Nelson Salazar Orellana & a. v. Skyview Estates, LLC & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2024-0725, Nelson Salazar Orellana & a. v. Skyview Estates, LLC & a., the court on April 10, 2026, issued the following order:

The court has reviewed the written arguments and the record submitted on appeal, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The plaintiff, Nelson Salazar Orellana, appeals orders of the Superior Court (Temple, J.) granting summary judgment to the defendants, Skyview Estates, LLC (Skyview), Elkridge Construction, LLC (Elkridge), Jonathan Snyder d/b/a Solid Structures (Snyder), and John Gargasz. The plaintiff argues that the trial court erred in granting summary judgment to the defendants based on the court's conclusion that the defendants did not owe the plaintiff a duty of care. We affirm.

The following facts are derived from the trial court's summary judgment orders or are otherwise established by the record. The plaintiff was injured at a large construction site where 64 single family homes were being built on a property owned by Skyview. Skyview's "primary purpose" was to develop the project, and it accordingly "was responsible for obtaining the required engineering plans, approvals, land acquisition and infrastructure development for the project." (Quotation omitted.) Gargasz is Skyview's managing member. Skyview hired Elkridge as the general contractor for the construction project. There was no written contract between Skyview and Elkridge. Gargasz is also the managing member of Elkridge. Elkridge hired Tom Ireland to manage the project. During construction, Gargasz would visit the construction site once a week, and he met with Ireland each week to discuss the status of the construction.

Elkridge, through Ireland, hired Snyder as a subcontractor to frame some of the homes in the development. After Snyder completed the framing for at least two homes in the development, he agreed to frame the house that was being built on Lot 54. Snyder was too busy to do the framing himself, however, so he asked another framer, Gary Stewart, to complete the framing on Lot 54. Stewart agreed, but he too was unable to perform the framing on Lot 54, so he asked the plaintiff's employer, JSH Construction (JSH), to do the work. JSH's

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owner, Jose Hernandez, agreed on the condition that Stewart allow JSH to use Stewart's telehandler¹to complete the framing, and Stewart agreed.² JSH began its work on Lot 54, where Hernandez was the plaintiff's on- site supervisor. The day of the plaintiff's injury, Hernandez was operating Stewart's telehandler to raise a pre-constructed wall into place. Hernandez directed the plaintiff to stand underneath the wall while it was raised by the telehandler and use a nail gun to secure the wall into place. The plaintiff objected because he was concerned about his safety, but Hernandez told him to proceed as instructed. While the plaintiff was standing underneath the wall as it was suspended in the air by the telehandler, the wall fell and landed on the plaintiff. The plaintiff was paralyzed as a result. The plaintiff brought negligence claims against the defendants. The defendants moved for summary judgment, each arguing that they owed no duty of care to the plaintiff. Following hearings on the motions, the trial court granted each defendant's motion. The trial court denied the plaintiff's motions for reconsideration and this appeal followed.

On appeal, the plaintiff asserts that the trial court erred in granting summary judgment to the defendants after ruling that the defendants owed him no duty of care. We address the plaintiff's arguments pertaining to each defendant in turn.

When reviewing a trial court's grant of summary judgment, we consider the affidavits and other evidence, and inferences properly drawn from them, in the light most favorable to the non-moving party. Sabinson v. Trustees of Dartmouth College, 160 N.H. 452, 455 (2010). If this review does not reveal any genuine issues of material fact, i.e., facts that would affect the outcome of the litigation, and if the moving party is entitled to judgment as a matter of law, we will affirm. Id. We review the trial court's application of the law to the facts de novo. Id.

To recover for negligence, a plaintiff must demonstrate that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach proximately caused injury to the plaintiff. Grady v. Jones Lang LaSalle Constr. Co., 171 N.H. 203, 207 (2018). Absent a duty, there is no negligence. Id. When charged with determining whether a duty exists in a particular case, we necessarily encounter the broader, more fundamental question of whether the plaintiff's interests are entitled to legal protection against the defendant's conduct. Id. When making this determination, we

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consider whether the societal importance of protecting the plaintiff's interests outweighs the importance of immunizing the defendant from extended liability. Id. Whether a duty exists in a particular case is a question of law. Id. All persons have a duty to exercise reasonable care to not subject others to an unreasonable risk of harm. Id. The existence of a duty does not arise solely from the relationship between the parties, but also from the need for protection against reasonably foreseeable harm. Id. Thus, in some cases, a party's actions give rise to a duty. Id. Parties owe a duty to those third parties foreseeably endangered by their conduct with respect to those risks whose likelihood and magnitude make the conduct unreasonably dangerous. Id. We first address the plaintiff's argument that the trial court erred in granting summary judgment to Elkridge, the general contractor. He contends that Elkridge owed him a duty "to maintain reasonable conditions of safety on its construction site." We disagree.

