___________________________

Hillsborough-southern judicial district

No. 99-016

NICHOLAS AND JODIANN IANNELLI, INDIVIDUALLY,

AND AS P/N/F OF NICOLE, JEREMY & RENEE IANNELLI

v.

BURGER KING CORPORATION

August 18, 2000

Jordan, Maynard & Parodi, PLLC, of Nashua (Steven L. Maynard on the brief and orally), for the plaintiffs.

Backus, Meyer, Solomon, Rood & Branch, of Manchester (Robert A. Backus on the brief and orally), for the defendant.

McHUGH, J. The plaintiffs, Nicholas and Jodiann Iannelli, individually and on behalf of their three children, brought a negligence action against the defendant, Burger King Corporation, for injuries sustained as a result of an assault at the defendant's restaurant. The plaintiffs appeal the Superior Court's (Hampsey, J.) grant of summary judgment in favor of the defendant. We reverse and remand.

The Iannellis brought an action alleging that they sustained injuries resulting from the defendant's breach of its duties to maintain its premises in a reasonably safe condition and to provide staffing, supervision, and protocols so that employees could reasonably and properly deal with foreseeable situations affecting the safety of patrons. While in the defendant’s restaurant with his family, Nicholas Iannelli was assaulted by one or more unidentified persons. He alleges he received physical injuries, while his family, who witnessed the assault, alleges psychological damages. The trial court granted the defendant's motion for summary judgment, ruling that the defendant did not owe the Iannellis a duty of care to protect them from assault. The trial court reasoned that even considering all of the evidence in the light most favorable to the plaintiffs, there was no basis to conclude that the defendant could have foreseen the assault. This appeal followed.

Prior to issuing its ruling, the trial court reviewed the pleadings, the depositions of Nicholas and Jodiann Iannelli, as well as an affidavit of the restaurant manager. Those documents revealed the following facts. During the late afternoon or early evening hours of December 26, 1995, the Iannelli family went to the defendant's restaurant for the first time. Upon entering the restaurant, the Iannellis became aware of a group of teenagers consisting of five males and two females, whom they alleged were rowdy, obnoxious, loud, abusive, and using foul language. Some in the group claimed they were "hammered." Initially this group was near the ordering counter talking to an employee whom they appeared to know. The Iannellis alleged that one of the group almost bumped into Nicholas. When that fact was pointed out, the teenager exclaimed, "I don't give an F. That's his F'ing problem."

Nicholas asked his wife and children to sit down in the dining area as he ordered the food. While waiting for the food to be prepared, Nicholas joined his family at their table. The teenagers also moved into the dining area to another table. The obnoxious behavior and foul language allegedly continued. One of the Iannelli children became nervous. Nicholas then walked over to the group intending to ask them to stop swearing. As Nicholas stood two or three feet from the closest of the group, he said, "Guys, hey listen, I have three kids." Whereupon, allegedly unprovoked, one or more of the group assaulted Nicholas by hitting him, knocking him to the ground and striking him in the head with a chair.

Although the group was obnoxious and used foul language, they had not previously acted in a physically intimidating manner towards the Iannelli family. Prior to the assault, the plaintiffs did not report the group's behavior to the restaurant manager or ask him to take any action. The Iannellis were in the restaurant approximately fifteen to twenty minutes. The manager stated that he had worked at the restaurant for three years prior to the day in question and had never seen a customer attack another customer. He had no recollection of the group engaging in offensive conduct prior to the assault.

The plaintiffs argue that a commercial enterprise such as a restaurant has a general duty to exercise reasonable care toward its patrons, which may include a duty to safeguard against assault when circumstances provide warning signs that the safety of its patrons may be at risk. They also contend that the trial court erred by failing to analyze the pleadings and the facts to be offered at trial in the light most favorable to them.

The defendant invoked the summary judgment statute in an effort to have this case dismissed prior to trial. See RSA 491:8-a (1997). While summary judgment can at times be a useful avenue to pursue in order to eliminate baseless claims from costly litigation, trial courts must be wary of its application. Its most effective use is in breach of written contract or debt cases. See 73 Am. Jur. 2d Summary Judgment