by John A. Lassey

The first case, Kellner v. Lowney, involved a claim by the father of a five-year old boy who was struck by a motor vehicle on Route 302 in Bethlehem, New Hampshire, while his family were guests in the defendant's motel. The facts are somewhat unusual in that portions of the defendant's motel were on either side of the state highway. Many of the guests in the motel were members of the Orthodox Jewish faith, and a portion of the premises was made available for Sabbath services during the summer. Some guests had to cross back and forth over the highway to attend these services. Following Sabbath services on July 10, 1993, the plaintiff's son darted into the highway and was struck by a passing motor vehicle.

The trial court granted defendant's motion for summary judgment, concluding that a property owner had no duty to warn or otherwise protect guests from dangers which existed only off of the premises. The Supreme Court reversed, holding that there is a special relationship existing between an innkeeper and his/her guests which gives rise to a duty of reasonable care. The Court further held that under the circumstances of the case, a jury could find that injury to guests of the hotel from the adjacent highway was foreseeable to the owner. In its decision, the New Hampshire Supreme Court quoted from the California decision of Barnes v. Black ⁽¹⁾ and said "'[a] landowner's duty of care to avoid exposing others to a risk of injury is not limited to injuries that occur on premises owned or controlled by the landowner. Rather, the duty of care encompasses a duty to avoid exposing persons to risks of injury that occur offsite if the landowner's property is maintained in such a manner as to expose persons to an unreasonable risk of injury offsite.'"

The other decision, Iannelli v. Burger King Corp., involved an assault by patrons of a restaurant upon another patron of the same restaurant.

One of the plaintiffs, Nicholas Iannelli, was visiting the defendant's restaurant with his family, which included three young children. A number of teenagers sitting near the Iannelli family were apparently using foul language. When Iannelli asked them to stop, they set upon him, knocked him to the floor, and struck him in the head with a chair.

The trial court granted summary judgment in favor of the defendant, ruling, as a matter of law, that the defendant owed no duty to protect its patrons from criminal assault.

The Supreme Court reversed, citing many of the same principles and cases it cited in the Kellner decision and stating that "[w]hile as a general principle no such duty exists, here it could be found that the teenagers' behavior in the restaurant created a foreseeable risk of harm that the defendant unreasonably failed to alleviate."

In ruling on both of these cases, the Supreme Court relied on the doctrine of forseeability discussed in Palsgraf v. Long Island Railroad Co. ⁽²⁾ and on the New Hampshire cases of Sargent v. Ross ⁽³⁾and Ouellette v. Blanchard, ⁽⁴⁾ among others, for the proposition that "owners and occupiers of land are governed by the test of reasonable care under all of the circumstances in the maintenance and operation of their property." ⁽⁵⁾

Notes:

1.    84 Cal. Rptr. 2d 634, 637 (Ct. App. 1999).

2.    248 N. Y. 339, 162 N.E. 99 (1928).

3.    113 N.H. 388, 308 A. 2d 528 (1973).

4.    116 N.H. 552, 364 A. 2d 631 (1976).