57 Mass. App. Ct. 217 | Mass. App. Ct. | 2003
A jury returned verdicts for the plaintiff on claims that the defendants’ negligent operation of a tavern proximately caused the death of Thomas Christopher, who was struck by a car as he fled an altercation with patrons of the tavern that took place outside.
BACKGROUND
1. Proceedings. The plaintiff sought recovery for wrongful death under G. L. c. 229, § 2. We construe the plaintiff’s case as arising from the alleged breach of the duty to protect tavern patrons from harm and the duty not to sell alcoholic beverages to underage persons. See Pucci v. Amherst Restaurant Enterprises, Inc., 33 Mass. App. Ct. 779, 780 n.2 (1992). Upon general verdicts, the jury found Father’s Huddle Café, Inc.,
The trial judge denied the defendants’ motions for directed verdicts made at the close of the plaintiff’s case and renewed after the defendants rested; denied a request that the jury be specially instructed to return separate verdicts on each of the plaintiff’s theories of negligence; and denied the defendants’ motions for judgment notwithstanding the verdicts. The defendants appeal the denial of their motions for directed verdicts and the denial of their motions for judgment notwithstanding the verdicts.
2. Facts. “[I]n reviewing the denial of the defendant[s’] motians for directed verdict and judgment notwithstanding the verdict, we will construe the evidence most favorably to the plaintiff and disregard that favorable to the defendant[s].” Cimino v. Milford Keg, Inc., 385 Mass. 323, 326 (1982). See Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 16 (1998). We sustain a jury verdict if there is anywhere in the evidence any combination of circumstances from which a reasonable inference could be drawn supporting the verdicts. See Michnik-Zilberman v. Gordon’s Liquor, Inc., 390 Mass. 6, 7 n.l (1983); McCartin v. Westlake, 36 Mass. App. Ct. 221, 224 (1994). Although the question is a close one, the issues of negligence and causation are most appropriately left to the jury, and there is enough in the evidence to support the jury verdicts as to Father’s Huddle Café, Inc.
The evidence, in summary, warrants finding that Frederick
McFadries knew Ellis, a former high school classmate. The doorman, Callinan, observed unpleasant looks pass between El
When Baker and Lombard exited the tavern, they observed Ellis and Boots at the comer of Beacon and Mountfort Streets, some fifty yards away; the Ellis group then started shouting. A car, which had made a U-tum and was then headed in the directian of the tavern, stopped near Ellis.
Callinan stepped outside the door when Baker and Lombard left the tavern to join in the fighting. He was, he said, “checking to see if [McFadries and Christopher] were going to be okay, you know; so I stood in the doorway and I looked up. There was no way I was going to be able to hold back these four kids from leaving the bar. I mean, I wouldn’t do that, you know. So I just wanted to see if they were really going to do what they wanted to do, and they did.” Callinan, who apparently did not see Christopher and McFadries get in or out of their car, continued to watch as Baker and Lombard left the tavern to join Ellis and Boots in beating McFadries. Although estimating that the fighting at the comer was about fifty yards away, it was sufficiently close that Callinan was able to recognize each of the participants and their various roles in the escalating violence. He watched Christopher — who had by then parked his car, approached those involved in the fighting,
The jury could have found that, from the moment Baker and Lombard left to join in the fighting to the point at which Christopher was hit by a car, up to ten minutes had elapsed during which Callinan stood watching. When police were finally called, they arrived within two to three minutes.
DISCUSSION
1. Legal Framework. To be liable for negligent conduct, one must have failed to discharge a duty of care owed to the plaintiff, harm must have been reasonably foreseeable, and the breach or negligence must have been the proximate or legal cause of the plaintiff’s injury. See Stamas v. Fanning, 345 Mass. 73, 75-76 (1962); Tobin v. Norwood Country Club, Inc., 422 Mass. 126, 141 (1996). We proceed to discuss the basis for our conclusion that the evidence supported findings of negligence on the part of the tavern,
2. Breach of duty. Father’s Too concedes that a tavern has a duty of reasonable care to prevent foreseeable harm to its patrons. Pertinent to this case, that duty has been found to exist
The tavern also had a duty not to serve alcohol to minors. See Tobin v. Norwood Country Club, Inc., 422 Mass. at 136 (service of alcohol to minors “is the subject of special concern and the basis of regulatory action or liability”). See also G. L. c. 138, § 34; G. L. c. 231, § 60J.
