Cinco De Mayo Celebrant Hit Crossing Street Leaving Bar

Was Tavern Liable for Failure to Maintain Safe Passage?
Scene set: A bar patron was hit by a car while crossing a highway after attending a Cinco De Mayo celebration. The patron sued the bar for failure to maintain safe passage. After issue was joined and depositions were taken, the bar moved for summary judgment.

Stacy L. Rodriguez testified at her deposition that she arrived at the Maya Café & Cantina with a friend at approximately 6:00 p.m. There was a Cinco De Mayo celebration happening both inside and outside of the restaurant. In the parking lot there was music and there were tents with venders selling food and alcohol. Rodriguez asserted that she drank two sangrias while waiting for a table between 6:00 p.m. and 7:00 p.m. She drank one more sangria while eating dinner between 7:00 p.m. and 9:00 p.m. Her friend left at approximately 9:00 p.m. but planned to pick her up later that evening. Rodriguez then spent an hour outside dancing and socializing. At approximately 10:00 p.m. she called her friend to pick her up. Her friend then called back and said that the police outside the restaurant told her that she was not allowed to pick Rodriguez up in the restaurant parking lot. And the friend informed her that she had to pick her up in a parking lot adjacent to the Home Depot across Route 9.
Rodriguez contended that she then walked to the corner where there was a traffic light and that she had the intention of crossing Route 9. Rodriguez stated that she observed numerous people crossing Route 9 at that time in different locations, but that she was alone when she proceeded to cross at the traffic light. And she claimed that she waited for the light to turn red and then crossed the three northbound lanes of traffic to the median in the center of Route 9. Rodriguez remembered stepping off the median into the southbound lane and then waking up in the middle of Route 9.
Matthew McNamara testified at his deposition that he was driving southbound on Route 9 and slowed in the vicinity of the Maya Café because numerous people were outside and crossing Route 9. He asserted that, as he continued driving, his vehicle struck Rodriguez who was crossing Route 9.
Rodriguez asserted that, prior to crossing Route 9, she did not speak with police officers who were standing on the periphery of the Cinco De Mayo celebration. And testified that she was not intoxicated and felt “perfectly fine” when she decided to cross Route 9.
Rodriguez asserted that Maya was negligent in failing to provide her with safe access to the parking lot across the street from its restaurant. She asserted that, because Maya closed its parking lot to motor vehicles and used it to serve food and alcoholic beverages, Maya created a dangerous situation in which patrons had to cross Route 9 at night. And she maintained that Maya was negligent because it did not provide warning signs, crossing guards, adequate lighting or a shuttle service to ensure that patrons could safely cross Route 9.
To establish negligence, a plaintiff must demonstrate the existence of a duty the defendant owed the plaintiff, a breach of that duty and that the breach was a proximate cause of injury. Liability for a dangerous or defective condition on property is generally predicated upon ownership, occupancy, control or special use of the property. An abutting owner will be liable to a pedestrian injured by a dangerous condition on public property only when the owner created the condition or caused the condition to occur because of a special use. The principal of special use imposes an obligation on the abutting landowner only where he puts part of a public way to a special use for his own benefit and the part used is subject to his control. 
Maya established that it owed no duty to Rodriguez to ensure her safe passage across Route 9, a public road. Maya’s evidence established that it had no ability to control the conditions on Route 9. Under such circumstances, Maya owed no duty to Rodriguez for the alleged dangerous condition posed to pedestrians attempting to cross Route 9 at night. The mere fact that Maya closed its parking lot to motor vehicles did not create such a duty. Rodriguez’ allegation that Maya knew that patrons would cross the street created a duty to provide safe passage across public roads presumed that Maya had the obligation to provide patrons with safe access to and from its property beyond the borders of that property and Maya had the authority to control pedestrian crossing conditions on Route 9. The Court was unaware of any law or precedent that created a duty of a commercial establishment to ensure that patrons had safe access to the property boundaries of that establishment.
Maya also established that it did not assume a duty of reasonable care by placing Rodriguez in a more vulnerable position than she would have been in had Maya done nothing. Rodriguez unequivocally testified that she was not intoxicated when she decided to cross Route 9 and did not rely on Maya in any capacity to ensure her safe passage across Route 9. And stated that she did not see any escorts or signs pertaining to crossing Route 9 and that she unilaterally made the decision where to cross. In sum, the unfortunate fact that Rodriguez was struck by a motor vehicle while crossing Route 9 did not demonstrate that Maya owed her a duty to ensure safe passage. Rodriguez did not allege that she was crossing Route 9 in a manner different than that of the general public. The mere fact that Maya had a Cinco De Mayo celebration occurring on its premises in the vicinity of the motor vehicle accident did not alter the result.
In opposition, Rodriguez failed to raise a material issue of fact. The conflicting deposition testimony about whether Maya employed a crossing guard or had signs warning of the dangers of crossing Route 9 did not create an issue of fact because Rodriguez testified that she did not rely on anyone or any actions of Maya to help her cross the street. Since Maya had no duty to Rodriguez with respect to the conditions attendant to crossing Route 9, it did not matter whether Maya had a crossing guard or signs present.
Maya did not create a dangerous condition. Crossing six lanes of travel on Route 9 in a location that was not well lit and did not have a crosswalk could constitute a dangerous condition. Except that Maya was not responsible for the maintenance or safety of pedestrians crossing Route 9 as the roadway was beyond the bounds of its property. The mere fact that Maya held an event in proximity to Route 9 did not create such a duty. Notably, Rodriguez testified that a police officer and not Maya advised her friend that she was required to park across the street to do the pickup. And there was no evidence in the record that the conditions surrounding the crossing of Route 9 were under Maya’s control.
Nor did the expert opinion of Rodriguez’ traffic engineer provide grounds to avoid summary judgment. The expert asserted that Maya created a dangerous condition for pedestrians crossing Route 9. The engineer, however, was not qualified to offer a legal opinion as to whether Maya owed a duty to pedestrians outside the boundaries of its property. As a matter of law, on the facts of the case, the Court found that Maya did not have such a duty. There was no evidence that Maya benefitted from Route 9 in a manner different from that of the general public. To construe the benefit Maya received from the use of a parking lot across Route 9 as a “special benefit” would effectively allow the special use exemption to eviscerate the rule exempting abutting landowners from liability for injury on public ways. And Rodriguez’ deposition testimony demonstrated that she did not rely on any actions of Maya to ensure safe passage across Route 9.
Maya’s motion for summary judgment dismissing Rodriguez’ complaint was granted.

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