THE STATE OF NEW HAMPSHIRE SUPREME COURT Term. March Session. No

Transcription

1 THE STATE OF NEW HAMPSHIRE SUPREME COURT 2017 Term March Session No Elaine Christen, Individually and as Administrator of the Estate of Sophia Christen v. Fiesta Shows, Inc and State of New Hampshire Appeal from Summary Judgment and Denial of Motion for Reconsideration Hillsborough County Superior Court Northern District REPLY BRIEF OF THE PLAINTIFF Jared R. Green, Esquire (NHBA No ) ABRAMSON, BROWN & DUGAN 1819 Elm Street Manchester, NH (603)

2 TABLE OF CONTENTS Table of Authorities PAGE ii Argument A. Response to Defendant s Statement of Facts Other Businesses With Bathroom Facilities Control Of Police Details Town Of Derry Knew The Carnival Was Taking Place Post-Accident Police Detail The Girls Decision To Go To Burger King Fiesta Safety Manual Fiesta Employees Were Aware Of The Nonfunctioning Pedestrian Signal Public Gathering License B. Enhanced Damages C. Foreseeability Plaintiff s Argument on Foreseeability Defendant s Argument on Foreseeability Response to Defendant s Argument Chouinard v. N.H. Speedway Kellner v. Lowney Conclusion Regarding Foreseeability i

3 PAGE D. Voluntarily Assumed Duties Safety Manual Police Details Public Gathering License E. Conclusion CERTIFICATION PURSUANT TO SUPREME COURT RULE 16(10) TABLE OF AUTHORITIES I. CASES: PAGE Chouinard v. N.H. Speedway, 829 F.Supp. 495 (D.N.H. 1993) , 10 Kellner v. Lowney, 145 N.H. 195 (2000) , 9, 10 Maryea v. Velardi, 168 N.H. 633 (2016) Powell v. Catholic Med. Ctr., 145 N.H. 7 (2000) Remsburg v. Docusearch, Inc., 149 N.H. 148 (2003) ii

4 ARGUMENT A. Response to Defendant s Statement of Facts 1. Other Businesses With Bathroom Facilities The defendant points out that other businesses on the same side of the street as the carnival had bathrooms. Defendant s Brief at 1-2. The trial court found this significant as well. Plaintiff s Brief at 43. It is not significant. The Ocean State Job Lot store may have had a public bathroom but it is undisputed that the store was closed when the girls were looking for a place to wash their hands. App. at 231. As for the Chinese restaurant and the roast beef restaurant, it is important to note that the front of those businesses faced away from the carnival and there is no evidence that any of the girls was aware on May 3, 2013 that they even existed. App. at Similarly, only one of the girls, Jenna Maddox, testified that she knew on May 3, 2013 that there was a Subway restaurant located down Manchester Road. App. at 374. There is no evidence that Jenna mentioned Subway as an available option when the girls were contemplating where to go to wash their hands. Although the defendant suggests in its brief that Isabella D Alessandro also knew of the Subway, she was not asked whether she was aware of it on May 3, 2013, as opposed to learning of it at some point in the two and a half years between the accident and her deposition. App. at In any event, contrary to Jenna s answer to a leading question from defense counsel, the Subway is not closer to the carnival than the Burger King. App. at 390; 394. Moreover, there is no evidence that Fiesta management was aware that any of the restaurants existed, much less that they relied on them to provide handwashing facilities to carnival patrons. App. at 344. And, 1