Generally speaking, general contractors have no duty to provide training, equipment, or oversight to a subcontractor's employees. See id. at 209. When, however, a general contractor through its own acts creates a non-obvious dangerous condition on the premises from which harm may foreseeably result, it has a duty to other workers, including a subcontractor's employees, "to maintain reasonable conditions of safety" on the premises. Id.; see Butler v. King, 99 N.H. 150, 152 (1954).

Here, the trial court found that Elkridge did not owe the plaintiff a duty of care to prevent his injury because there was no evidence that Elkridge created a non-obvious dangerous condition on the property that led to the plaintiff's injury. See Grady, 171 N.H. at 209. The plaintiff does not argue on appeal that Elkridge created a dangerous condition on the property. He avers, however, that the trial court should have also analyzed "whether or how Elkridge maintained safe conditions on the site or its knowledge of the unsafe conditions thereon." In support of this assertion, he points to Butler, where we stated that the general contractor defendants "had a duty to maintain reasonable conditions of safety" at the construction site. Butler, 99 N.H. at 150, 152. He suggests that Butler, and our subsequent discussion of its holding in Grady, demonstrate that the creation of a dangerous condition is not the only way that a general contractor may be liable for a subcontractor's employee's injury.

We explained in Grady, however, that "the [general contractor] defendants' duty in Butler arose from their creation of a dangerous condition on the premises" through their construction activities, "not from [their] supervisory role." Grady, 171 N.H. at 209-10. In contrast, as the trial court here determined, the plaintiff's injury was "caused by his own employer's

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negligent operation of the telehandler and/or the negligent loading of the wall onto the telehandler," not by a dangerous condition created by Elkridge. Indeed, this case is similar to Grady. As in Grady, the plaintiff here was not injured while using equipment furnished by the general contractor. See Grady, 171 N.H. at 208. As in Grady, the plaintiff here was not supervised by the general contractor on the day of his injury, nor did he recall seeing or speaking with anyone associated with the general contractor on the day of his injury. See id. As in Grady, the plaintiff here was not instructed by the general contractor on how to perform his work on the day of his injury. See id. Rather, as in Grady, the plaintiff's employer, not Elkridge, was responsible for providing equipment and ensuring the safety of the employees. See id. Under these circumstances, we conclude, as we did in Grady, that the trial court did not err when it determined that the plaintiff's employer, not the general contractor defendant, was responsible for ensuring the plaintiff's safety. See RSA 281-A:64, I (2023) (requiring employers to provide their employees with

"safe employment," including "adopting work methods and procedures which will protect the life, health, and safety of the employees"); Grady, 171 N.H. at 208 ("Pursuant to RSA 281-A:64 . . . the plaintiff's employer . . . not [the general contractor], was responsible for providing the plaintiff with his equipment and ensuring his safety.").

The plaintiff nonetheless argues that Grady, rather than limiting the scope of the duty described in Butler, actually confirms the existence of a general contractor's duty of care to a subcontractor's employees. He suggests that "[i]t was the details of Grady that informed its result," pointing to the fact that in Grady, the plaintiff's employer agreed by contract to "assume full responsibility for implementing and ensuring compliance with its safety and health programs on the project" and to "maintain all work areas in a safe manner and furnish all safety equipment." Grady, 171 N.H. at 207-08. Here, in contrast, there was only an informal verbal agreement between Elkridge and Snyder for the work on Lot 54 at the time of the plaintiff's injury. Contrary to the plaintiff's interpretation, however, Grady's holding did not turn on the contractual duties assumed by the subcontractor for whom the plaintiff worked. See id. at 208-10. In that case, we cited RSA 281-A:64 in concluding that, under the circumstances of that case, the plaintiff's employer was responsible for "providing the plaintiff with his equipment and ensuring his safety." Id. at 208 (emphasis added); see RSA 281-A:64, I. Furthermore, we noted that the plaintiff's employer "was the party in the position to know about the particular dangers involved in its specialty work and to provide appropriate equipment and supervision to safely perform that work." Grady,

171 N.H. at 208 n.2 (emphasis added). Accordingly, we did not rely solely on the existence of the contract in rejecting the plaintiff's broader argument that the defendants "were negligent in their supervision of the jobsite in general."

Id. (quotation omitted).

