Barker

Plaintiffs, the widow and five surviving minor children of a patron of a drive-in restaurant, have appealed from separate summary judgments in favor of the owners and of the operator of the restaurant, respectively, in an action for the wrongful death of the patron. The record on the motion for summary judgment indicates that the patron received the injuries which resulted in his death, while waiting at the service window when he was crushed against the restaurant building by a car which lurched forward over a wooden barrier.

The plaintiffs contend that there was a triable issue of fact concerning whether the defendants were negligent in failing to protect the patron from the potentially harmful conduct of the defendants’ other customers, and that, therefore, the court erred in granting a summary judgment. The owners and the operator by separate briefs assert that there was no triable issue of fact, because the issue presented by the motion for summary judgment, the duty of the defendants, was an issue of law which the trial court properly resolved in their favor. A review of the facts in the light of applicable precedents reveals that the question of whether the owners…