Unlike the duty of taverns to refrain from serving obviously intoxicated adults, the duty to refrain from serving alcohol to youths does not depend on whether they are or appear to be intoxicated. A breach of the duty occurs “when the establishment knew or reasonably should have known it was furnishing alcohol to [persons under the age of twenty-one].” Tobin v. Norwood Country Club, Inc., supra at 135. This is because youths “are thought to be peculiarly susceptible to the effects of alcohol and less able to make decisions about what amount of alcohol they may safely consume in various situations.” Id. at 136. The jury could have found that the tavern’s employees knew that Baker and Lombard were underage when they were
The duty to protect patrons also does not require notice of intoxication, but may be triggered when conduct of another patron puts a tavern owner or its employees on notice that harm is imminent. See Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 641 (1961) (bartender had observed a boisterous patron engage in “words back and forth,” “loud talk,” and “a lot of commotion” before the patron charged the plaintiff and landed on him); Carey v. New Yorker of Worcester, Inc., 355 Mass. 450, 451 (1969) (patron, who was part of a group at a booth across the aisle from the plaintiff that was “making a lot of noise,” “talking loud,” “getting up and jumping around,” shot the plaintiff as he walked). Reasonable steps taken to prevent the harm will discharge the duty — such as, for example, denying service to or “shutting off” a patron who appears intoxicated or who has requested too many drinks, or calling police when a fight occurs or an aggressive patron threatens assault. See, e.g., Greco v. Sumner Tavern Inc., 333 Mass. 144, 145 (1955); Carey v. New Yorker of Worcester, Inc., 355 Mass. at 452.
We disagree with Father’s Too that the duty to protect Christopher ended as soon as he left the tavern. As with the duty to protect third parties from the negligent driving of an obviously intoxicated patron, see generally Adamian v. Three Sons, Inc., 353 Mass. 498, 500 (1968), the duty to protect patrons extends to all reasonably foreseeable harm including, in some circumstances, harm that occurs at a distance from the premises. See O’Gorman v. Antonio Rubinaccio & Sons, 408 Mass. 758, 761 n.2 (1990) (bar owner “has the duty to protect persons on or about the premises from the dangerous propensities of its patrons, served or unserved. When the bar has served a potentially dangerous patron, the duty may extend beyond the premises”). See and compare Tobin v. Norwood Country Club,
In this case, doorman Callinan’s observations — words exchanged and dirty looks passed between Ellis and McFadries, Ellis’s quick exit to overtake McFadries and Christopher, followed by Lombard and Baker who confirmed that a fight was taking place and then ran to join the fighting,
3. Negligence and causation. Having determined that the tavern was in breach of a duty owed to Christopher, we now consider whether there was evidence to support the jury’s finding that the tavern’s negligence proximately or legally caused his injuries. See Cimino v. Milford Keg, Inc., 385 Mass. at 326, 328-329 & n.6. Questions of negligence and causation are usually left to the jury. See Zezuski v. Jenny Mfg. Co., 363 Mass. 324, 327 (1973); Pucci v. Amherst Restaurant Enterprises, Inc., 33 Mass. App. Ct. at 785; O’Hanley v. Ninety-Nine, Inc., 12 Mass. App. Ct. 64, 68 (1981) (“the question of the proximate cause of the plaintiff’s injury is one for the jury”).
With respect to the knowing service of alcoholic beverages to underage patrons, the jury could have inferred that the agreement of Baker and Lombard to provide back-up to Ellis, their decision to follow him out the door so that they could catch up with McFadries and Christopher and rough them up, and their subsequent beating and chasing of Christopher into traffic constituted behavior that was influenced by their consumption of alcohol. See Tobin v. Norwood Country Club, Inc., 422 Mass. at 140. As to the tavern’s failure to protect patrons, the jury could reasonably have inferred that Callinan was on notice when Baker confirmed Callinan’s suspicions that there was going to be a fight, and that the situation posed a real danger to patrons of the tavern, including Christopher. Callinan himself testified that it was then that he stepped outside in order to check “to see if they were going to be okay.”
“The question whether the risk of injury was foreseeable is almost always one of fact.” Moose v. Massachusetts Inst. of Technology, 43 Mass. App. Ct. 420, 425 (1997). The jury could have found, as previously noted, that up to ten minutes passed between that time and the moment that Christopher was struck by the car, and that, once called, police responded and were at
We also reject the defendants’ claim that the conduct of Mc-Fadries, in returning to the tavern street comer to fight when he might have driven on, relieves the tavern of liability for its negligence. The question of what McFadries did, and whether that conduct was negligent, was also a jury question. See Restatement (Second) of Torts § 453 comment b (1965).
“Even if the defendant could not have foreseen the precise manner in which the injury occurred, ‘[wjhere the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not reheve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.’ ” Lawrence v. Kamco, Inc., 8 Mass. App. Ct. 854, 858 (1979), quoting from Restatement (Second) of Torts § 442B (1965).
