MacLean v. Parkwood, Inc.

• Decision Date: 20 July 1965
• Docket Number: 2513.,Civ. A. No. 2512
• Citation: 247 F. Supp. 188
• Parties: Pamela A. MacLEAN v. PARKWOOD, INC., and Charles J. Dumas. Ruth Ellen GORDON v. PARKWOOD, INC., and Charles J. Dumas.
• Court: U.S. District Court — District of New Hampshire

247 F. Supp. 188

Pamela A. MacLEAN v. PARKWOOD, INC., and Charles J. Dumas.

Ruth Ellen GORDON v. PARKWOOD, INC., and Charles J. Dumas.

Civ. A. Nos. 2512, 2513.

United States District Court D. New Hampshire.

July 20, 1965.

Burns, Bryant & Hinchey, Stanley M. Burns, Dover, N. H., for plaintiff.

Devine, Millimet, McDonough, Stahl & Branch, Shane Devine, Manchester, N. H., for Parkwood, Inc.

Boynton, Waldron & Dill, Richard E. Dill, Portsmouth, N. H., for Charles J. Dumas.

CONNOR, District Judge.

This is a negligence action, arising out of a motor vehicle mishap. Jurisdiction is founded on diversity of citizenship. Plaintiffs in their complaints charged defendant Parkwood with negligent failure to erect and maintain reasonably suitable signs showing the proper entrance to and exit from defendant's restaurant, or negligent failure to prevent others from erecting and maintaining improper signs. Plaintiffs further alleged that such negligence caused plaintiffs, patrons of defendant's restaurant, to become confused upon exiting from the premises and as a result, that plaintiffs' car collided with the car of defendant Dumas, injuring the plaintiffs.

Defendant Parkwood answered, denying, among other things, that it had controlled or had the right to control the establishment and maintenance of exits or entrances from adjacent public ways, and denying that it had a right to control the erection or maintenance of entrance or exit signs.

Parkwood then moved for summary judgment, contending that certain depositions in the case showed that the land upon which its negligence was alleged to have occurred was public highway property. Parkwood asserted, in effect, that it consequently had no duty to plaintiffs with respect to signs on that land, and indeed no right to put up highway or directional signs. Parkwood maintains, therefore, that it is entitled to judgment as a matter of law.

Parkwood attached certain depositions to its motion and at the hearing offered testimony of witnesses and documentary evidence tending to show ownership of the land in question. The Court permitted Parkwood's counsel to proceed in this manner, in the interest of saving time and on the basis that testimony is as reliable as affidavits. However, the Court desires to note at this time that it is preferable on summary judgment motions to proceed by way of affidavit. The summary judgment procedure is not to be used as preliminary trial, or demonstration of "conclusive proof" of certain facts. Rather it is a mechanism for showing that as to certain facts there is no genuine dispute and that on these facts the moving party is entitled to judgment as a matter of law. The Court's role in summary judgment proceedings is not to resolve issues of fact, but merely to pinpoint those facts which are not at issue. Presentation of affidavits, rather than testimony, would have permitted the Court to perform its task more efficiently. In disposing of the present motion, the Court will rely only on those facts as to which there appears no genuine dispute, as is required by Civil Rule 56.

Upon the pleadings, depositions, testimony and documents submitted, the Court finds the following facts to be undisputed as between the parties to this motion:

1. On February 9, 1964, plaintiffs MacLean and Gordon had patronized the Howard Johnson Restaurant which is owned and operated by defendant Parkwood, Inc., near the Portsmouth Traffic Circle. They left the restaurant, entered their car, and with plaintiff MacLean driving, proceeded in a southerly direction, away from the restaurant building. Some distance from the restaurant, they encountered a fork in the road, and took the branch to the left. This route led them onto the Route 1 By-pass, a divided highway, where they discovered they were travelling southerly on the north-bound lanes. A collision with another car followed.

2. Defendant Parkwood's restaurant formerly occupied another site, to the north of its present location. The State of New Hampshire required the old location for highway reconstruction and entered into an agreement with Parkwood in 1949 (hereinafter referred to as the Relocation Agreement), which set forth the mutual rights and obligations of the parties incident to the shifting of the restaurant site.

3. At its present location, Parkwood's restaurant is bounded on its west side by property owned by the State. On this land is the road which was used by plaintiffs in departing from the restaurant, and on the other side of the road is a parking area which, though on State land, is used by Parkwood's patrons. Defendant Parkwood had in the past plowed the road in front of the restaurant in winter, had provided a policeman to direct parking in the summer months and had erected flood lights in the parking area to illuminate its restaurant.

4. The road on which plaintiffs departed from the restaurant is entirely on State property and is classified as a public highway by the State. The road generally occupies the same location as did the so-called "old by-pass" before reconstruction of the highways in the vicinity. For convenience, the Court will refer to it as "the Road."

The Road describes an arc terminating at Woodbury Avenue to the northeast and at Route 1 to the southwest. According to plans and aerial photographs provided to the Court, Parkwood's restaurant and a motel to the south of it are the only abutters with access to the Road. South of the motel, a local street, known as Boyd Road, takes off from the easterly side of the Road.

The fork in the Road, at which plaintiffs took the left branch, lies south of the entrance to Boyd Road, some 400 feet south of the front door of Parkwood's restaurant and about 175 to 200 feet south of the southwest boundary of Parkwood's property. Like the rest of the Road, the fork is on State property and was constructed by the State.

5. Plaintiffs MacLean and Gordon did not request any travel information or direction from defendant Parkwood, nor was any offered to them. Parkwood at no time erected signs on or off its property to direct the flow of traffic in the area. Such signs as existed for this purpose were erected by the State of New Hampshire on or adjacent to the Road.

On these facts, the Court must determine whether defendant Parkwood is entitled to judgment as a matter of law.

The Court concludes that there are no genuine issues of material fact bearing on the existence or non-existence of a legal duty of defendant Parkwood to these plaintiffs. Analysis of plaintiffs' complaints and other papers they have filed indicates that the particular hazardous condition of which they complain, which they assert confused them and which they say led to the collision, existed at the fork in the Road and caused them to take the left branch of the fork. It is clear that this fork lay on State land some distance beyond defendant Parkwood's legal boundaries. The facts also indicate that while Parkwood may have...