Cimino v. Milford Keg, Inc.

• Decision Date: 23 February 1982
• Parties: Joseph A. CIMINO, individually and as administrator, 1 v. The MILFORD KEG, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 920

431 N.E.2d 920

385 Mass. 323

Joseph A. CIMINO, individually and as administrator,¹ v. The MILFORD KEG, INC.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Oct. 8, 1981.

Decided Feb. 23, 1982.

Edward J. Shagory, Boston (George J. Shagory, Boston, with him), for defendant.

Alfred B. Cenedella, III, Milford (Dennis M. Sullivan, Milford, with him), for plaintiff.

Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

On January 19, 1976, one Richard L. Mott, while operating his motor vehicle, caused the death of the plaintiff's son, John Cimino. Mott allegedly became greatly intoxicated while a patron of the defendant tavern, The Milford Keg, Inc. The plaintiff, Joseph A. Cimino, individually and in his capacity as administrator of the estate of his deceased son, John Cimino, brought this action against the defendant tavern. ²

The complaint was originally brought in the Third District Court of Southern Worcester on August 24, 1976, and alleged two counts against the defendant, one for wrongful death of the son and the other for the decedent's conscious pain and suffering. The action was removed to the Superior Court on the defendant's motion on September 21, 1976. The plaintiff's motion to amend his complaint adding a count for negligent infliction of emotional distress on the plaintiff was allowed on April 3, 1979. The case was tried to a jury from July 8, 1980, to July 11, 1980. The jury found for the plaintiff on all three counts. The defendant filed timely motions for directed verdict, to dismiss, for judgment notwithstanding the verdict or for a new trial, all of which were denied. The defendant now appeals.

The defendant argues that it was error to deny these motions because there was insufficient evidence to support a verdict that the defendant violated any duty it owed to the plaintiff, or that any such breach proximately caused the plaintiff's and decedent's injuries. The defendant also argues that the plaintiff should not have been permitted to recover on the count alleging negligent infliction of emotional distress. We affirm.

Evidence was introduced from which the jury could have found that the only entrance to The Milford Keg is through a municipal parking lot. A majority of the defendant's customers were observed during a thirty-day period arriving and leaving by automobile, and the defendant solicited business by advertisements in a newspaper which was circulated in Milford and the surrounding towns. The owner of The Milford Keg acknowledged that he had customers who would arrive and leave by automobile.

Mott went to The Milford Keg on January 19, 1976, and was served six or more "White Russians" (an intoxicating beverage containing vodka and coffee-brandy liqueur), between 1 P.M. and 6 P.M. While there Mott played pool and became drunk, loud, and vulgar. Mott had been ejected from The Milford Keg in July or August, 1975, for loud, boisterous, and drunken behavior. On the date of the fatal accident he did not remember at what time he had his last drink there, when he left, or how he got to his next destination, the Blue Moon Saloon. Mott arrived at the Blue Moon Saloon by automobile between 6:30 P.M. and 7 P.M., totally drunk and carrying a "White Russian." Mott was drunk and obnoxious at the Blue Moon Saloon. He stayed for approximately fifteen minutes and was not served a drink by anyone at the Blue Moon Saloon.

Mott was next seen between 7 P.M. and 7:15 P.M., driving a car on East Main Street in Milford. Mott swerved over the center line, went onto a sidewalk, and struck John Cimino. He then struck a telephone pole and drove away. He was arrested by the police shortly thereafter. John Cimino, age nine, was severely injured and died later that day. The plaintiff, who was walking beside his son, was "knocked" into adjacent hedges. He got up, went to his injured son, and then crossed the street to obtain assistance. Mott was subsequently charged with manslaughter, operating negligently so as to endanger the public, operating under the influence of intoxicating liquor, and leaving the scene of an accident after causing personal injuries and property damage, to which crimes he pleaded guilty.

The plaintiff suffered a number of bruises as a result of the accident. The accident and his son's death also affected the plaintiff and his relations with his family. He subsequently suffered pains in his chest and stomach, diminished appetite, and difficulty in sleeping. He became generally depressed and introspective.

1. Duty of tavern not to serve intoxicated patron. The defendant argues that it owes a duty to travelers only to refuse to serve patrons who are visibly or obviously intoxicated, and that insufficient evidence was introduced at trial to warrant submission of that issue (as well as the question of proximate causation, discussed below) to the jury. It is axiomatic that, in reviewing the denial of the defendant's motions for directed verdict and judgment notwithstanding the verdict, we will construe the evidence most favorable to the plaintiff and disregard that favorable to the defendant. ³ See H. P. Hood & Sons v. Ford Motor Co., 370 Mass. 69, 71, 345 N.E.2d 683 (1976); D'Annolfo v. Stoneham Hous. Auth., 375 Mass. 650, 657, 378 N.E.2d 971 (1978).