Whether McFadries’s conduct was an intervening force or
Here, the tavern’s negligence arose when, after learning that there would be a fight between patrons who had earlier displayed animosity, assisted by underage patrons who were served alcohol and then became pugnacious, Callinan observed that a fight had indeed begun and failed to call police. We cannot say that the jury were wrong to decide as they did.
4. Christopher’s negligence. The question of Christopher’s negligence was also for the jury. In response to special questions, the jury indicated that Christopher was negligent, but that his negligence was not “a substantial factor in causing his own death.” There is no merit to the defendants’ passing assertion, made without argument or citation to relevant authority, that the jury were, in these circumstances, required to indicate the percentage of Christopher’s negligence. That requirement would only have been triggered upon a finding that Christopher’s negligence was a proximate cause of his death.
The defendants further argue that “the evidence demonstrates
The defendants bear the burden of proving that the plaintiff’s negligence was a legal cause of his injury, and only rarely will a court rule as matter of law that a party has sustained that burden. Cf. Sweenor v. 162 State St., Inc., 361 Mass. 524, 527 (1972). “We do not think that the instant case is one of those ‘rare cases.’ ” Halley v. Hugh Nawn, Inc., 356 Mass. 28, 30 (1969). The jury were free to disbelieve Baker’s testimony that Christopher joined in the fighting only after a lull — he was the sole witness to testify that the fighting had come to a halt. The defendants’ claim does not require the conclusion that Christopher’s conduct amounted to negligence that substantially contributed to his own death.
5. Liability of management company. We have noted, see note 5, supra, that the defendant, Café Enterprises, Inc., a separate corporation, provided management services to Father’s Too. On appeal, the plaintiff’s theory of negligence with respect to this defendant is that employees of Café Enterprises, Barry Bomstein and Robert Walter, were responsible for supervising the managers of the several bars for which it provided management services, including Father’s Too, and for promulgating policies and communicating them to staff. There is no claim that policies were not promulgated. See note 6, supra. Rather, the plaintiff argues, employees of Father’s Too failed to follow its policies and Café Enterprises, through its employees Bomstein and Walters, should have been aware “that their rules regarding the admission, service, and identification of underage patrons were being ignored” on the night in question.
The problem with this argument is that there was no evidence that either Bornstein or Walter, who were not present that evening, were aware of these failures. Rather, the evidence was that the rules were followed when either was present at the tavern.
“There is no evidence in this case that the. . . managers of the tavern created or contributed to the prohibited” service of underage patrons or to the circumstances that allowed patrons to become violent. Gottlin v. Herzig, supra at 167. “Indeed, there was no evidence that either of the managers was present at the tavern the night of the accident. The plaintiff[] make[s] no argument to the contrary.” Ibid. The verdict against Café Enterprises, Inc., is without foundation in the evidence and cannot stand.
6. Punitive damages. We address the remaining claim that the evidence was insufficient to support a jury verdict that Father’s Too was grossly negligent, justifying an award of punitive damages.
Punitive damages may be assessed when death “was caused by . . . the gross negligence of the defendant.” G. L. c. 229, § 3. Under long standing Massachusetts authority, see Altman v. Aronson, 231 Mass. 588, 591-592 (1919), the classic definition of gross negligence is as follows:
“Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all*231 negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence. ... It falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure.”
See Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. at 17, quoting from Bain v. Springfield, 424 Mass. 758, 767 (1997) (punitive damages appropriate “where a defendant’s conduct warrants condemnation and deterrence”). The judge’s instructions to the jury were consistent with these principles, and we accept the conclusion of a properly instructed jury on a question within their province.
Here, the jury may have awarded punitive damages because they concluded that the tavern, through its employees, had consistently ignored its legal obligation by repeatedly admitting minors into the tavern, where their identifications would not be further checked so that once admitted, service of alcohol to them was not preventable. The jury could also have concluded that the tavern’s neglect of its legal obligation to summon police when it was clear that there would be a fight was exacerbated when Callinan demonstrated indifference to the danger to others by remaining at the door for several minutes, a passive observer as patrons fought on the sidewalk and in the street. See, e.g., Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 22 (1997) (gross negligence where the flagman in a motor dirt bike race was inattentive to the safety of the participants and merely watched a pileup long enough for three racers in addition to the original fallen racer to go over a jump). “Even where the inattention was only momentary, a jury has been allowed to find gross negligence where the inattention occurred in a place of great and immediate danger.” Ibid., quoting from Dinardi v. Herook, 328 Mass. 572, 574 (1952).
With respect to Café Enterprises, Inc., the order denying the motion for judgment notwithstanding the verdict is reversed, and judgment shall enter for Café Enterprises, Inc. In all other respects the orders and judgments are affirmed.
