Carey v. New Yorker of Worcester, Inc.

• Decision Date: 07 March 1969
• Citation: 245 N.E.2d 420,355 Mass. 450
• Parties: Ernest CAREY v. NEW YORKER OF WORCESTER, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 420

245 N.E.2d 420

355 Mass. 450

Ernest CAREY v. NEW YORKER OF WORCESTER, INC.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Feb. 7, 1969.

Decided March 7, 1969.

Stanley B. Milton, Worcester, for defendant.

Terence F. Riley, Belmont, for plaintiff.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, KIRK, and REARDON, JJ.

WILKINS, Chief Justice.

The plaintiff, a patron in the defendant's bar and restaurant, was shot by another patron on December 20, 1964. In this action of tort, of which only count 1 for negligence remains, there was a verdict for the plaintiff. The defendant argues exceptions to the denial of its motion for a directed verdict, to the admission of evidence, and to the charge.

1. The testimony warranted the jury's verdict. The premises were divided by a partition running their length. The dining room was about twenty-five to thirty feet wide and about thirty-five to forty feet long. There were booths on both sides with 'just an aisle to walk in' between.

It was about 11:30 P.M. when the plaintiff entered with a party of three or four and sat at a booth on the left. At that time the assailant, one Martel, was seated in a group of four at another booth across the aisle twelve to fifteen feet distant. '(T)here were quite a few people there; awfully noisy.' The Martel group was 'making a lot of noise * * *; they were kind of talking loud and getting up and jumping around.' They could be heard from the bar. After ten or fifteen minutes the plaintiff arose and went toward the men's room in the rear of the premises. When he reached a point about two feet from Martel, the latter stood up, pulled a gun, and without warning shot the plaintiff in the side.

Martel was '(a)bsolutely drunk,' and for some time had been staggering up and down the aisle going back and forth to the entrance to the bar, and yelling toward someone at the bar or for the waitress. He was loud and very noisy, 'just a fresh kid.' On two previous occasions he had been made to leave the premises by the police, and had twice been refused service. He was known to be a troublemaker by the defendant's employees. He looked young and was under age. On this occasion his group of four was served two rounds of whiskey and beer by the waitress. Of this he drank whiskey. He had been drinking elsewhere before he arrived at the defendant's premises. The two employees present, a man in the bar and the waitress, were too busy to observe all that occurred. This was Sunday night, and police protection was hired only on Friday and Saturday nights.

The defendant, as the operator of a restaurant and bar, was in possession of real estate open to the public for business purposes. It owed a duty to a paying patron to use reasonable care to prevent injury to him by third persons whether their acts were accidental, negligent, or intentional. Restatement 2d: Torts, § 344. Rawson v. Massachusetts Operating Co. Inc., 328 Mass. 558, 105 N.E.2d 220, 29 A.L.R.2d 907; Greco v. Sumner Tavern, Inc., 333 Mass. 144, 128 N.E.2d 788. It was open to the jury to find that the defendant's employees had general knowledge of Martel's previous experience as a patron and should have realized on the occasion here considered the need for repressing him. The jury could have found that the defendant's agents should have tried to stop his drunken staggerings the length of the aisle, and if they did not attempt completely to remove him from the scene, at least should have provided some safeguard for the defendant's patrons. The defendant is in error in claiming that there were no warnings of trouble. There had been commotion and boisterous behavior and continued drinking. That there had been no express threat to any patron is not conclusive. The jury in their judgment could find that the defendant's agents should have realized that there was real danger to others. Nor was it fatal to the plaintiff's case that the method of assault was not precisely foreseeable. Ryder v. Robinson, 329 Mass. 285, 287, 107 N.E.2d 803. Shooting, the defendant contends, was beyond the realm of reasonable expectation, and cites Addison v. Green Cafe, Inc., 323 Mass. 620, 622--623, 84 N.E.2d 33. In that case, which is distinguishable, there was a shooting in a room full of people by one who was not a party to a harmless scuffle. This was held to be a superseding cause. See Restatement 2d: Torts, § 447, comment g. In the case at bar Martel was an active participant in a steady disorder.

This case falls within the authority of McFadden v. Bancroft Hotel Corp., 313 Mass. 56, 46 N.E.2d 573; Quigley v. Wilson Line of Massachusetts, Inc., 338 Mass. 125, 154 N.E.2d 77, 77 A.L.R.2d 499, and Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 171 N.E.2d 287.

Serving hard liquor, particularly to one already drunk, has a consequence which is not open to successful dispute. Such action may well make the individual...