Property owners, snow removal contractors, and commercial salt applicators in New Hampshire should take note of a recent Hillsborough County Superior Court decision granting summary judgment under the state's winter maintenance immunity statute. Likely the first summary judgment granted under RSA 508:22 in New Hampshire, the statute had previously only been tested at trial.
The Statute: RSA 508:22
The statute provides liability protection to certified salt applicators performing snow and ice removal in accordance with state-adopted Best Management Practices ("BMPs"). It also shields certified commercial applicators from civil liability for damages caused by snow and ice where the applicator was certified and acting in compliance with BMPs. The statute imposes detailed requirements, including recordkeeping and educational obligations.
Courts applying the statute focus on four elements:
- Certification
- Implementation of BMPs
- Proper recordkeeping
- Absence of gross negligence or reckless disregard
The Dispute
In this case, the plaintiff alleged that she sustained injuries when she slipped and fell on untreated ice outside a Cumberland Farms convenience store in Manchester, New Hampshire. She argued that the subcontractor hired to perform snow and ice management services failed to comply with the BMPs and challenged the adequacy the defendant’s recordkeeping.
The Motion for Summary Judgment
Mellick & Porter attorney, Rick Heifetz, moved for summary judgment on behalf of our client, arguing that it qualified for statutory immunity as a certified commercial salt applicator that had adopted and implemented the BMPs, and that its recordkeeping practices satisfied the statute's requirements.
On the question of BMP compliance, the Court found the defendant established its adoption of the BMPs through evidence that its employee, who was a master certified applicator and approved NHDES trainer who had administered BMP training to the employees responsible for treating the property. Under RSA 508:22, I, a certified applicator who adopts the BMPs is presumed to have acted in compliance with them.
The burden shifted to the plaintiff to offer proof of noncompliance with a specific BMP.
The Court found that the plaintiff failed to identify any specific violated BMP. Rather than pointing to a particular practice that was not followed, the plaintiff disputed whether the defendant actually performed the ice treatment reflected in its logs, and generally contended that the fact of the fall, combined with inadequate records, was sufficient proof of noncompliance. The Court rejected this approach, holding that a general assertion that the plaintiff fell on ice and the defendant's records are inadequate cannot rebut the statutory presumption of compliance.
On the record keeping question, the Court examined whether our client’s records satisfied the statute, which requires a written record of the type and quantity of de-icing materials used, the dates of treatment, and the weather conditions for each de-icing event. The plaintiff argued that these requirements applied on a per-event basis, meaning the defendant needed to document all four categories for each individual de-icing event. The Court disagreed, concluding that only the "weather conditions" requirement is modified by the phrase "for each event requiring deicing." The Court held that the combination of our client’s annual NHDES reporting, daily service logs, and weather reports collectively satisfied the statute's record keeping mandate, and that nothing in the statute requires all of this information to appear in a single unified document.
Key Takeaway
This decision establishes that once a certified applicator demonstrates adoption of the BMPs under RSA 508:22, the presumption of compliance is powerful and specific. To overcome it, a plaintiff must identify a particular BMP that was violated and offer admissible evidence of noncompliance. General allegations of injury and poor defendant records do not suffice. The decision also clarifies that the statute's recordkeeping requirements can be satisfied through a combination of records, and that the per-event documentation requirement applies only to weather conditions.
For property owners and snow removal contractors operating in New Hampshire, this ruling reinforces the importance of maintaining proper certifications, training employees on the BMPs, and keeping thorough records, including weather reports for each de-icing event. Contractors who do so may be well-positioned to invoke RSA 508:22's immunity protections at the summary judgment stage, potentially avoiding trial altogether.
To learn more about how this decision may affect your business, reach out to our team.