5 even if they were aware and the carnival was relying upon the restaurants to provide restroom facilities for its customers, it should have made sure the patrons knew those restaurants were there. Since the dispositive question is whether it was reasonably foreseeable to Fiesta that teenage customers might cross Manchester Road to wash their hands after eating cotton candy, the absence of any evidence that Fiesta knew the other restaurants existed renders those restaurants completely meaningless. 2. Control Of Police Details The defendant claims that John Flynn left it up to the police department to determine what they needed... Defendant s Brief at 2. However, Lt. Kester, the Derry officer who met with Flynn regarding the police details for the Derry carnival, remembers it differently. He recalls that Flynn told him the dates that the carnival would be in operation, the number of police officers he (Flynn) wanted to hire, and the hours during which he (Flynn) wanted the officers to be present. App. at 197. Lt. Kester did not tell Mr. Flynn what the detail officers should do, how many officers he should hire, or when they should be present. Id. Instead, he arranged for officers to be present at the carnival in accordance with Mr. Flynn s directions. App. at Town Of Derry Knew The Carnival Was Taking Place The defendant says The Town of Derry knew the carnival was taking place in Derry. Defendant s Brief at 2. As support for this statement, it cites to a police officer s answer to a leading question during his deposition. There is no evidence that the Town Administrator was aware of the carnival and that is the only related fact that is relevant to this appeal since such knowledge might have a bearing on the Public Gathering License issue. 2

6 4. Post-Accident Police Detail The defendant states that the Derry Police, not Fiesta, decided that they wanted police in the roadway after Sophia was hit by two cars. Defendant s Brief at 3. What is important is that the Derry Police did not unilaterally place an officer and cruiser at the intersection during carnival hours after the incident, which is what they would have done if they had sole authority to manage traffic as Fiesta contends. Instead, they contacted Fiesta and obtained Fiesta s approval for the officer and cruiser. App. at ; 207. Thus, the post-accident addition of traffic control at the subject intersection supports the plaintiff s position that the defendant was capable of providing such protection for its customers before the accident. 5. The Girls Decision To Go To Burger King The defendant claims that the girls decision to go to Burger King had nothing to do with the carnival. Defendant s Brief at 4. Although that is what one of the teenage girls agreed to in response to a leading question, it is unclear what she was talking about. No witness has suggested, much less testified clearly, that the girls were going to Burger King for any reason other than so that one of them could wash her hands after they became sticky from eating cotton candy at the carnival and after they decided that she could not clean them inside the carnival fence or at the closed Ocean State Job Lots store. 6. Fiesta Safety Manual The defendant argues that its Safety Manual does not include any requirement to report unsafe acts and conditions observed off of Fiesta Show property. Defendant s Brief at 5. That is not true. The manual requires all employees to report any observed unsafe condition. App. at 183. There is not a single sentence anywhere in the manual that suggests this requirement has a 3

7 geographical limitation and the defendant s brief does not identify such a provision. Instead, the defendant s brief references a few isolated statements in the manual that apply to workplace safety and employee safety. Defendant s Brief at 5. But contrary to the defendant s assertions, these isolated references do not mean that the manual s requirements only pertain to conditions inside the boundaries of each individual carnival. That would be more likely if Fiesta operated a stationary business in one location but it operates New England s largest and finest mobile Amusement Park and sets up shop in more than sixty different communities every year. App. at 48. And contrary to its claim that it only concerns itself with employee safety, Defendant s Brief at 5, the manual prominently declares that we require our employees to... assume responsibility for the safety of those around them other workers and our customers. App. at 309 (emphasis added). The defendant cites three pages from the appendix in support of its statement that Fiesta s safety responsibility set forth in the manual is limited to unsafe conditions inside the fenced in area, or envelope, of the carnival itself. Defendant s Brief at 5. The first page is 140, which contains deposition testimony from Wally Wagemaker, Fiesta s safety engineer. However, Wagemaker s testimony on that page does not support Fiesta s statement. While Wagemaker says his primary focus is on the area where the carnival rides are, he goes on to testify that he would not ignore an unsafe condition outside the envelope but would do something about it. App. at 130. Although Fiesta does not cite the next page of the appendix, it contains Wagemaker s testimony that he would take action if he observed a condition potentially dangerous to carnival patrons regardless of where it occurred. App. at