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Finally, the plaintiff suggests that Elkridge's admission that it

"perform[ed] general site oversight" demonstrates that Elkridge owed a duty of care to prevent the plaintiff's injury. (Quotation omitted.) As we clarified in Grady, however, a general contractor's supervisory role does not create a duty of care to a subcontractor's employees. See id. at 210. The plaintiff also argues that Elkridge had prior knowledge of safety concerns — unrelated to the operation of a telehandler — during the Skyview construction project, which he maintains demonstrates Elkridge's "failure to take reasonable steps to prevent foreseeable harm." He cites no authority, however, that suggests that Elkridge owed a duty of care to the plaintiff once it became aware of prior safety concerns that were unrelated to the plaintiff's injury, particularly when Elkridge had no duty to perform oversight of a subcontractor's employees. We thus find this argument unavailing and decline to address it in further detail. See Bloom v. Casella Constr., 172 N.H. 625, 629 (2019) (declining to address plaintiff's arguments in detail "given the plaintiff's failure to provide any legal authority to support her position"). Accordingly, we conclude that Elkridge owed no duty to the plaintiff under the circumstances and therefore affirm the trial court's order granting summary judgment to Elkridge. Next, we consider the plaintiff's argument that the trial court erred in granting summary judgment to Snyder, the framing subcontractor who was initially hired by Elkridge to frame the house on Lot 54. The trial court ruled that whether a subcontractor owes a duty of care to a sub-subcontractor's employee is governed by the same analysis as the relationship between a general contractor and subcontractor, and the plaintiff does not challenge this ruling. For the reasons explained above, we conclude that Snyder — who sub- subcontracted the framing on Lot 54 to Stewart, who in turn hired the plaintiff's employer to complete the job — owed no duty to provide training, equipment, or oversight to JSH or the plaintiff. See Grady, 171 N.H. at 209. Moreover, viewed in the factual light most favorable to the plaintiff, the record does not suggest that Snyder had "control over the methods or as to operative detail of [JSH's] work" or "over the actual activity or condition that caused [the plaintiff's] injury." Arana v. Figueroa, 559 S.W.3d 623, 629 (Tex. App. 2018); see also Wise v. Kentucky Fried Chicken Corp., 555 F. Supp. 991, 995-96 (D.N.H. 1983) (noting that the New Hampshire Supreme Court "has long treated 'control' as a decisive factor in cases involving 'employees of an otherwise independent contractor'" and denying summary judgment where "the instrumentality alleged to have caused the [plaintiff's] injury . . . [was] purchased with the approval, if not at the direction, of [the] defendant" (citation omitted)). Because we conclude, as a matter of law, that Snyder did not owe a duty of care to the plaintiff, we need not address the plaintiff's remaining arguments that the trial court erred in reaching this same conclusion. We therefore affirm the trial court's order granting summary judgment to Snyder. We next address the plaintiff's arguments as to Skyview, the landowner. The plaintiff argues that the trial court erred in concluding that Skyview owed

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no duty to prevent the plaintiff's injury under the circumstances. He argues that Skyview owed him a duty to maintain its property in a reasonably safe condition, and that Skyview "injected itself into the construction . . . to keep tabs on its profit but abdicated its duty to consider safety" in the process. We disagree.

Under New Hampshire law, premises owners are governed by the test of reasonable care under all the circumstances in the maintenance and operation of their premises. Rallis v. Demoulas Super Markets, 159 N.H. 95, 99 (2009). For a landowner to owe a duty of care to a party entering his property, it must be reasonably foreseeable that injury may occur as a result of the landowner's conduct. White v. Asplundh Tree Expert Co., 151 N.H. 544, 547 (2004). Specifically, a landowner is subject to liability for harm caused to entrants on the premises if the harm results either from: (1) the owner's failure to carry out his activities with reasonable care; or (2) the owner's failure to remedy or give warning of a dangerous condition of which he knows or in the exercise of reasonable care should know. Rallis, 159 N.H. at 99. Whether a landowner's challenged conduct created such a foreseeable risk of harm is a question of law. White, 151 N.H. at 547.

We first consider the plaintiff's argument that the trial court erred in ruling that Skyview did not owe a duty to prevent the plaintiff's injury. As an employer of an independent contractor, a landowner is generally "not liable for injuries caused by the negligence of [the] independent contractor," Elliott v. Public Serv. Co. of N.H., 128 N.H. 676, 678 (1986), because a landowner ordinarily "reserves no control or power of discretion over the execution of the [contractor's] work," Arthur v. Holy Rosary Credit Union, 139 N.H. 463, 465

(1995).

