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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Merrimack
No. 99-592
WILLIAM MORSE,
ADMINISTRATOR OF THE ESTATE OF SAMUEL T. MORSE
v.
RICHARD A. GODUTI
August 10, 2001
Douglas, Robinson, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III, and V. Richards Ward, Jr. on the brief, and Mr. Douglas orally), for the plaintiff.
Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (E. Tupper Kinder and Charles J. Keefe on the brief, and Mr. Kinder orally), for the defendant.
BARRY, J., superior court justice, specially assigned under RSA 490:3. The plaintiff, William Morse, administrator of the Estate of Samuel T. Morse, appeals the Superior Court's (T. Nadeau, J.) grant of the motion of the defendant, Richard A. Goduti, for summary judgment. The court ruled as a matter of law that the defendant's erection of an artificial pond with deep slopes did not create an unreasonable risk of harm to the plaintiff's decedent, Samuel T. Morse, who drowned in the pond. We reverse and remand.
William and Linda Morse own property on Route 13 in Dunbarton. The defendant owns a contiguous parcel of land. Samuel Morse was a ten-year-old, developmentally disabled child who received special needs education.
The defendant's property included an in-ground swimming pool with a depth of six feet, completely enclosed by a fence. The Morse family was welcome to use the pool. Samuel was a frequent visitor to the defendant's property, coming over either to use the pool or simply say hello.
The defendant began construction of a pond in April 1990 for the purpose of preventing flooding and, according to his deposition testimony, "for fun and fish." He told Mr. Morse that the pond would have a drainage system so that it would never become very deep. Mr. Morse believed the pond would never exceed a depth of two or three feet.
April 6, 1996, was a spring day with a temperature in the forties. Upon his return from school, Samuel went outside to play with his dog and was subsequently missed by his parents. Later that day, Samuel's body was recovered from approximately six feet of water in the man-made pond after Mr. Morse discovered footprints in the snow around the pond.
The trial court was obligated to grant summary judgment if, after considering all the evidence presented in the light most favorable to the non-moving party, no genuine issue of material fact existed and the moving party was entitled to judgment as a matter of law. See Manchenton v. Auto Leasing Corp., 135 N.H. 298, 300-01 (1992). In reviewing the superior's court's grant of summary judgment, "we look at the affidavits and other evidence, and all inferences properly drawn therefrom, in the light most favorable to the non-moving party." Del Norte, Inc. v. Provencher, 142 N.H. 535, 537 (1997). "If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment." Id. (quotations and brackets omitted). We review the trial court's application of the law to the facts de novo. Id.
To recover for negligence, the plaintiff must show that the defendant owed a duty to Samuel, the breach of which caused the injury for which the plaintiff now seeks to recover. See Manchenton, 135 N.H. at 304. The presence of a duty requires conformance to the standard of care appropriate under the circumstances. See 57A Am. Jur. 2d Negligence