group, PLLC, of Manchester (Debra L. Mayotte on the brief), for defendant Continental Paving, Inc.

Primmer Piper Eggleston & Cramer PC, of Manchester (Gary M. Burt and Brendan D. O’Brien on the brief, and Gary M. Burt orally), for defendant Bellemore Property Services, LLC.

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor general (Emily C. Goering, assistant attorney general, on the brief and orally), for defendant New Hampshire Department of Transportation.

HICKS, J.

The plaintiffs, Andrew Szewczyk and Marian Szewczyk, appeal the following orders of the Superior Court (Nicolosi, J.): (1) an order granting the motion to dismiss filed by defendant New Hampshire Department of Transportation (DOT); (2) orders striking the plaintiffs’ expert reports; and (3) an order granting the motions for summary judgment filed by defendants Bellemore Property Services, LLC (Belle- more) and Continental Paving, Inc. (Continental). We affirm the order granting DOT’s motion to dismiss, and reverse the orders striking the expert reports and granting the motions for summary judgment.

I. Facts

The following facts are drawn from the trial court orders and from the evidence presented to the trial court. Because the plaintiffs appeal orders granting a motion to dismiss and motions for summary judgment, we recite the facts in the light most favorable to the plaintiffs. See Cluff-Landry v. Roman Catholic Bishop of Manchester, 169 N.H. 670, 673, 156 A.3d 147 (2017) (reciting standard for motion to dismiss); Zannini v. Phenix Mut. Fire Ins. Co., 172 N.H. 730, 733-34, 234 A.3d 269 (2019) (reciting standard for summary judgment).

On the evening of October 21, 2016, the plaintiffs were injured in a motor vehicle accident on Route 3 in Nashua. While driving southbound near exit 4, they encountered significant flooding in the left-hand travel lane of the highway, and the vehicle they were traveling in hydroplaned. After the plaintiffs stopped and got out of their car, a second vehicle hydroplaned and struck the plaintiffs’ vehicle, which then struck and injured the plaintiffs. When the police arrived at the scene, they discovered that the flooding had been caused by a clogged catch basin. At the time of the accident, Continental was repaving Route 3 pursuant to a contract with DOT. Continental had subcontracted with Bellemore to clean the catch basins along Route 3.

A catch basin consists of a cast iron metal frame, a top grate, and, in most cases, a polyethelyne liner. The liners used in the project were provided by Continental and consist of two parts that were welded together by a Continental employee. The first part of the liner is a four-foot square top that sits over the entrance to the catch basin. The second part is a cylindrical twenty-inch diameter downspout underneath the first part that extends one foot into the catch basin. Cleaning the catch basins after paving was completed involved passing a metal pipe through the catch basin opening and through the polyethelene liner to vacuum out any debris that had collected in the bottom of the catch basin.

The plaintiffs filed a complaint against DOT, Continental, and Bellemore alleging that the three defendants collectively undertook a repaving and drainage system rehabilitation project and that their combined and individual negligence caused the flooding, which caused the motor vehicle crash that injured the plaintiffs. Shortly after the complaint was filed, DOT filed a motion to dismiss the single count that had been brought against it, arguing that the plaintiffs’ complaint failed to state a claim because the plaintiffs failed to meet the pleading requirements of RSA 230:80, II (2009). The trial court granted the motion to dismiss, and later denied the plaintiffs’ motion to reconsider.

Thereafter, Continental and Bellemore filed motions for summary judgment and motions to strike the opinions of the plaintiffs’ expert, highway engineer Thomas Broderick. Following a hearing, the trial court found that Broderick’s opinion regarding the cause of the clogging of the catch basin was "based entirely on pure speculation without any factual support," and granted the motion to strike Broderick’s expert report, but also granted the plaintiffs leave to supplement their objections to the motions for summary judgment. The plaintiffs filed a supplemental objection, and submitted with it, among other things, an expert report written by a hydrologic/hydraulic engineer, Richard Murphy. Thereafter, the trial court declined to consider Murphy’s opinion on causation and granted the defendants’ motions for summary judgment. The trial court denied the plaintiffs’ motion to re- consider the order, and the plaintiffs appealed.