Here, the record shows that Skyview's primary purpose was the development of the 64-lot residential subdivision where the plaintiff's injury occurred. Skyview obtained the necessary approvals and arranged for the infrastructure development to prepare the lots for sale. Skyview was not responsible for the construction of homes on these lots, as it retained Elkridge to serve as the general contractor and manage the construction aspects of the project. Skyview did not dictate the means or methods of construction during the project, including the framing work that led to the plaintiff's injury. Skyview was not involved in the acquisition or use of the telehandler that led to the plaintiff's injury. Skyview was not present at Lot 54 when the plaintiff suffered his injury. The plaintiff does not argue that Skyview had "control or power of discretion over the execution" of his or his employer's work. Arthur,

139 N.H. at 465. Based on the evidence before it, the trial court did not err in concluding that the plaintiff's injury was neither caused by — nor a reasonably foreseeable result of — Skyview's conduct. See White, 151 N.H. at 547. As the trial court

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determined, the plaintiff's injury "was not caused by a defect on the property,"

but instead "was caused by Hernandez's unwise decision to direct [the plaintiff] to stand under the telehandler." The trial court explained that this "decision was made in the course of completing the very work that they were hired to perform on Skyview's property," and that "Skyview had no role in, control over, or reason to anticipate that decision." See Arthur, 139 N.H. at 465. These conclusions are compelled by the record. Conversely, the record does not support a finding that Skyview either: (1) failed to carry out its activities with reasonable care under the circumstances; or (2) failed to remedy or warn the plaintiff about a dangerous condition on the premises. See Rallis, 159 N.H. at

99. Therefore, the trial court correctly concluded that Skyview owed the plaintiff "no duty to protect him from the injuries he sustained." Richmond v. White Mt. Recreation Assoc., 140 N.H. 755, 760 (1996). The plaintiff contends that the trial court failed to view the facts in the light most favorable to the plaintiff, and that "it should have ruled that whether Skyview breached the duty to maintain its premises in a reasonably safe condition was a determination for the jury." Because the trial court correctly concluded that Skyview owed no duty to prevent the plaintiff's injury, however, there was no issue for a jury to decide. See Grady, 171 N.H. at 207; cf. Arthur,

139 N.H. at 464, 466 (affirming directed verdict for property owner defendant where danger during construction that led to employee plaintiff's injury

"derived not from the nature of the work, but from the negligence of the [plaintiff's employer]," and therefore issue need not reach jury). The plaintiff further argues that the summary judgment record, viewed in the light most favorable to the plaintiff, shows that Skyview "undertook construction on its land for a profit," monitored the construction "to maximize its profit," and did so at the expense of safety. To the extent that this argument suggests the existence of a duty, we disagree. Further, we are unpersuaded by the plaintiff's argument that Skyview's financial interest in the project and its monitoring of the construction progress gave rise to a duty to prevent the plaintiff's injury, and the plaintiff cites no authority for this proposition. See Bloom, 172 N.H. at

629. Moreover, while the plaintiff points to Skyview's lack of policies or procedures regarding construction safety, this argument is not germane to the issue before us, as the record establishes that Skyview had no role in the actual construction itself.

The plaintiff further argues that the trial court, in considering whether Skyview owed a duty to the plaintiff, should have imputed Ireland's knowledge, acts, and omissions to Skyview via an agency theory. Even if we agree that Ireland was acting as an agent of Skyview, however, as noted above, the trial court correctly concluded that Elkridge, through Ireland, owed no duty to prevent the plaintiff's injury under the circumstances. Therefore, imputing Ireland's conduct to Skyview would have no bearing on whether Skyview owed a duty to the plaintiff. Cf. Arthur, 139 N.H. at 467-68 (reversing directed verdict for defendant because, were jury to find that project manager was agent

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of property owner, property owner would be liable if project manager "was responsible for the reasonable supervision and safety of the worksite and, in negligently carrying out this duty, caused the [plaintiff's] injury"). Accordingly, we affirm the trial court's order granting summary judgment to Skyview. Lastly, we turn to the plaintiff's argument that the trial court erred when it ruled that Gargasz, in his individual capacity, did not owe the plaintiff a duty of care. The plaintiff argues that Gargasz "was the only person acting on behalf of Skyview" and concludes that "[i]f [this court] finds that Skyview is liable to [the plaintiff], [this court] should find that Gargasz is too." Because we conclude Skyview was not liable to the plaintiff, we do not address this argument.

Affirmed.

DONOVAN and COUNTWAY, JJ., concurred; NADEAU, J., retired

superior court chief justice, specially assigned under RSA 490:3, II, concurred.

Timothy A. Gudas, Clerk