Christopher v. Father's Huddle Cafe, Inc.

• Citation: 782 N.E.2d 517,57 Mass. App. Ct. 217
• Decision Date: 28 January 2003
• Docket Number: No. 00-P-482.,00-P-482.
• Parties: Gary T. CHRISTOPHER<SMALL><SUP>1</SUP></SMALL> v. FATHER'S HUDDLE CAFE, INC., & another.<SMALL><SUP>2</SUP></SMALL>
• Court: Appeals Court of Massachusetts

Page 517

782 N.E.2d 517

57 Mass. App. Ct. 217

Gary T. CHRISTOPHER¹ v. FATHER'S HUDDLE CAFE, INC., & another.²

No. 00-P-482.

Appeals Court of Massachusetts, Suffolk.

Argued March 22, 2002.

Decided January 28, 2003.

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Carolyn M. Conway, Boston, for the defendants.

Marianne C. LeBlanc, Boston (Benjamin R. Zimmermann with her) for the plaintiff.

Present: DUFFLY, KASS, & TRAINOR, JJ.

DUFFLY, J.

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, 605 N.E.2d 309 (1992). Upon general verdicts, the jury found Father's Huddle Café, Inc and Café Enterprises, Inc., negligent and grossly negligent.³

The trial judge denied the defendants' motions for directed verdicts made at the close of the plaintiffs case and renewed after the defendants rested; denied a request that the jury be specially instructed to return separate verdicts on each of the plaintiffs 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.⁴

2. Facts. "[I]n reviewing the denial of the defendant[s'] motions 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, 431 N.E.2d 920 (1982). See Dartt v. Browning-Ferris Indus., Inc., 427 Mass. 1, 16, 691 N.E.2d 526 (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. 1, 453 N.E.2d 430 (1983); McCartin v. Westlake, 36 Mass.App.Ct. 221, 224, 630 N.E.2d 283 (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 Callinan, head doorman at Father's Too⁵ a on the evening of September 8, 1992, was responsible for checking identification of all persons seeking entry to the tavern to make sure that no one was admitted who was under the age of twenty-one, the legal age for drinking alcohol, and for exerting control and preventing or stopping fights involving patrons.⁶ Thomas Christopher and his friend, Robert McFadries, then both twenty-three years old, arrived at the tavern at approximately 8:30 P.M. to drink beer and watch a ball game on television. Throughout the evening they sat near Callinan, who stood inside the door. While at the tavern, they ate hot dogs and drank a couple of pitchers of beer between them. At approximately 10:00 P.M., a group arrived that included Kevin Baker and Matthew Lombard, both eighteen years old. They knew that, despite their ages, they could get in and drink alcohol. Baker, often accompanied by Lombard, had been a regular patron since he was sixteen and had, since that date, been admitted to the tavern two hundred times. Each carried only an authentic driver's license, which he showed to the doorman when requested, and neither was ever denied entry in spite of the fact that the license identified him as under the age of twenty-one. On the night in question they displayed their licenses to Callinan — who knew Baker as a patron — and were admitted, as expected, along with David Ellis, who was twenty-six, and one or two others also not underage. All of them consumed alcohol while at the tavern.

McFadries knew Ellis, a former high school classmate. The doorman, Callinan, observed unpleasant looks pass between and McFadries and overheard them exchange words; he was told by McFadries that he had had a fight with Ellis in high school. Forty-five minutes later, when Callinan saw Ellis and a companion (known as "Boots") get up quickly to follow Christopher and McFadries out the door, he knew that something was going on and suspected a fight was brewing. Moments later, as Baker and Lombard also prepared to leave, Callinan stopped them to ask if there was going to be a fight. Baker confirmed that they "were going out to rough someone up."

When Baker and Lombard exited the tavern, they observed Ellis and Boots at the corner of Beacon and Mountfort Streets, some fifty yards away; the Ellis group then started shouting. A car, which had made a U-turn and was then headed in the direction of the tavern, stopped near Ellis.⁷ McFadries got out of the car and ran to where Ellis stood on the sidewalk. Fighting commenced and Baker and Lombard went to join them; they began to beat McFadries with brass knuckles.

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 corner 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, and returned to his car to retrieve a hockey stick, which he then brandished — as he yelled at the group to back off and get away from McFadries. Callinan continued watching — at one point hopping up on a low wall to get a better look — and could see as Baker and Lombard turned their attentions from McFadries to Christopher and began punching, then kicking him. They flanked Christopher and Lombard moved behind him and grabbed the hockey stick; Christopher was knocked to the ground. He got up and was chased by Baker and Lombard across the outbound lane of Beacon Street and onto the median strip; at some point Ellis was also involved in chasing after Christopher, who ran in a zig-zag fashion into the inbound lane of Beacon Street, then back in the direction of the tavern and into the outbound lane of traffic where he was struck by a moving vehicle. He died as a result of his injuries.

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, 185 N.E.2d 751 (1962); Tobin v. Norwood Country Club, Inc., 422 Mass. 126, 141, 661 N.E.2d 627 (1996). We proceed to discuss the basis for our conclusion that the evidence supported findings of negligence on the part of the tavern,⁸ and that the judgment entered against Father's Huddle Café, Inc. (Father's Too), on the basis of the jury verdicts should be affirmed.⁹

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 where patrons suffer injury on the premises as the result of acts of other patrons, see Westerback v. Harold F. LeClair Co., 50 Mass. App.Ct. 144, 146-147, 735 N.E.2d 1256 (2000) (citing cases), or where the intoxication of a patron pedestrian leads to that patron's death away from the premises where alcohol was served. See Tobin v. Norwood Country Club, Inc., 422 Mass. at 129, 135, 661 N.E.2d 627.¹⁰

The tavern also had a duty not to serve alcohol to minors. See Tobin v. Norwood Country Club, Inc., 422 Mass. at 136, 661 N.E.2d 627 (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.¹¹ Where a commercial establishment sells alcohol to an underage drinker, we do not hesitate to impose a duty of care flowing to the public. See Tobin v. Norwood Country Club, Inc., supra at 133, 661 N.E.2d 627; Michnik-Zilberman v. Gordon's Liquor, Inc., 390 Mass. at 7, 10, 453 N.E.2d 430 ("It is the rule of this Commonwealth that negligence on the part of a seller or supplier of alcoholic beverages may be shown by a sale or the furnishing of those beverages to a minor, as well as to an inebriated person, as each is proscribed by statute").

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...