448 Mass. 170 | Mass. | 2007
In this summary judgment action now before us on direct appellate review, we answer the following question left open in Tobin v. Norwood Country Club, Inc., 422 Mass. 126 (1996). What is the legal responsibility of a licensed commercial
1. Background. We set forth the facts in the light most favorable to the plaintiff. At approximately 7 p.m. on May 10, 2002, the plaintiff, who was eighteen years old at the time, went to Carrabba’s Italian Grill, Inc. (Carrabba’s), a restaurant in Peabody, with a friend. He had previously worked there as a waiter and knew many of the employees. During the next two hours, the plaintiff ate dinner and drank six alcoholic beverages, which were served to him by a bartender who had known the plaintiff since high school. Because the plaintiff was friendly with the staff at Carrabba’s, he was not asked to pay for his drinks or dinner.
Around 9:30 p.m., the plaintiff left Carrabba’s and drove home. He did not recall having any difficulty walking or driving, but the plaintiff vomited after he arrived home. Nonetheless, after taking a shower, the plaintiff left his house to go to the Palace, a nightclub in Saugus, arriving around 11:30 p.m. He had previously done promotional work for the nightclub and knew many of the employees, including the bartender on duty that night, whom the plaintiff had been going to see. The plaintiff later testified at a deposition that he had been to the Palace on more than thirty prior occasions. On the first several occasions, he had presented a false identification to the bouncer to gain entry, but once he became familiar to the employees, he no longer did so. Thus, when the plaintiff entered the Palace on May 10, 2002, he greeted the bouncer and proceeded inside without showing his false identification. The plaintiff also had a plastic bracelet that the nightclub gave to customers who were
Sometime between midnight and 1 a.m., the plaintiff left the Palace and drove to a friend’s house to see whether she was home. When he did not see her car parked outside, he decided to drive home. As the plaintiff’s vehicle approached the intersection of Broadway and Elwell Street in Malden, he saw a green traffic light and accelerated to fifty-five or sixty miles per hour to get through the light before it turned red. When the plaintiff entered the intersection, his vehicle was struck by another car that had failed to stop at the red light for the opposite direction. The impact caused the plaintiff’s vehicle to spin and then roll over. The plaintiff was thrown out of the vehicle because he had failed to fasten his seat belt, and he sustained serious injuries. Tests performed when the plaintiff was admitted to a hospital indicated a blood alcohol level of .13, considerably above the allowable limit of .08, as set forth in G. L. c. 90, § 24 (1) (e). An accident reconstruction team of the State police concluded that, at the time of impact, the plaintiff had been traveling at forty-seven miles per hour, and the vehicle that hit him had been traveling at eleven miles per hour. The speed limit in the vicinity of the intersection was thirty miles per hour. The report from the State police concluded that although the plaintiff was not the cause of the accident, his excessive speed at the time of the collision may have contributed to the seriousness of his injuries.
The plaintiff commenced an action against Carrabba’s and the Palace (collectively, defendants), claiming that these two establishments were negligent in serving alcoholic beverages to him, an intoxicated underage adult, and that their negligence was a contributing cause of his injuries.
In a thorough and well-reasoned opinion examining the evolution of “dram shop liability” in the Commonwealth, a judge in the Superior Court allowed in part and denied in part the motions for summary judgment. With respect to the plaintiff’s claim that the defendants breached their duty not to serve an intoxicated person, the judge opined that G. L. c. 231, § 85T, was controlling and that the plaintiff was required to prove that these establishments had served him alcohol with wilful, wanton, or reckless disregard for whether he was intoxicated. The judge concluded, as a matter of law, that the evidence, viewed in the light most favorable to the plaintiff, fell short of meeting this demanding standard, and therefore, the defendants were entitled to summary judgment with respect to this alleged breach of duty. We agree with the judge’s analysis.
With respect to the plaintiff’s claim that the defendants breached their duty not to serve an underage adult, the judge opined that G. L. c. 231, § 85T, was not applicable and that the plaintiff could prevail if he proved that these establishments served him alcohol when they knew, or reasonably should have known, that he was under twenty-one years of age and, therefore, under the legal age for drinking alcoholic beverages. Viewing the evidence in the light most favorable to the plaintiff, the judge concluded that there was a genuine issue of material fact as to the defendants’ knowledge, and therefore, the defendants were not entitled to summary judgment with respect to this alleged breach of duty.
2. Standard of review. We begin with the familiar principle that the standard of review on summary judgment “is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Mass. R. Civ. R 56 (c), as amended, 436 Mass. 1404 (2002). All evidentiary inferences must be resolved in favor of the plaintiff. See Simplex Techs., Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197 (1999). Summary judgment is seldom granted in a cause of action alleging reckless or negligent conduct, but this is not an absolute rule. See Manning v. Nobile, 411 Mass. 382, 388 (1991).
3. Liability of licensed commercial establishment. In Tobin v. Norwood Country Club, Inc., 422 Mass. 126, 127-129 (1996), a seventeen year old girl who was a guest at a family reunion at the Norwood Country Club consumed many alcoholic beverages at the party, had an argument with her date, left the premises on foot, and was killed when she was struck by a car on the highway where she had been walking. In the civil action brought by the decedent’s parents, the Norwood Country Club argued that “no duty had been triggered by its provision of alcohol to the deceased on the night of her death.” Id. at 132. This court disagreed, concluding that the Norwood Country Club, a commercial establishment licensed to serve alcoholic beverages to the general public, “owed the deceased minor a duty of care to refrain from making alcohol available to her, an act that unreasonably increased the risk of harm to her.” Id. at 135.