So ordered.
In addition to funeral and medical expenses, the jury awarded $1.5 million in compensatory damages to each of Christopher’s parents and assessed $15 million in punitive damages against Father’s Huddle Café, Inc., and $10 million in punitive damages against Café Enterprises, Inc.
The defendants argue that there was no duty of care owed to Christopher that the defendants failed to perform, and that the evidence did not establish that any negligence of the defendants was the proximate cause of Christopher’s death. Even if there was negligence, they argue that the actions of Christopher and his friend Robert McFadries in returning to the scene to fight when they might have remained uninvolved constituted a superseding cause of Christopher’s death. The defendants claim that the evidence was insufficient to establish gross negligence. Finally, they argue that on the theories advanced by the plaintiff, the evidence was insufficient as to Café Enterprises, Inc., even if sufficient to support a verdict against Father’s Huddle Café, Inc.
Father’s Huddle Café, Inc., owns a tavern at Beacon Street, Boston, which, prior to trial, it operated under the business name “Father’s Too.” The doormen, bartenders, wait staff and on-site manager are all employees of Father’s Huddle Cafe, Inc. Café Enterprises, Inc., is in the business of providing management services to restaurants, including Father’s Too. The services provided by Café Enterprises, Inc., include payroll preparation, purchase of supplies and liquor, employee training, and management oversight.
There was also evidence that the head doorman was instructed to take photographs of patrons with identification indicating an age of twenty-six or younger, and to deny entry to anyone appearing intoxicated. Although there is no legal requirement that taverns deny entiy to those under the age of twenty-one, here, because the tavern sought to limit opportunities for underage drinking, it depended on its doorman, not the bartender, to “card” its patrons.
Callinan apparently did not observe that, after leaving the tavern, Christopher and McFadries walked to where they were parked on Beacon Street on the inbound direction headed away from the tavern; that they then got in and were driving by a route that took them back in the direction of the tavern when McFadries saw Ellis and Boots standing on the comer, gesticulating and making loud noises; and that Christopher stopped the car and Mc-Fadries got out and ran toward the Ellis group.
We will discuss, infra, the basis for our conclusion that Café Enterprises, Inc., is not liable.
We see no error in the judge’s denial of the defendants’ request that the jury be specially instructed to return separate verdicts on each theory of negligence.
Another duty, to prevent harm caused by an obviously intoxicated patron to a member of the public injured away from the premises by the drunk driving of the patron, see generally Adamian v. Three Sons, Inc., 353 Mass. 498, 500 (1968), is not directly implicated here.
The duty not to serve alcohol to persons under the legislated age extends also to protect underage patrons from their own conduct. See Tobin v. Norwood Country Club, Inc., 422 Mass. 126, 136 (1996); O’Hanley v. Ninety-Nine, Inc., 12 Mass. App. Ct. 64, 67 (1981) (when alcoholic beverages are sold by a tavern keeper to a minor, the unreasonable risk of harm to the minor “may readily be recognized and foreseen” [citation omitted]).
That beer consumed by Baker may not have been sold directly to him does not relieve the tavern of its responsibility. See Tobin v. Norwood Country Club, Inc., supra at 135. Baker testified that he had had only one beer on the night in question; he also testified that during the previous two-year period he had come to the tavern two hundred times for the purpose of drinking as much as he could. The jury could have inferred that on the night in question, Baker drank more than one beer.
The jury could also have considered McFadries’s testimony that he told Callinan he thought Ellis was a “loser,” as well as Baker’s testimony that Ellis was drinking the entire time he was at the tavern; that he appeared to be intoxicated; and that, during the evening, he would leave his companions and then return to give them updates regarding his problems with “some people.” The jury could have inferred that Ellis’s intoxication would have been evident to employees of the tavern. They need not have believed Callinan’s testimony that he was unaware of the continuing animosity between the two groups until Baker confirmed that there was going to be violence.
“If... the negligent character of the third person’s intervening act or the reasonable foreseeability of its being done... is a factor in determining whether the intervening act relieves the actor from liability for his antecedent negligence, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was negligent or foreseeable, the question should be left to the jury.” Restatement (Second) of Torts § 453 comment b (1965).
See Restatement (Second) of Torts § 439 (1965): “If the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person’s innocent, tortious, or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability.” Further, “it is not necessary that [the operations of the actor and third person]... be absolutely simultaneous. It is enough that the two are in substantially simultaneous operation, as when the effect of the conduct of one or the other has ceased its active operation immediately before the other’s conduct takes active effect in harm to the other.” Restatement (Second) of Torts § 439 comment a.
The plaintiff appears to claim, without argument or citation to authority, that we should pierce the corporate veil, stating in his brief that “a holding
