Chouinard v. NH SPEEDWAY

• Decision Date: 09 August 1993
• Docket Number: No. C-92-188-L.,C-92-188-L.
• Parties: Jean CHOUINARD v. N.H. SPEEDWAY.
• Court: U.S. District Court — District of New Hampshire

829 F. Supp. 495

Jean CHOUINARD v. N.H. SPEEDWAY.

No. C-92-188-L.

United States District Court, D. New Hampshire.

August 9, 1993.

Laurence E. Kelly, Bossie, Kelly & Hodes, PA, Manchester, NH, for plaintiff.

Peter W. Mosseau, Nelson, Kinder, Mosseau & Gordon, PC, Manchester, NH, for defendant.

ORDER ON MOTION FOR SUMMARY JUDGMENT

LOUGHLIN, Senior District Judge.

Before the court is defendant New Hampshire Speedway's ("speedway") Motion for Summary Judgment (doc. no. 13) brought pursuant to Federal Rule of Civil Procedure 56(a). In this motion, defendant seeks that the complaint be dismissed as there are no genuine issues of material fact that defendant did not owe plaintiff a legal duty to protect plaintiff from the negligent drivers operating on a public way. The court previously denied defendant's motion to dismiss which raised similar arguments. See Order of the Court dated August 6, 1992, (doc. no. 10). However, affidavits submitted in support of the instant motion warrant a different ruling than that reached concerning the motion to dismiss.

The events that gave rise to this action occurred on July 14, 1990, the date on which plaintiff was injured when struck by an automobile while crossing at the intersection of Asby Road and Route 106 in Loudon, New Hampshire. Plaintiff was crossing the intersection in an attempt to pick up previously purchased tickets to the Inaugural Budweiser 300 Race held at the New Hampshire Speedway (defendant's premises) on that same date. Defendant's ticket booth was located at the intersection where plaintiff was struck.

Plaintiff alleges that she was forced to pick up her tickets at this booth even though she had purchased them months in advance and had requested the defendant to forward them to her at that time. Specifically, plaintiff states that she recalls ordering the tickets either the last week of June or the first week of July. (Doc. no. 14, Affidavit of Jean M. Chouinard attached to Objection to Motion to Dismiss at ¶ 3). Allegedly, defendant's representative indicated over the phone that the tickets would be mailed to plaintiff. Id. at ¶ 4. Plaintiff again called the defendant on either the Wednesday or Thursday preceding the July 15, 1990 race to determine the whereabouts of her tickets which had not yet been received. Id. at ¶ 5. During this telephone call, plaintiff was informed that due to the close proximity in time to the race, plaintiff would have to pick up the tickets at the speedway on July, 14, 1990, the day before the race. Id. at ¶ 6.

Defendant maintains that on July 5, 1990, it received a ticket order from plaintiff for the July 15, 1990 race. (Doc. no. 13, Exhibit C, Affidavit of Thomas Carr at ¶¶ 2-3). At the time of the ticket purchase request, defendant's policy was to mail event tickets to purchasers only if the order and payment were received at least two weeks in advance of the scheduled event. Id. at ¶¶ 5-6. Defendant contends that payment from plaintiff was not received until July 10, 1990. Id. at ¶ 6. It is further alleged that no tickets were sent to advance purchasers after July 4, 1990. Id. at ¶ 9. Instead, prepaid tickets could be obtained prior to race day in the lobby of the speedway's administrative building or on race day at one of the ticket booths. Id. at ¶ 7. It is noted that the main administrative building and ticket booths are located on the east side of Route 106 near the main grandstand. Id. at ¶ 8.

On Saturday, July 14, 1990, the day of the accident, a scheduled qualifying race was held. At approximately 3:00 p.m., plaintiff, accompanied by a companion who drove plaintiff up from Massachusetts to obtain the tickets, arrived at the speedway. Plaintiff alleges that an attempt was made to park on the side of Route 106 that was adjacent to the speedway but it became apparent that parking at that location was prohibited and made impossible by the placement of saw horses. (Doc. no. 14, Affidavit of Jean M. Chouinard, ¶ 12).

