Cited by

3 and safety of the employees”); Rounds v. Standex International, 131 N.H. 71, 76 (1988), abrogated on other grounds by RSA 281-A:8, I(b) (2010) (“The maintenance of a safe workplace, including suitable machinery and tools, is the duty of the employer.”); Kennedy v. U.S. Const. Co., 545 F.2d 81, 84 (8th Cir. 1976) (reasoning that “ordinarily it is the obligation of a subcontractor to supply his

For instance, employers have a nondelegable duty to maintain a safe workplace, see Rounds v. Standex International, 131 N.H. 71, 76 (1988).

When reviewing the grant of a motion to dismiss, we must determine “whether the allegations [in the plaintiff’s pleadings] are reasonably susceptible of a construction that would permit recovery.” Rounds v. Standex International, 131 N.H. 71, 74, 550 A.2d 98, 100 (1988) (quotation omitted).

We held that co-employee immunity as recognized in Rounds v. Standex Inter national, 131 N.H. 71, 550 A.2d 98 (1988), “[did] not require the conclusion that a third party could not be held liable if it had independently undertaken a responsibility for keeping the employees safe from workplace accidents.” Leeman, 134 N.H. at 236, 590 A.2d at 614.

The defendants filed a motion to dismiss, arguing that our holding in Rounds v. Standex International, 131 N.H. 71, 550 A.2d 98 (1988), barred actions against co-employees for breach of the nondelegable duty to provide a safe workplace.

“In order to recover for negligence, a plaintiff must show that ‘there exists a duty, whose breach by the defendant causes the injury for which the plaintiff seeks to recover.’” Goodwin v. James, 134 N.H. 579, 583, 595 A.2d 504, 507 (1991) (quoting Rounds v. Standex International, 131 N.H. 71, 76, 550 A.2d 98, 101 (1988)); see also W. Keeton et al., Prosser and Keeton on the Law of Torts § 30, at 164-65 (5th ed. 1984).

In order to recover for negligence, a plaintiff must show that “there exists a duty, whose breach by the defendant causes the injury for which the plaintiff seeks to recover.” Rounds v. Standex International, 131 N.H. 71, 76, 550 A.2d 98, 101 (1988).

The superior court ruled that the plaintiffs’ pleadings failed to allege adequately a breach of duty owed by BS&G that was sufficiently distinct from OA’s duty, as Mr. Leeman’s employer, to provide a safe workplace, and that Rounds v. Standex International, 131 N.H. 71, 550 A.2d 98 (1988), therefore barred recovery.

JOHNSON, J. The plaintiff appeals from two orders of the Superior Court {Gray, J.), one granting the defendant’s motion to dismiss *453 based on the rule announced by this court in Rounds v. Standex International, 131 N.H. 71, 550 A.2d 98 (1988), and the other denying the plaintiff’s motion for reconsideration.

We must, as the trial court was required to, determine “whether the allegations [in the plaintiff’s pleadings] are reasonably susceptible of a construction *745 that would permit recovery.” Rounds v. Standex International, 131 N.H. 71, 74, 550 A.2d 98, 100 (1988) (quoting Collectramatic, Inc. v. Kentucky Fried Chicken Corp., 127 N.H. 318, 320, 499 A.2d 999, 1000 (1985), itself quoting Royer Foundry & Mach.

Approximately two years later, on November 4, 1988, we issued our decision in Rounds v. Standex International, 131 N.H. 71, 550 A.2d 98 (1988), in which we held that an employee may not sue a co-employee for injuries resulting from negligence where the co-employee is carrying out the employer’s nondelegable duty to maintain a safe workplace.

The trial court dismissed the case based upon the authority of Rounds v. Standex International, 131 N.H. 71, 550 A.2d 98 (1988), which was decided after the plaintiff commenced this litigation.

The malpractice plaintiff’s burden in proving liability is thus essentially the same as any negligence plaintiff’s burden to prove facts upon which the law imposes a duty of care, breach of that duty, and so-called proximate causation of harm.