The Legislature has consistently recognized the dangers of furnishing alcohol to young adults who have not reached the legal drinking age of twenty-one years. See, e.g., G. L. c. 138, § 12 (duly licensed common victualler not authorized to sell alcoholic beverages to patrons under twenty-one years of age); G. L. c. 138, § 34 (penalties shall be imposed for delivery of alcoholic beverages to patrons of licensed establishments who are under twenty-one years of age); G. L. c. 138, § 34A (persons under twenty-one years of age who attempt to purchase alcohol by misrepresenting their age shall be fined $300); G. L. c. 138, § 34B (persons who have reached age of twenty-one years may apply for liquor purchase identification card); G. L. c. 138, § 34C (persons between ages of eighteen and twenty-one years shall be fined for knowingly possessing, transporting, or carrying alcoholic beverages on their persons, except in course of
In light of these clear legislative concerns, we conclude that the duty of care that was owed to the deceased minor in the Tobin case should apply with equal force when the person to whom the alcohol is served is between the ages of eighteen and twenty-one years. In each instance, the person is under the legal drinking age, as clearly and plainly established by the Legislature. The statutory provision regulating the serving of liquor, G. L. c. 138, § 34, forbids the serving of alcoholic beverages to anyone under the age of twenty-one years because “they 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.” Tobin v. Norwood Country Club, Inc., supra at 136. See Michnik-Zilberman v. Gordon’s Liquor, Inc., 390 Mass. 6, 10 (1983). If the Legislature had deemed these concerns less significant for individuals between the ages of eighteen and twenty-one years, then it could have lowered the legal drinking age.
We recognize that the Legislature has conferred significant rights on young adults who are between the ages of eighteen and twenty-one years. In Hamilton v. Ganias, 417 Mass. 666, 667-668 (1994), this court considered the duty owed by a social host to a nineteen year old guest who injured himself in a motor vehicle accident after becoming intoxicated at the social host’s party. We concluded that a social host owes no duty to an adult, but underage, drinker who becomes intoxicated by the voluntary consumption of alcohol and subsequently injures himself.
Notwithstanding the breadth and importance of these particular responsibilities, the Legislature has still concluded that adults between the ages of eighteen and twenty-one years, like minors, do not yet have the maturity and judgment to drink alcohol responsibly. The fact that the legal drinking age in this Commonwealth remains at twenty-one years is a clear indication that the consumption of alcohol is a right that is to be
Because the plaintiff here was under the legal drinking age, he need only establish that the actions of the defendants were negligent. In other words, the plaintiff must present evidence to show that those establishments served him alcoholic beverages knowing, or having reason to know, that he was under twenty-one years of age and, as a consequence, he was injured. See Tobin v. Norwood Country Club, Inc., supra at 141 (“Negligence is based ... on reasonable foreseeability of harm, the availability of reasonable measures to avoid that harm, and the failure to take those measures”). “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.” Christopher v. Father’s Huddle Café, Inc., 57 Mass. App. Ct. 217, 223 (2003). A breach of such duty occurs “when the establishment knew or reasonably should have known that it was furnishing alcohol to [a person under the age of twenty-one years].” Tobin v. Norwood Country Club, Inc., supra at 135. Here, we conclude that the plaintiff has marshaled sufficient facts to withstand the defendants’ motions for summary judgment on his claim that they breached their duty not to serve alcoholic beverages to an underage adult.
4. Conclusion. The order of the Superior Court granting in
So ordered.
Pursuant to G. L. c. 4, § 7, Fiftieth, an “adult” is defined as “any person who has attained the age of eighteen.” A “[m]inor” is defined as “any person under eighteen years of age.” G. L. c. 4, § 7, Forty-eighth. The legal drinking age in Massachusetts is twenty-one years. See G. L. c. 138, § 34.
Count I of the plaintiff’s amended complaint set forth a claim for negligence, and Count II was predicated on strict statutory liability for the defendants’ alleged violation of G. L. c. 138, § 34.
General Laws c. 231, § 85T, provides: “In any action for personal injuries . . . caused by or arising out of the negligent serving of alcohol to an intoxicated person by a licensee ... no such intoxicated person who causes injuries to himself, may maintain an action against the said licensee ... in the absence of wilful, wanton, or reckless conduct on the part of the licensee
In 1973, the legal drinking age was lowered from twenty-one to eighteen years. See St. 1973, c. 241. However, in 1979, the legal drinking age was raised to twenty years, see St. 1979, c. 15, § 2, and, in 1984, it was raised again to twenty-one years. See St. 1984, c. 312, §§ 1-3.
After Hamilton v. Ganias, 417 Mass. 666 (1994), was decided, the Legislature revised G. L. c. 138, § 34, to make it a crime for anyone, includ
7At the time of our decision in Hamilton v. Ganias, supra, G. L. c. 140, § 131 (license to carry firearm), permitted persons eighteen years of age and older to carry a firearm. In 1998, the statute was amended to increase the age from eighteen to twenty-one years. See St. 1998, c. 180, § 41. See also Commonwealth v. Barros, 435 Mass. 171, 179 n.l (2001) (Sosman, J., concurring).
In Tobin v. Norwood Country Club, Inc., 422 Mass. 126, 133 n.6 (1996), this court pointed out that “[t]he circumstances surrounding social host liability, as explained in McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 157-158 (1986), are different from the considerations we take into account in the case of a commercial establishment. Thus, our holding . . . does not disturb any aspect of our law of social host liability.” The same is true here.
On remand, the judge or jury may consider the question whether the plaintiff was comparatively negligent in causing his own injuries such that any liability on the part of the defendants should be correspondingly reduced. See G. L. c. 231, § 85; Tobin v. Norwood Country Club, Inc., supra at 138.