Plaintiff's companion turned the automobile around and parked on the opposite side of Route 106 across from the ticket booth at the intersection of Asby Road and Route 106. Id. at ¶ 14. Plaintiff exited the vehicle in order to cross Route 106 and obtain the event tickets. Id. at ¶ 16. While attempting to cross Route 106, plaintiff was struck by a northbound vehicle being operated by Barbara Cleveland. At the time of the accident, parking lots were available on the same side of Route 106 as the speedway. Nevertheless, plaintiff avers that use of the available parking lots would have been ludicrous since a parking fee was charged and since the parking lots were located a significant distance from the ticket booths. Id. at ¶ 19.

Loudon is a small, sparsely populated community south of Laconia. Access to the speedway is by State Highway 106 that consists of one northbound and one southbound lane. Apparently due to relatively limited access to the speedway along with concerns raised by abutters, the speedway entered into an agreement with the abutters and Town of Loudon in which, inter alia, the speedway covenanted that:

during periods when it holds races which are expected to draw more than fifteen thousand patrons to the premises, it will arrange with the Town for traffic control personnel at the following locations and will reimburse the Town to the extent it requires: at the intersections of Route 106 and Asby Road, Clough Hill Road, Shaker Road, and at any other locations required by the Town or the State. In an emergency or during a bona fide shortage of personnel, it is understood that the Loudon Police Chief has the authority to control the assignment of police personnel.

(Doc. no. 9, Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Exhibit A at ¶ 8).

Submitted with the motion for summary judgment are the affidavits of police officers and the speedway president which state that the speedway is in no way whatsoever responsible or in any way charged with the duty to control the public way. Specifically, Gary Bahre, president of the speedway, states in his affidavit that the Loudon Police Department was in sole charge of traffic control and pedestrian safety on the Route 106/Asby Road intersection. (Doc. no. 13, Exhibit A at ¶ 8).

Loudon Police Chief Robert Fiske states that Route 106 is a public highway that is controlled by the state of New Hampshire and not the speedway. (Doc. no. 13, Exhibit B at ¶ 3). He fully admits that he is in charge of assigning officers to control traffic on Route 106 in Loudon including the number of officers assigned, their placement at the site, and how and in what manner automobile and pedestrian traffic will be directed on the road. Id. at ¶ 7. Chief Fiske also states that the speedway has no supervisory authority over the assignment of the officers or the actions of the officers when they are stationed to direct traffic in the vicinity of the speedway on a race day. Id. at ¶ 8.

Finally, Officer Arthur Merrigan, a member of the Pittsfield Police Department who worked a special detail on July 14, 1990 for the Loudon Police Department (doc. no. 13, Exhibit D at ¶ 2), indicates that in his opinion, the Loudon Police Department and not the Speedway is in sole charge of traffic control on Route 106. (Doc. no. 13, Exhibit D at ¶ 7). He further states that Chief Fiske was his supervisor on July 14, 1990 and that he was not accountable to the speedway's employees or management personnel. Id. at ¶ 6. Consistent with Chief Fiske's statements, Officer Merrigan indicates that the Loudon Police Department was solely responsible for the assignment, placement, and establishment of duties of the officers regarding traffic and pedestrian control on the public ways adjacent to the speedway on July 14, and July 15, 1990. Id. at ¶ 8.

It is noted that plaintiff has not countered these affidavit statements with any facts suggesting that defendant speedway had control over the police officers in charge of traffic control on the public ways adjacent to the speedway. Instead, plaintiff counters the motion for summary judgment by contending that there is a common law duty owed plaintiff by the speedway to guard against the actions of third party negligent automobile operators. This duty is said to arise as a result of the speedway's knowledge of the hazards created by increased traffic on race days and the speedway's alleged recognition of its ability to take appropriate steps to prevent the perceived hazard from becoming a recognized harm. Plaintiff avers that the above referenced consent agreement reflects the Speedway's knowledge of the potential harm and its recognition that it is capable of taking measures to prevent the harm from becoming manifest. (Doc. no. 14, Objection to Motion for Summary Judgment at ¶ 33).

Summary judgment is proper only if, viewing the record in the light most favorable to the nonmoving party, the documents on file disclose no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1988); Fed. R.Civ.P. 56(c). "Only disputes over facts that might affect the outcome of the suit" are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.; Oliver, 846 F.2d at 105. The moving party initially must "demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Once the moving party has made the required showing, the adverse party must "go beyond the pleadings" and designate specific facts to demonstrate the existence of a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553; Oliver, 846 F.2d at 105; Fed.R.Civ.P. 56(e). The federal rules "mandate the entry of...