50 Mass. App. Ct. 144 | Mass. App. Ct. | 2000
After consuming between ten and a dozen twelve-ounce bottles of beer in the course of a day, the plaintiff went to a local package store at approximately 7 p.m. and bought two additional bottles of beer. She was drinking them outside the store when she met an acquaintance who invited her to accompany him to the defendant’s tavern, Gus and Paul’s. She arrived at about 8 p.m., highly intoxicated, and remained there for the next three or four hours, consuming two drinks of hard liquor and five twelve-ounce beers. She was visibly drunk: she had difficulty walking, kept falling down, appeared depressed
As she began to walk home, two men in a van, Ronald Cremin and Richard Mavilia, saw her staggering down the street and offered her a ride home. She accepted, although she was later to assert in an affidavit that she would not have done so if she had not been intoxicated. The men refused to let her out of the van when they arrived near her home. Instead they drove her to a friend’s trailer, beat and raped her, and left her in the woods, nude and injured.
Westerback sued the tavern for negligence and negligent infliction of emotional distress, contending that her injuries resulted from its having served her alcohol knowing that she was intoxicated, in violation of G. L. c. 138, § 69. While awaiting trial, both parties moved for summary judgment. The defendant’s motion was allowed, and the case is before us on the plaintiff’s appeal.
The issue is whether the judge was correct in ruling that the plaintiff’s injuries were not proximately caused by the defendant’s serving her alcohol while she was intoxicated. “Generally, the act of a third person in committing an intentional tort constitutes a superseding cause of harm to another resulting therefrom, even though the actor’s conduct created a situation which afforded an opportunity to the third person to commit such a tort or a crime. However, liability will be imposed where the actor realized, or should have realized, the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit a crime.” Gidwani v. Wasserman, 373 Mass. 162, 166 (1977). “The specific kind of harm need not be foreseeable . . . provided it was foreseeable that there would be violence toward others.” Carey v. New Yorker of Worcester, Inc., 355 Mass. 450, 454 (1969).
There have been two major groups of cases in which criminal or tortious behavior has been held sufficiently foreseeable as to warrant imposing liability on purveyors of alcoholic beverages. One is where injuries result from the acts of drunken patrons on the premises, whether the drunk inflicts the injuries, as in Wood v. Ray-Al Café, Inc., 349 Mass. 766, 766 (1965); Carey v. New Yorker of Worcester, Inc., 355 Mass. at 451-452; and Sweenor v. 162 State St., Inc., 361 Mass. 524, 525-527 (1972); or is himself the injured party, as in O’Hanley v. Ninety-Nine, Inc., 12 Mass. App. Ct. 64, 68-69 (1981). The second group is where a drunken patron inflicts injuries on others by negligent driving after leaving the premises. See Adamian v. Three Sons, Inc., 353 Mass. 498, 499-501 (1968); Cimino v. Milford Keg, Inc., 385 Mass. 323, 328-334 (1982).
In contrast, we are aware of no Massachusetts appellate decision holding that a tavern owner may be found liable for an intoxicated patron’s injuries that were caused by a criminal act perpetrated off the tavern premises by individuals with no connection to the tavern. Most decisions in which proprietors have been held liable to their patrons for criminal acts of others are those in which the proprietor fails to provide reasonably needed security precautions in or just outside the premises, thus laying patrons or their property open to injury or loss. Such decisions include Morse v. Homer’s, Inc., 295 Mass. 606, 609-610 (1936)
In all of those cases, the crime that injured the patron or his property took place on or just off the premises of the proprietor found to be liable, in circumstances where the nature or condition of the premises called for security to ward off foreseeable criminal activity. Factors that have been cited as supporting a finding of foreseeability include a history of prior criminal episodes (Mullins, supra; Sharpe, supra; Fund, supra; Whittaker, supra; Magaw, supra), the unruly behavior or drunkenness of one or more persons on or just off the premises (Carey, 355 Mass. at 452-453, and cases cited; Flood, supra), a display of weapons (Flood, supra), failure to provide adequate lighting in secluded areas of the premises (Magaw, supra), or a failure to provide security, such as guards, locks, alarms, or surveil
The judge correctly allowed the defendant’s motion for summary judgment.
Judgment affirmed.
Cremin testified in a deposition that he was indicted for, and pied guilty to, aggravated rape, kidnapping, and mayhem for the attack and was sentenced to two and one-half years in prison.
These facts were alleged by the plaintiff and stipulated to by the defendant for pmposes of its summary judgment motion. The defendant asserts that, if the case were tried, it would endeavor to show that the plaintiff was not visibly drunk while in the tavern and that she left in a taxicab.
Contrast Barboza v. Decas, 311 Mass. 10, 13 (1942) (assault with intent to rape is not the natural and probable consequence of furnishing intoxicating liquor to the perpetrator).
Contrast Bellows v. Worcester Storage Co., 297 Mass. 188, 194-197 (1937) (warehouse not liable for fire started by deranged truck driver of whose mental condition the proprietor had no notice).