Dean Strang & a. v. Christmas Island Resort Condominium Association & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0222, Dean Strang & a. v. Christmas
Island Resort Condominium Association & a., the court on
February 23, 2024, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
plaintiffs, Dean Strang and Audra Lewis, appeal an order of the Superior Court
(O’Neill, J.) granting the defendants’, Christmas Island Resort Condominium
Association (Christmas Island) and Evergreen Harvard Group, LLC (Evergreen),
motion for summary judgment. We vacate and remand.

The following facts are drawn from the trial court’s orders, are supported
by the summary judgment record, or are otherwise undisputed. Christmas
Island is a condominium association. It retained Evergreen to provide property
management services to its properties and grounds. The plaintiffs, a married
couple, own a house in a development, Lake Houses of Christmas Island (Lake
Houses), that abuts Christmas Island’s property. The development and the
Christmas Island condominiums are separated by a gated bridge, which
connects the island, where the Christmas Island condominiums are located, to
the mainland. Near the entrance to the bridge, on the mainland, and next to
the plaintiffs’ house — but on Christmas Island property — is a gazebo owned
by Christmas Island, which is at the center of this dispute.

On Memorial Day 2018, Strang hung flower planters from hangers on the
Christmas Island gazebo. In early June 2018, the Christmas Island Property
Manager emailed the Lake Houses Board President asking the Board President
to remind Lake Houses residents that “Christmas Island is private property for
the exclusive use of the residents.” The Board President forwarded this email
to Lewis, who in her capacity as Lake Houses Board Secretary, sent an email to
all Lake Houses residents reminding them that “anything over on Christmas
Island was private property.” Strang received this email. On July 6, 2018,
when Strang stood on the gazebo bench to reach one of the hanging planters to
water the flowers, the bench broke, causing him to fall and injure his left
ankle. It is undisputed that the bench showed no readily observable
manifestations of decay.

On January 22, 2020, the plaintiffs filed suit against the defendants
sounding in negligence: that the defendants owed Strang a duty of care to
inspect or maintain the gazebo and breached that duty. Lewis also filed a loss
of consortium claim against each defendant. The parties filed cross-motions
for summary judgment. The trial court granted the defendants’ motion, and
denied the plaintiffs’ motion, ruling that Strang “intruded on [Christmas
Island’s] property against its will” and, therefore, Christmas Island owed him
no duty. The plaintiffs filed a motion to reconsider, which the trial court
denied.

We review the trial court’s grant of summary judgment de novo. Burnap
v. Somersworth Sch. Dist., 172 N.H. 632, 636 (2019). Summary judgment is
appropriate if, in the absence of genuine issues of material fact, the moving
party is entitled to judgment as a matter of law. Id. When reviewing the trial
court’s rulings on cross-motions for summary judgment, we consider the
evidence in the light most favorable to each party in its capacity as the
nonmoving party. Franciosa v. Hidden Pond Farm, 171 N.H. 350, 354 (2018).
To recover for negligence, the plaintiffs must show that the defendants owed a
duty to Strang, the breach of which caused the injury for which he now seeks
to recover. See Morse v. Goduti, 146 N.H. 697, 699 (2001).

On appeal, the plaintiffs contend that the trial court erred when it
granted the defendants’ motion for summary judgment on the basis that the
defendants owed Strang no duty of care. Specifically, the plaintiffs argue that
the trial court erred when it considered only the narrow question of the
character of Strang’s entry into the gazebo and failed to do a full premises
liability analysis according to our precedent. See, e.g., Ouellette v. Blanchard, 116 N.H. 552, 557 (1976). Additionally, the plaintiffs argue that there are
disputed issues of material fact that preclude summary judgment: (1) whether
Strang, despite knowing the directives of Christmas Island, intruded on
Christmas Island’s mainland gazebo; and (2) whether the risk of harm and of
Strang’s injuries in relation to the “intertwined duty of care of the Defendants”
was foreseeable. The defendants counter that there is no genuine issue of
material fact as to whether Strang intruded on Christmas Island’s property
against its will, and that the defendants owed Strang no duty because it was
not foreseeable that Strang’s injury would occur as a result of the defendants’
actions or inaction. We agree with the plaintiffs that the trial court erred when
it failed to undertake a full premises liability analysis.

In order to prove actionable negligence, a plaintiff must establish that the
defendant owed a duty to the plaintiff, that the defendant breached the duty,
and that the breach proximately caused the claimed injury. Estate of Joshua
T. v. State, 150 N.H. 405, 407 (2003). With respect to landowners, we have
long held that as a general rule all owners and occupiers of land are governed
by the test of reasonable care under all of the circumstances in the
maintenance and operation of their property. See Ouellette, 116 N.H. at 557.
Ouellette laid out the following test for determining premises liability:

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 The character of and circumstances surrounding the intrusion will be
relevant and important in determining the standard of care applicable to
the landowner. When the intrusion is not foreseeable or is against the
will of the landowner many intruders will be denied recovery as a matter
of law. In other words, a landowner cannot be expected to maintain his
premises in a safe condition for a wandering tramp or a person who
enters against the known wishes of the landowner. Essentially the
traditional tort test of foreseeability determines the liability or nonliability
of the landowner in these cases.

Id.

Under our law, in order for a duty to exist on the part of a landowner, it
must be foreseeable that an injury might occur as a result of the landowner’s
actions or inactions. Kellner v. Lowney, 145 N.H. 195, 198 (2000). Generally,
persons will not be found negligent if they could not reasonably foresee that
their conduct would result in an injury to another or if their conduct was
reasonable in light of the anticipated risks. Id. Thus, duty and foreseeability
are inextricably bound together. Id.

In determining whether the defendants owed Strang a duty, the trial
court erred when it considered only whether Strang entered the gazebo against
the will of Christmas Island. The character of Strang’s entry upon Christmas
Island’s land is but one factor to be considered when determining whether the
defendants owed Strang a duty. See, e.g., Ouellette, 116 N.H. at 557.
Therefore, even if we assume in the defendants’ favor that the trial court was
correct in treating Strang as a trespasser, that conclusion, standing alone, is
insufficient to reach the conclusion that the defendants owed him no duty.

Because we conclude that the trial court did not perform a complete
premises liability analysis, we vacate the trial court’s ruling that the defendants
owed Strang no duty and remand. See Huguelet v. Allstate Ins. Co., 141 N.H.
777, 780 (1997) (vacating grant of motion to dismiss and remanding for trial
court to determine in the first instance whether plaintiffs amended writ failed
to state cause of action). On remand, the trial court should undertake a more
robust and complete foreseeability analysis, determine whether the defendants
owed Strang a duty, and if so, consider the nature and extent of that duty.

Vacated and remanded.

MACDONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred; HICKS, J., sat for oral argument but did not participate in the
final vote, see N.H. CONST. pt. II, art. 78.
Timothy A. Gudas,
Clerk

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