UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Great Northern Ins. Co.
v. Case No. 19-cv-160-AJ
Opinion No. 2019 DNH 157
Iron Mountain Water Servs.
Co., Inc.
O R D E R
Plaintiff Great Northern Insurance Company, as subrogee for
its insureds, Michael and Tracy Roberge, filed this lawsuit
against Iron Mountain Water Services Company. Great Northern
alleges that Iron Mountain negligently operated the water system
that provided water service to Great Northern’s insureds’
property, resulting in damage to the insureds’ property.
The parties have consented to the jurisdiction of the
undersigned magistrate judge. Doc. No. 12. Iron Mountain filed
a motion to dismiss (Doc. No. 14) the complaint, which contains
a sole claim of negligence. Great Northern opposes dismissal.
For the reasons that follow, the court construes the motion to
dismiss as a motion for judgment on the pleadings and denies it.
Standard of Review
A. Motion for Judgment on the Pleadings
Because Iron Mountain filed its answer before filing the
motion to dismiss, the motion to dismiss is construed as a motion for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c). See e.g., Weeks v. Five Bros. Mortg. Servs. &
Securing, Inc., 2014 WL 1379335, at *3 (D.N.H. April 9, 2014).
When a motion for a judgment on the pleadings is used to
attack the plausibility of a complaint, the motion is evaluated
under the same standard as a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6). Diaz-Nieves v. United States,
858 F.3d 678, 689 (1st Cir. 2017); Grajales v. P.R. Ports Auth.,
682 F.3d 40, 44 (1st Cir. 2012). Judgment on the pleadings,
therefore, is appropriate if the facts from the pleadings, taken
in the light most favorable to the nonmovant, fail to allege a
plausible entitlement to relief. Perez-Acevedo v. RiveroCubano, 520 F.3d 26, 29 (1st Cir. 2008) (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555-58 (2007)). As usual, the court
disregards conclusory allegations. Manning v. Boston Med. Ctr.
Corp., 725 F.3d 34, 43 (1st Cir. 2013). At bottom, the
complaint must allege “factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556).
B. Evidence Attached to Motion to Dismiss
Because Iron Mountain attached evidence to its motion to
dismiss, Great Northern suggests that the court would have to
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convert the motion into one for summary judgment before ruling
on it. See Fed. R. Civ. P. 12(d). 1 Iron Mountain contends that
this evidence shows that it operated the water system for the
insureds’ property pursuant to contracts with a homeowners’
association for the insureds’ neighborhood. As explained below,
however, the contracts are irrelevant to the negligence claim
before the court. Accordingly, the court need not and does not
consider them for purposes of resolving the motion. Therefore,
it is not necessary to convert the motion to a summary judgment
motion. See id. (requiring conversion to summary judgment only
if the material is not excluded by the court).
Background
According to Great Northern’s complaint, Iron Mountain
“operated the water system providing domestic water service” to
a real estate property owned by Great Northern’s insureds. Doc.
1 ¶¶ 6, 9. On July 16, 2017, “there was a spike in the water
pressure” at the insureds’ property, which “caused water to
discharge” through the insureds’ property. Id. ¶¶ 10-11. As a
result of the damage caused by the water discharge, the insureds
made a claim to Great Northern, which paid $398,453.99 to the
1 To be sure, Great Northern urges the court to deny the motion as procedurally improper rather than converting it to a summary judgment motion.
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insureds. Id. ¶¶ 12-14. Great Northern filed this lawsuit
against Iron Mountain to recover that amount, accusing it of
negligently operating the water system that it says provided
service to its insureds’ property and caused the damage to it.
Discussion
Iron Mountain argues that it had no “relationship” with the
insureds from which a duty to act with reasonable care could
arise. As noted above, Iron Mountain attached contracts to its
motion that, it asserts, establishes that it provided services
to a homeowners’ association for the insureds’ neighborhood.
Iron Mountain argues that the insureds cannot rely on the
contracts to create a duty of care or relationship between it
and the insureds because the insureds were not parties to the
contracts.
In response, Great Northern argues that Iron Mountain’s
motion is procedurally improper, a subject which the court has
addressed above in discussing the appropriate standard of
review. Great Northern further contends that the motion fails
on its merits because Iron Mountain had a general common law
duty to act with reasonable care, and it asserts that the
contract is irrelevant to the negligence claim.
To show negligence, the plaintiff must show that the
defendant owed it a duty, that the duty was breached, that the
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plaintiff suffered an injury, and that the defendant’s breach
was the proximate cause of the injury. Laramie v. Sears,
Roebuck & Co., 142 N.H. 653, 655 (1998). A defendant is charged
with a duty of care to the extent his conduct creates a
sufficiently foreseeable risk of harm to others. See, e.g.,
Macie v. Helms, 156 N.H. 222, 224 (2007) (“The scope of the duty
of care imposed upon the defendants . . . is limited by what
risks, if any, are reasonably foreseeable.”); Manchenton v. Auto
Leasing Corp., 135 N.H. 298, 305-06 (1992) (holding that the
defendant “owed no common law duty to members of the general
public to remove his keys from his vehicle” because the risk of
harm to the general public created by failing to remove the keys
was not reasonably foreseeable). In other words, if a defendant
acts, and if that act creates a reasonably foreseeable harm to
another, he is charged with a duty to take reasonable care with
respect to that act. See Macie, 156 N.H. at 224.
Iron Mountain contends that a “relationship” between the
harmed party and the defendant is required to impose a duty of
care. A special relationship between a harmed party and
defendant may be used to impose a duty of care, if that
relationship shows the harm that occurred was reasonably
foreseeable to the defendant. See, e.g., Simpson v. Calivas,
139 N.H. 1, 5-6 (1994) (holding that an attorney’s duty of
reasonable care in drafting a contract extended to the intended
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beneficiary of that contract because that relationship created
an “obvious foreseeability of injury to the beneficiary”);
Jacobson v. Yoken’s, Inc., 104 N.H. 331, 333 (1962) (“The extent
of the defendant’s duty depended on the nature of the
relationship existing between the parties at the time of the
accident.”). That is to say, while the existence of a
particular type of relationship between the harmed party and the
defendant is a fact that can show that certain harms were
reasonably foreseeable to the defendant, it is not itself an
element of the duty of care. See Walls v. Oxford Mgmt. Co., 137
N.H. 653, 656 (1993) (“In some cases, a party’s actions give
rise to a duty. . . . In other cases, a duty to act exists
based on a special relationship between two parties. . . . In
either case, the scope of the duty imposed is limited by what
risks, if any, are reasonably foreseeable.”).
Here, Great Northern alleged that Iron Mountain provided
water service to the insureds’ property. Great Northern also
alleged that a problem with the water pressure caused water to
flood the insureds’ property. Nothing more than common sense is
necessary to conclude that harm to a property is reasonably
foreseeable to a business that provides water service to that
property. Whether Iron Mountain provided its water service
pursuant to a contract with a third party is irrelevant to
whether it owed Great Northern’s insureds a duty of care in
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providing water service to their property. Accordingly, Iron
Mountain’s argument that no duty of care exists under the
circumstances alleged by Great Northern lacks merit.
Conclusion
For the foregoing reasons, Iron Mountain’s motion for
judgment on the pleadings (Doc. No. 14) is denied.
SO ORDERED.
Andrea K. Johnstone
United States Magistrate Judge
September 19, 2019
cc: Christopher H. Boyle, Esq.
John P. Sherman, Esq.
Naomi L. Getman, Esq.
Heather S. Ward, Esq.
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