MacLean v. Parkwood, Inc., 6604.

• Decision Date: 11 January 1966
• Docket Number: No. 6604.,6604.
• Citation: 354 F.2d 770
• Parties: Pamela A. MacLEAN et al., Plaintiffs, Appellants, v. PARKWOOD, INC., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

354 F.2d 770 (1966)

Pamela A. MacLEAN et al., Plaintiffs, Appellants, v. PARKWOOD, INC., et al., Defendants, Appellees.

No. 6604.

United States Court of Appeals First Circuit.

Heard November 1, 1965.

Decided January 11, 1966.

Paul R. Cox, Dover, N. H., with whom Stanley M. Burns and Burns, Bryant & Hinchey, Dover, N. H., were on brief, for appellants.

Shane Devine, Manchester, N. H., with whom Devine, Millimet, McDonough, Stahl & Branch, Manchester, N. H., was on brief, for Parkwood, Inc., appellee.

Before ALDRICH, Chief Judge, and HASTIE^* and McENTEE, Circuit Judges.

McENTEE, Circuit Judge.

Plaintiffs, MacLean and Gordon, brought this action in the United States District Court in New Hampshire¹ to recover damages for injuries sustained by them as the result of an automobile collision. The collision occurred in the vicinity of the Howard Johnson restaurant owned and operated by the defendant Parkwood, Inc., which is located just off the Rotary Traffic Circle and the Route 1 By Pass in Portsmouth, New Hampshire.

The complaint charged that Parkwood negligently failed to erect and maintain proper signs showing the entrance to and exit from its restaurant; that it negligently permitted misleading and confusing signs to be erected and maintained on adjacent property; that this caused the plaintiffs, who were patrons of defendant's restaurant, to become confused upon exiting from said restaurant and that as a result plaintiffs were involved in the accident in question.

In its answer Parkwood denied that it controlled or had the right to control the establishment and maintenance of the exits and entrance roads connecting its restaurant with adjacent public ways and denied that it had the right to erect or maintain exit or entrance signs. Thereupon Parkwood moved for summary judgment under Rule 56 Fed.R. Civ.P. claiming that the depositions taken in the case show that the parking area from which plaintiffs exited, the approach roads to the highway, and the point where the accident occurred were all on public highway property owned by the state. Parkwood contends that it owes no duty to plaintiffs with reference to erecting proper signs on land adjacent to its property and that it is entitled to a judgment as a matter of law.

The district court found that there was no genuine issue of material fact pertaining to the existence or non-existence of a duty owing from Parkwood to plaintiffs and granted defendant's motion for summary judgment. The case is now before us on plaintiffs' appeal.

The depositions, documents and the oral testimony submitted in connection with the motion for summary judgment reveal the following facts. On the evening of February 9, 1964, the plaintiffs who had patronized defendant's restaurant on their way from Maine to Boston, left the restaurant about 10:30 p. m. to make a stop in the City of Portsmouth before proceeding to Boston. They drove out of one of the usual exits from the restaurant parking area and headed in a southerly direction away from the restaurant building. Miss MacLean was driving. They proceeded beyond the southerly boundary of the Parkwood property, along a public road known as "the old by pass" road; passed a motel situated on their left and a local street running to their left known as Boyd Road. Just before they reached Boyd Road there was a directional sign on the right side of the highway with arrows pointing to the left for Portsmouth and pointing to the right for Boston, Portland and Dover. Miss MacLean saw this directional sign but did not see Boyd Road at the left, and she continued on for a short distance to a "Y" fork in the road. There were no signs at the fork pertaining to the road leading to the left, but there was a "one way" sign pertaining to the road leading to the right. Plaintiffs mistakenly took the road running to the left thinking this was the road to Portsmouth. Instead, it was a one-way entrance from the Route 1 By Pass. After driving a short distance on Route 1, which is a divided highway, plaintiffs discovered they were going south on the north bound lane or wrong side of the divided highway. Before Miss MacLean could correct this situation, her automobile was struck by a north bound vehicle operated by the defendant, Charles J. Dumas. Plaintiffs claim they were exposed to this danger due to the fact they were confused by the misleading sign located just north of Boyd Road and also due to the fact that the defendant had failed to warn them of this dangerous condition.

Defendant'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 a "Relocation Agreement" with Parkwood with reference to the new restaurant site. As it is presently situated the front of the restaurant building is bounded by state property. On this state land is the road which was used by plaintiffs in exiting from the restaurant and also a parking area which is used by Parkwood's patrons.

The evidence also showed that the defendant employed a policeman during the summer months "to keep its parking lot in order"; that defendant installed two large floodlights in the parking area; and that during the winter, defendant sometimes employed its own plowing facilities for the removal of snow in the parking area although the state plows "always come through, because that's a state highway * * *."

Construing the evidence in a light most favorable to plaintiffs, the most that could be said is that Parkwood had dominion over or possession of the state property comprising the parking area immediately in front of the restaurant in that it had assumed control...