25 Mass. App. Ct. 901 | Mass. App. Ct. | 1987
Although negligence questions involving issues of what is reasonably foreseeable are ordinarily left to the jury, there are instances when the judge may decide them as matter of law, where no rational view of the evidence would warrant a finding of negligence. Luz v. Stop & Shop, Inc., 348 Mass. 198, 203-204 (1964). Mullins v. Pine Manor College, 389 Mass. 47, 56 (1983). A landowner or proprietor is not an insurer of the safety of his patrons. “The test is ‘foreseeable harm.’ . . . The underlying duty in every case, however, is to exercise the care which the circumstances reasonably require.” Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 642 (1961). Based on the evidence presented, there could be no reasonable difference of opinion as to the improbability of the incident which occurred.
The facts of the instant case are clearly distinguishable from those cases in other jurisdictions where a proprietor has been held liable for injuries to patrons caused by out-of-control motor vehicles. The restaurant here was not providing outside window service, Barker v. Wah Low, 19 Cal.App.3d 710 (1971), nor an outdoor seating area, Ray v. Cock Robin, Inc., 57 Ill.2d 19 (1974); Marquardt v. Cernocky, 18 Ill.App.2d 135 (1958). The driver of the vehicle causing injury to the patrons was not on the property to avail himself of the services of the defendant; he was unintentionally on the premises. There was no evidence produced of prior runaway vehicles causing damage to the restaurant building. Mullins v. Pine Manor College, supra
Judgments affirmed.