MG+M The Law Firm (“MG+M”) Boston Attorneys Jennifer Whelan, Brian Gross, and Christos Koutrobis successfully obtained summary judgment for their client in a wrongful death case brought in the Superior Court of New Hampshire, Grafton County.
Plaintiff’s decedent was struck and killed by a motor vehicle while crossing a New Hampshire highway towards a newly constructed store owned by MG+M’s client (the “Client”). Prior to the construction of the new store, there was a crosswalk at or near the location in the highway where the Plaintiff’s decedent was struck and killed. The crosswalk was removed as part of the construction project, so that a turn lane into the store could be created. The client and its contractors proposed to replace the crosswalk, but the New Hampshire Department of Transportation determined that the crosswalk should not be replaced, based on its judgment that the crosswalk location created an unreasonable risk to pedestrians. Plaintiff argued it was foreseeable that pedestrians would continue to cross the highway to access the store at the location of the old crosswalk and the client owed Plaintiff’s decedent a duty to either construct an alternative pedestrian pathway across the highway or to warn pedestrians that crossing the highway at that location was no longer authorized.
In her opposition to the Client’s summary judgment motion, Plaintiff argued it was foreseeable to the Client that pedestrians would cross the highway to access its store, thereby creating a duty on the part of the Client. In doing do so, Plaintiff sought to rely upon the New Hampshire Supreme Court’s decision in Kellner v. Lowney, 145 N.H. 195 (2000), which held that a landowner owed a duty to a person crossing a state highway under a unique set of circumstances. In rejecting Plaintiff’s argument, the judge noted that Kellner was factually distinguishable in several significant respects, including: 1) the defendant owned and operated a motel with facilities on both sides of the highway; 2) the defendant permitted religious services to be conducted on the opposite side of the highway from where the motel guests’ living quarters were located; and 3) the plaintiff’s son was struck by a motor vehicle while crossing the highway to return to his living quarters after attending religious services. As distinguished from Kellner, the Client’s premises is located on only one side of the highway and no special relationship existed between it and the Plaintiff’s decedent, unlike the special innkeeper-guest relationship that was present in Kellner. The Court agreed with MG+M’s arguments and granted the Client’s motion for summary judgment.
This practical view and application of classic reasonableness standards affirms the general rule that a landowner’s duty typically does not extend past its boundary lines. Further, the decision highlights the State’s sole authority to make design changes on its roadways. While private individuals and corporations will continue to make design changes to state roadways and intersections, those changes are subject to the approval of the New Hampshire Department of Transportation, which remains the ultimate decision-making authority.