ELAINE CHRISTEN & a.
FIESTA SHOWS, INC. & a.
Argued: May 11, 2017
Abramson, Brown & Dugan, of Manchester (Jared R. Green on
the brief and orally), for the plaintiff.
Desmarais Law Group, PLLC, of Manchester (Debra L. Mayotte on
the brief and orally), for the defendant.
Elaine Christen, individually and as administrator of the
estate of Sophia Christen, appeals the order of the Superior
Court (Smukler, J.) granting summary judgment to
defendant Fiesta Shows, Inc. (Fiesta), on the ground that
Fiesta did not owe Sophia Christen a duty of care. We affirm.
trial court recited the following facts, set forth in the
light most favorable to the plaintiff. On May 3, 2013,
15-year-old Sophia attended a carnival operated by Fiesta in
a fenced-in area of the Ocean State Job Lot (Ocean State)
parking lot located on the western side of Manchester Road in
Derry. After Sophia and her friends shared cotton candy, they
began searching for a bathroom to wash their sticky hands.
The carnival had bottled water, napkins, and
"port-a-potties" equipped with hand sanitizer
dispensers, but it lacked public facilities with running
water. The girls decided to leave the carnival and search for
there were two nearby restaurants located on the same side of
Manchester Road as the carnival, the girls decided to cross
Manchester Road to go to a Burger King. At the intersection
of the Ocean State access road and Manchester Road, the girls
found that the pedestrian crossing signal was inoperative,
but they decided to cross the road without the walk signal.
While crossing the road, Sophia was struck by a vehicle and
suffered fatal injuries.
one week before the carnival, Fiesta had contacted the Derry
Police Department to arrange for the presence of officers to
provide "general public safety" at the carnival.
Unlike organizers of other large events in Derry, Fiesta did
not instruct the officers to engage in traffic control,
pedestrian assistance, or other similar duties. One day after
the accident, at the suggestion of the Derry Police
Department, Fiesta arranged for additional police coverage to
direct traffic and assist with pedestrian crossing on
Manchester Road. Two days after the accident, two Fiesta
employees reported to a Derry police officer investigating
the signal that "they crossed the crosswalk regularly
and had never seen the pedestrian crossing signal
activate." (Quotation omitted.)
plaintiff brought a wrongful death action against Fiesta,
claiming negligence and also alleging that Fiesta's
conduct was wanton and reckless, entitling her to enhanced
compensatory damages. Fiesta successfully moved for summary
judgment, asserting that it violated no duty of care owed to
Sophia. The plaintiff unsuccessfully sought reconsideration,
and this appeal followed.
appeal, the plaintiff argues that Fiesta "owed a common
law duty of care to Sophia" because it was
"foreseeable to Fiesta that customers with sticky
fingers, including unsupervised teenagers, would seek running
water, soap, and towels or a mounted blow dryer to
effectively wash the stickiness off their fingers" and
that Fiesta "should have expected that these customers .
. . would leave the amusement area . . . to go to a fast food
restaurant directly across from the entrance to the carnival
site" to wash their hands. (Capitalization and bolding
omitted.) The plaintiff also argues that, even if Fiesta was
not subject to a common law duty of care, Fiesta voluntarily
assumed such a duty by: (1) requiring in the company
"Safety Manual" that its employees report all
observed unsafe conditions; (2) hiring local police officers
to provide "general public safety"; and (3)
choosing to hold a carnival in Derry, "a town that
expressly mandated a Public Gathering License for such
reviewing a trial court's ruling on a motion for summary
judgment, we consider the evidence in the light most
favorable to the nonmoving party and, if no genuine issue of
material fact exists, we determine whether the moving party
is entitled to judgment as a matter of law. Gray v.
Leisure Life Indus., 165 N.H. 324, 327 (2013). "We
affirm a trial court's decision if our review of the
evidence discloses no genuine issue of material fact and the
moving party is entitled to judgment as a matter of
law." Estate of Joshua T. v. State, 150 N.H.
405, 407 (2003). We review the trial court's application
of the law to the facts de novo. Id.
recover for negligence, a plaintiff must show that the
defendant owes a duty to the plaintiff and that the
defendant's breach of that duty caused the
plaintiff's injuries. Manchenton v. Auto Leasing
Corp., 135 N.H. 298, 304 (1992). Absent a duty, there is
no negligence. Walls v. Oxford Management Co., 137
N.H. 653, 656 (1993). Whether a duty exists in a particular
case is a question of law. Id.
there is no duty to control the conduct of a third person to
prevent the third person from causing harm to another
person." 1 J.D. Lee & Barry A. Lindahl, Modern
Tort Law: Liability & Litigation, § 3:12, at
3-31 to 3-32 (2d ed. 2003). "This rule is grounded in
the fundamental unfairness of holding private citizens
responsible for the unanticipated criminal acts of third
parties." Walls, 137 N.H. at 657. "In
certain limited circumstances, however, we have recognized
that there are exceptions to the general rule where a duty to
exercise reasonable care will arise." Remsburg v.
Docusearch, 149 N.H. 148, 154 (2003). "We have held
that such a duty ...