8 The next page cited by the defense is 151, which is another excerpt from Wagemaker s deposition. The only relevant testimony on this page is Wagemaker s definition of the envelope. Nowhere does he suggest that Fiesta s safety responsibilities are limited to the envelope. The last page is 376, a single page from a pleading Fiesta filed in the Superior Court, which contains no new factual information and instead cites to Wagemaker s deposition testimony at page 130 of the appendix. The bottom line is that there is no support whatsoever for Fiesta s claim that the requirement to report all unsafe conditions set forth in its safety manual applies only to unsafe conditions inside the fenced in area of a given carnival. 7. Fiesta Employees Were Aware Of The Nonfunctioning Pedestrian Signal The defendant acknowledges that two Fiesta employees talked to the Derry police about the pedestrian signal the day after Sophia s accident. However, it argues that the police officer s report does not include any statement that either [of them] reported that they were aware that the crosswalk signal was not programmed and/or that it was not working improperly (sic). Defendant s Brief at 5. Officer Kidd s report speaks for itself, App. at 224, and it explains that the two employees arrived in town six days before Sophia s accident and they crossed the cross walk regularly and had never seen the pedestrian signal activate. Id. It goes on to say they both would grow impatient and cross against the signal. Id. This statement clearly indicates that the two employees believed the pedestrian signal was not working properly. If they thought it was functioning properly and they had simply decided to ignore the signal, why would they have told this to a police officer? 5

9 8. Public Gathering License For the first time on appeal, the defendant argues that Derry s public gathering license ordinance did not apply to it because there is no evidence that it conducted any of the activities requiring a permit application. Defendant s Brief at 6. It never raised this argument before the trial court so it is waived. This Court will not review an argument on appeal that has not been raised before the trial court. Maryea v. Velardi, 168 N.H. 633, (2016). Nevertheless, the ordinance expressly applies to a carnival which, for pay, puts on a show or promotes a public competition. App. at 328 (Section 2). Given the ordinance s purpose to deal with events in town that can be expected to result in the need for public services, Id. (Section 1), the Fiesta carnival clearly qualifies as a show and it also promotes public competition by offering games for the public to play for a price. App. at 159 (Goodhue Deposition at 22, line 5). The best evidence that the ordinance applied to Fiesta s Derry carnival is that it applied for a Public Gathering License for the next year s carnival. App. at 218. B. Enhanced Damages: The defendant argues that this Court should not review the enhanced damages claim on appeal. Defendant s Brief at 8, fn. 5. However, if the Court reverses the trial judge s order granting summary judgment, the enhanced damages claim will remain live in the case. The sole basis for the trial court s entry of summary judgment on the plaintiff s enhanced damages claim was its conclusion that Fiesta owed no duty of care to Sophia... Plaintiff s Brief at 46. Thus, if this Court holds that Fiesta owed such a duty of care, the enhanced damages claim should be reinstated along with the negligence claim. 6

10 C. Foreseeability: The defendant acknowledges that the existence of a common law duty of care in this case depends primarily upon whether it could reasonably foresee that its conduct might result in injury to another. Defendant s Brief at 9 (quoting Powell v. Catholic Medical Center, 145 N.H. 7, 13 (2000)). More specifically, the defendant appears to concede that a defendant can owe a duty of care to protect others from injury on a public highway where the risk of harm off premises was foreseeable. Defendant s Brief at 13 (citing Kellner v. Lowney, 145 N.H. 195 (2000)). The parties respective positions on foreseeability are now clear: 1. Plaintiff s Argument on Foreseeability Fiesta Shows is a for-profit corporation that has been in the business of operating mobile carnivals in New England for nearly a century. It temporarily sets up shop in dozens of different communities every year and its sole source of income is attracting millions of paying customers to the sites it visits. When it chose to operate in Derry, New Hampshire in 2013, Fiesta was aware that its presence would bring increased vehicular and pedestrian traffic on the streets and sidewalks adjacent to the temporary carnival site. Fiesta was aware that teenagers constituted a large segment of its customer base and it knew that many of them would attend the carnival without adult supervision. It operated the Derry carnival both during the day and after dark and it permitted customers to come and go freely after paying a single entrance fee. Therefore, Fiesta knew that unsupervised teenagers would be among the increased pedestrian traffic on the roads and sidewalks around the carnival after dark. Having visited the Derry location on multiple occasions, Fiesta s vice president knew that customers attending the carnival, whether on foot or in a vehicle, had to travel on Manchester Road and/or cross its six lanes. 7