In Adamian v. Three Sons, Inc., 353 Mass. 498, 233 N.E.2d 18 (1968), an issue similar to that argued by the defendant was raised. Adamian, however, came before this court on appeal from the sustaining of a demurrer by the trial judge. While Adamian accordingly did not specifically address the question of whether the tavern's duty arises only when the patron becomes "visibly" intoxicated, it is instructive that the complaint upheld there alleged that the patron became "greatly intoxicated" while at the defendant tavern. Id. at 499, 233 N.E.2d 18. Adamian also held that violation of G.L. c. 138, § 69, which prohibits the sale of alcoholic beverages to an intoxicated person, is "some evidence" of the defendant's negligence. ⁴ Id. The defendant's liability in such a situation, however, is grounded on the common law doctrine of negligence and is not directly imposed by the statute. Three Sons, Inc. v. Phoenix Ins. Co., 357 Mass. 271, 275, 257 N.E.2d 774 (1970).

We agree that a tavern keeper does not owe a duty to refuse to serve liquor to an intoxicated patron unless the tavern keeper knows or reasonably should have known that the patron is intoxicated. We also agree with the defendant's claim that a plaintiff must introduce evidence at trial that the defendant violated the statute before Adamian's "some evidence" rule comes into effect. ⁵

The requirement that the plaintiff introduce some evidence showing the defendant was on notice that it was serving alcoholic beverages to an intoxicated patron has been accepted in other jurisdictions that have considered the matter. See, e.g., Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151 (1971); Gonzales v. United States, 589 F.2d 465, 469 (9th Cir. 1979) (California law); Paula v. Gagnon, 81 Cal.App.3d 680, 146 Cal.Rptr. 702 (1978); Ono v. Applegate, 612 P.2d 533 (Hawaii 1980); Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959); Campbell v. Carpenter, 279 Or. 237, 566 P.2d 893 (1977); Mitchell v. Ketner, 54 Tenn.App. 656, 393 S.W.2d 755 (1964). See 1 J.A. Dooley, Modern Tort Law § 3.12, at 33 (1977) ("trend in the law of a vendor's liability for overserving alcoholic beverages" (emphasis supplied) ). See also Annot., 97 A.L.R.3d 528 (1980).

The plaintiff, however, introduced sufficient evidence from which the jury could infer that Mott was visibly intoxicated when he was served. Mott's loud and vulgar conduct and the defendant's service to Mott of a large number of strong alcoholic drinks was each sufficient to put the defendant on notice that it was serving a man who could potentially endanger others. There was no error on this ground.

2. Proximate causation of plaintiff's and decedent's injuries. The defendant argues next that it violated no duty to persons injured by the drunken driving of its patrons in the absence of evidence that it knew or should have known that the patron arrived, or would leave, by automobile. This contention requires us to focus upon the continuing vitality of our brief opinion in Dimond v. Sacilotto, 353 Mass. 501, 233 N.E.2d 20 (1968), decided the same day as Adamian. In Dimond, we affirmed a directed verdict for the defendant. We held that a sale of beer to minors who " 'felt the alcohol' ... would not, without more, satisfy the burden upon the plaintiffs to prove proximate cause," ⁶ and distinguished Adamian on the lack of evidence in Dimond that the defendant knew or should have known the patron was using an automobile. Dimond, supra at 502-503, 233 N.E.2d 20. ⁷

Here a jury instruction was given that the plaintiff bore the burden of proving that the defendant knew or should have known that Mott was driving an automobile on the day of the accident. The jury answered "Yes" to special questions asking if the defendant had solicited the motoring public and if the defendant should have known Mott was using an automobile. These findings were amply supported by the plaintiff's evidence, and the verdict here would stand even under Dimond. However, to the extent the holding in Dimond implies a necessity that a plaintiff must prove that the defendant knew or should have known that a particular intoxicated patron would use a motor vehicle, we decline to follow it.

Dimond's apparent requirement of scienter has been aptly criticized as weakening the liability of establishments that serve liquor on their premises "precisely where the social interest is strongest-the area of driving under the influence of alcohol." Comment, 48 B.U.L.Rev. 502, 512 (1968). We see no reason why the recovery by those injured by that driving should turn on such fortuities as the ability of such injured...