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Christen v. Fiesta Shows, Inc.

Supreme Court of New Hampshire

October 4, 2017

ELAINE CHRISTEN & a.
v.
FIESTA SHOWS, INC. & a.

          Argued: May 11, 2017

         Hillsborough-northern judicial district

          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.

          DALIANIS, C.J.

         Plaintiff 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.

         The 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 a bathroom.

         Although 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.

         Approximately 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.)

         The 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.[1] 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.

         On 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 events."

         In 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.

         To 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.

         "Ordinarily 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 ...


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