At issue on appeal are whether the trial court erred when it granted: (1) DOT’S motion to dismiss after finding that it was immune from liability pursuant to RSA 230:78-:80 (2009); (2) the defendants’ motions to strike the opinions of the plaintiffs’ experts; and (3) the defendants’ motions for summary judgment.

II. Analysis

A. DOT’s Motion to Dismiss

The plaintiffs’ complaint asserted one count of negligence against DOT. The complaint alleged that DOT was "actively involved" in resurfacing the central turnpike from Nashua to Concord, including the area of the October 21, 2016 accident. It further alleged that DOT "knew or should have, been aware of the flooding and clogging of the catch basins," and that it "had the affirmative duty to maintain the highway in a reasonably safe condition, and to repair any defect or known hazards."

DOT moved to dismiss, arguing that it is immune from liability pursuant to RSA 230:78-:80. The trial court granted DOT’s motion and denied the plaintiffs’ motion to reconsider.

[1–3] In reviewing a trial court’s ruling granting a motion to dismiss, we consider whether the allegations in the plaintiffs’ pleadings are reasonably susceptible of a construction that would permit recovery. Cluff-Landry, 169 N.H. at 673, 156 A.3d 147. We assume the truth of the facts as alleged in the plaintiffs’ pleadings and construe all reasonable inferences in the light most favorable to the plaintiffs. Id. We need not, however, assume the truth of statements in the plaintiffs’ pleadings that are conclusions of law, id., and will uphold the granting of a motion to dismiss if the facts pled do not constitute a legal basis for relief. Beane v. Dana S. Beane & Co., 160 N.H. 708, 711, 7 A.3d 1284 (2010). For the reasons that follow, we conclude that the plaintiffs have not pled facts sufficient to constitute a legal basis for relief, and that DOT is immune from liability pursuant to RSA 230:78-:80.

RSA 230:80,1, provides, in relevant part, that DOT "shall not be held liable for damages in an action to recover for personal injury or property damage arising out of its construction, maintenance, or repair of public highways … unless such injury or damage was caused, by an insufficiency, as defined by RSA 230:78." RSA 230:80, I. A highway is "insufficient" if it is: (1) not passable in any safe manner; or (2) "[t]here exists a safety hazard which is not reasonably discoverable or reasonably avoidable by a person who is traveling upon such highway" in a lawful manner. RSA 230:78. RSA 230:80, I, also provides, in relevant part, that DOT "shall not be held liable for damages in an action to recover for personal injury or property damage arising out of its construction, maintenance, or repair of public highways" unless caused by an "insufficiency" and:

(a) The department of transportation received a notice of such insufficiency as set forth in RSA 230:78, but failed to act as provided by RSA 230:79; or

(b) The commissioner of the department of transportation who is responsible for, maintenance and repair of highways or highway bridges, had actual notice or knowledge of such insufficiency, by means other than notice pursuant to RSA 230:78 and was grossly negligent or exercised bad faith in responding or failing to respond to such actual knowledge; or

(c) The condition constituting the insufficiency was created by an inten- tional act of an employee acting in the scope of his official duty while in the course of his employment, acting with gross negligence, or with reckless disregard of the hazard.

RSA 230:80, I.

[4] The plaintiffs argue that the "insufficiency" on the roadway was not the flooding, but rather, the clogged catch basin. DOT counters that the insufficiency was the excessive water on the road at the time of the accident. We agree with the trial court that it is unnecessary to resolve this question because, in either case, the plaintiffs’ complaint does not allege that a notice of insufficiency, consistent with RSA 230:78, I, was provided to DOT, or that the commissioner had actual notice or knowledge of the insufficiency prior to the accident. The plaintiffs argue that notice can be imputed to DOT because DOT is the owner of the highway and the architect of the construction project, it oversaw the construction work, it was required to approve and accept the work done, and it did not properly test the systems after the project was completed. The plaintiffs also argue that the defendants "created a plain and foreseeable hazard," and that, therefore, "no independent ‘notice’ of same is called for." We disagree.

The same reasoning that led us to reject the "naked legal conclusion' that the State must have had notice based on the State’s responsibility for highway maintenance" in Bowden v. Commissioner, New Hampshire Department of Transportation, 144 N.H. 491, 499, 743 A.2d 1287 (1999),...