Elaine Christen & a. v. Fiesta Shows, Inc. & a.
170 N.H. 372
| N.H. | 2017Background
- On May 3, 2013, 15‑year‑old Sophia Christen attended a Fiesta‑operated carnival located on one side of Manchester Road in Derry; the carnival had no running water facilities on site.
- Sophia and friends crossed Manchester Road (the pedestrian signal was inoperative) to reach a Burger King and Sophia was struck and killed by a vehicle while crossing.
- Fiesta had arranged for Derry police officers for “general public safety” before the event but did not direct officers to perform traffic or pedestrian control; additional traffic/pedestrian control was arranged only after the accident.
- Plaintiff sued Fiesta for negligence and wanton/reckless conduct (wrongful death), claiming Fiesta owed or voluntarily assumed a duty to protect patrons from hazards when crossing the adjacent public road.
- Fiesta moved for summary judgment on the ground it owed no duty of care to Sophia; the superior court granted judgment for Fiesta and the plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fiesta owed a common‑law duty to protect patrons from third‑party traffic on an adjacent public road | Fiesta should have foreseen patrons (unsupervised teens) leaving to seek running water across the street and thus owed a duty | Fiesta had no control over the public road or the vehicle that struck Sophia, so no duty arose | No duty; affirmed — no duty where injury occurred on public way not under defendant's control |
| Whether Kellner controls (duty when owner’s property borders both sides of a public road) | Kellner shows duty can arise from operating facilities on both sides of a road and creating hazardous conditions | Chouinard is still controlling where defendant’s property is only on one side of the road | Kellner is distinguishable (property on both sides + special innkeeper‑guest relationship); Chouinard analogous here |
| Whether Fiesta voluntarily assumed a duty by employee Safety Manual requiring reporting unsafe conditions | Manual’s reporting requirement shows Fiesta assumed broader safety duties beyond carnival grounds | Manual applies to workplace/carnival premises only; does not extend to public road | No voluntary assumption — manual limited to workplace/carnival premises |
| Whether hiring police for “general public safety” or obtaining/omitting a public‑gathering license created assumed duties | Hiring police and participating in licensing shows Fiesta assumed responsibility for pedestrian/traffic safety | Police assignments, duties, and traffic control were set by the town; Fiesta did not control officers or the roadway | No voluntary assumption — Fiesta did not direct traffic or exercise control over the road; no nexus shown between license and duty |
Key Cases Cited
- Kellner v. Lowney, 145 N.H. 195 (N.H. 2000) (duty arose where motel operated on both sides of a highway creating a hazardous condition for guests)
- Chouinard v. New Hampshire Speedway, 829 F. Supp. 495 (D.N.H. 1993) (landowner owed no duty where injury occurred on adjacent public way not under owner’s control)
- Carignan v. N.H. Int’l Speedway, 151 N.H. 409 (N.H. 2004) (undertaking to direct traffic offsite can give rise to a duty to exercise reasonable care)
- Remsburg v. Docusearch, 149 N.H. 148 (N.H. 2003) (exceptions to the general rule of no duty to control third parties include special relationship, special circumstances, or voluntary assumption)
- Walls v. Oxford Management Co., 137 N.H. 653 (N.H. 1993) (duty is a threshold element of negligence; no duty, no negligence)
- Manchenton v. Auto Leasing Corp., 135 N.H. 298 (N.H. 1992) (elements of negligence require duty and breach)