11 Fiesta earned money by selling food and drinks to its customers, including cotton candy. Having been in this business for nearly a century, Fiesta knew or should have known that customers would have sticky fingers after eating cotton candy they purchased in the amusement area. Nevertheless, it chose to save money by providing nothing more than port-a-potties and hand sanitizer to such customers. Under these circumstances, it was reasonably foreseeable to New England s largest mobile Amusement Park 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. With this in mind, Fiesta should have expected that these customers, including unsupervised teenagers, would leave the amusement area, as they were permitted to do, to find a place to effectively wash the stickiness off their fingers with running water, soap, and towels or a mounted blow dryer. Fiesta could not be surprised if such a customer, in the absence of instructions or warnings to the contrary, were to go to a fast food restaurant directly across from the entrance to the carnival site to effectively wash the stickiness off their fingers. It was entirely foreseeable that an unsupervised teenager carnival customer attempting to cross a six lane road in the dark might be hit by a car and injured or killed. 2. Defendant s Argument on Foreseeability The defendant points out that the carnival was held in a fenced in area of a parking lot. It had portable toilets with hand sanitizer, sold bottled water, and offered napkins. Parking was provided in the same area where the carnival was held and there were businesses in the same parking lot that a customer could attempt to use. Defendant s Brief at 18. It contends that it was not reasonably foreseeable that a customer who ate cotton candy would choose not to use the 8

12 onsite amenities including napkins, onsite portable toilets with hand sanitizer, or the option to purchase water, and instead would leave the carnival, bypass a business in the same parking lot, bypass a business on the same side of the road, decide to go to Burger King, attempt to cross the intersection against a don t walk signal, not look before crossing, and run directly into the path of a vehicle traveling through on a green light. Defendant s Brief at Response to Defendant s Argument The plaintiff s opening brief explains why she believes it was reasonably foreseeable to Fiesta Shows, given its experience and actual knowledge, that unsupervised teenage customers may cross Manchester Road. The only response necessary here is to reiterate that Ocean State Job Lot was closed when the girls needed a bathroom to wash their hands and the existence of other restaurants along Manchester Road is irrelevant for the reasons set forth in Section A-1 above. Furthermore, the specific manner in which the girls attempted to cross Manchester Road need not have been foreseeable. Remsburg v. Docusearch, Inc., 149 N.H. 148, 154 (2003). Thus, in Kellner the fact that the victim darted into the highway did not factor into the foreseeability analysis at all. See id., 145 N.H. at 197. It follows that the risk that needed to be foreseeable in this case was that unsupervised teenager customers might cross Manchester Road in the dark. 4. Chouinard v. N.H. Speedway Both sides have extensively briefed their respective interpretations of the Chouinard case. Nothing the defense says changes the fact that Judge Loughlin did not even mention foreseeability in Chouinard and his fundamental conclusion that a duty of care cannot be owed 9

13 to one injured on a public road if the defendant has no control over the road was implicitly rejected by this Court in its unanimous decision in Kellner. 5. Kellner v. Lowney The parties have also extensively briefed their respective interpretations of Kellner v. Lowney. In its brief, the defense argues that this Court should ignore Kellner because that case involved an innkeeper who operated her business on both sides of the public road. Neither factor is determinative here. This Court did mention the innkeeper-guest relationship when distinguishing Kellner from Chouinard, but it did not explain the significance of that distinction. There is no indication that Lowney s status as an innkeeper factored into the Court s foreseeability analysis. On the other hand, the fact that the hotel operated on both sides of the road was a factor in the foreseeability analysis, but the absence of such a condition is not fatal here. As described above and in the plaintiff s opening brief, there are numerous other factors that demonstrate it was reasonably foreseeable to Fiesta that unsupervised teenage customers may cross Manchester Road in the dark. 6. Conclusion Regarding Foreseeability The parties agree that Fiesta owed a duty of care to the plaintiff if its conduct exposed her to a reasonably foreseeable risk of harm on a public highway. They disagree about whether such a risk of harm was reasonably foreseeable under the circumstances of this case. The civil justice system created by our founding fathers and the cases decided by this Court suggest that foreseeability is a low threshold and that the matter of liability is most often left to a properly instructed jury applying the conscience of the community. 10

14 The facts of this unique case fit comfortably within this Court s previous foreseeability decisions. There is nothing remotely unfair about expecting a for-profit company like Fiesta to exercise a minimal level of care for the safety of those it attracts to its business. Whether or not Fiesta lived up to that obligation should be a question for the jury. D. Voluntarily Assumed Duties: 1. Safety Manual The defendant does not dispute that the safety of its customers has always been one of its top priorities. Nor does it dispute the fact that its Safety Manual requires all Fiesta employees to assume responsibility for the safety of those around them other workers and our customers. App. at 309 (emphasis added). And it acknowledges that the manual includes a blanket mandate that all Fiesta employees must report to management all unsafe conditions that they observe. App. at 183. Fiesta argues, instead, that the reporting requirement only applies at the carnival, Defendant s Brief at 19, or inside the fenced area. Defendant s Brief at 20. However, it does not point to any text in the manual that would advise an employee of this alleged limitation. Nor does the deposition testimony it cites establish this alleged limitation. See Section A-6 above. To the extent that Fiesta suggests that it would be unreasonable to interpret its manual to impose a limitless duty on its employees, that is a matter for those who drafted the manual. In any event, the more reasonable interpretation is that the duty applies to all unsafe conditions that threaten the safety of Fiesta employees or customers. This is the interpretation Wally Wagemaker endorsed in his deposition testimony. App. at

15 The defense goes on to argue that it did not breach this voluntarily-assumed duty. Defendant s Brief at That question is not before this Court although the defendant s pertinent factual assertions are addressed in Section A-7 above. The only relevant question in this appeal is whether Fiesta owed this voluntarily-assumed duty. Whether or not it complied with the duty is a matter for the jury. 2. Police Details The defendant does not dispute the fact that it voluntarily hired police details for general public safety. It only argues that the police department was solely responsible for their assignment, placement, and duties. Defendant s Brief at 21. As is noted above, that is a disputed issue of material fact since it is contradicted by the affidavit of Lt. Kester, the Derry officer who arranged for the detail officers requested by Fiesta, and since Derry had to get approval from Fiesta to place an officer and cruiser at the intersection after Sophia s accident. See Sections A-2 and A-4 above. 3. Public Gathering License The defendant continues to try to obfuscate this claim by saying it cannot have voluntarily assumed a duty by failing to obtain a license. But that is not the claim the plaintiff is asserting. The duty that the defendant voluntarily assumed was the duty to obtain a license. It assumed this duty by choosing to operate a carnival for profit in the Town of Derry. Fiesta does not contest the fact that it did not apply for or obtain a license. It argues for the first time on appeal that it was not required to obtain a license under the terms of the applicable ordinance. Defendant s Brief at 23. This contention is addressed above in Section A

16 Fiesta also argues that its failure to apply for a license was essentially harmless because certain police officers were aware that the carnival was operating in town. Defendant s Brief at 24. This contention is addressed above in Section A-3. Furthermore, this is a causation argument that goes beyond the matter of whether Fiesta voluntarily assumed a duty of care, so it is not an issue relevant to this appeal. E. Conclusion: For the reasons set forth in her opening brief and above, the plaintiff asks this Court to reverse the trial court s order granting summary judgment to Fiesta Shows, Inc. counsel. CERTIFICATION PURSUANT TO SUPREME COURT RULE 16(10) I hereby certify that on this date two copies of this brief were hand delivered to opposing Respectfully submitted, Elaine Christen, Individually and as Administrator of the Estate of Sophia Christen By Her Attorneys: ABRAMSON, BROWN & DUGAN DATED: March 1, 2017 By: /s/ Jared R. Green Jared R. Green, Esquire (NHBA No ) 1819 Elm Street Manchester, NH (603) jgreen@arbd.com 13