O'Hanley v. Ninety-Nine, Inc., NINETY-NIN

• Decision Date: 12 June 1981
• Docket Number: INC,NINETY-NIN
• Citation: 12 Mass.App.Ct. 64,421 N.E.2d 1217
• Parties: Marshall F. O'HANLEY v.
• Court: Appeals Court of Massachusetts

Page 1217

421 N.E.2d 1217

12 Mass.App.Ct. 64

Marshall F. O'HANLEY v. NINETY-NINE, INC.

Appeals Court of Massachusetts, Middlesex.

Argued May 12, 1981.

Decided June 12, 1981.

Irving H. Sheff, Boston (Samuel E. Greydanus, III, Boston, with him), for plaintiff.

William L. O'Brien, Boston, for defendant.

Before HALE, C. J., and GRANT and SMITH, JJ.

GRANT, Justice.

This is an action by which the plaintiff seeks to recover damages for the personal injuries sustained by him when he fell off the bar in one of the defendant's restaurants. After the parties had answered each other's written interrogatories, the defendant moved for summary judgment under Mass.R.Civ.P. 56(b), 365 Mass. 824 (1974). The plaintiff responded with affidavits of himself and several persons who had been his drinking companions during the events in question. After hearing, a judge of the Superior Court allowed the defendant's motion and entered judgment dismissing the action. The plaintiff appealed.

The following undisputed facts appear from the answers to interrogatories and the affidavits. Around noontime on Sunday, May 15, 1977, the plaintiff, age twenty-five, entered the defendant's establishment in Rockland at which it was licensed (under G.L. c. 138) to sell alcoholic beverages to be drunk on the premises. After having something to eat, the plaintiff started drinking with some of his friends. He purchased and consumed numerous drinks which were served him by one or the other (possibly both) of the two experienced bartenders who were then on duty. At some point the plaintiff became intoxicated, but (according to the affidavits) the bartender(s) continued to serve him and to receive payment and tips. By approximately 10:30 P.M. the plaintiff had been served and had consumed at least fifteen Heineken beers and six martinis. He advised one of the bartenders that he intended to dance on the bar. "He acknowledged me and walked away. I stepped up on the chair beside me and then onto the bar where I stood up and then fell sideways landing directly on my right leg and knee." In response to an interrogatory which inquired as to the cause of the fall, the plaintiff asserted that "(t)he cause of my accident was that I was intoxicated."

1. It is obvious from the allegations of the plaintiff's amended complaint, from his answers to interrogatories, and from his affidavits that he is attempting to proceed at common law on the theory that his injuries resulted from the negligence of the defendant in continuing to serve him drinks after he had become intoxicated, with a violation of G.L. c. 138, § 69, ¹ constituting evidence of such negligence. See and compare Three Sons, Inc. v. Phoenix Ins. Co., 357 Mass. 271, 275, 257 N.E.2d 774 (1970); Wiska v. St. Stanislaus Social Club, Inc., 7 Mass.App. 813, 816, 390 N.E.2d 1133 (1979). See also Wood v. Ray-Al Cafe, Inc., 349 Mass. 766, 208 N.E.2d 225 (1965); Adamian v. Three Sons, Inc., 353 Mass. 498, 499, 233 N.E.2d 18 (1968); Carey v. New Yorker of Worcester, Inc., 355 Mass. 450, 453, 245 N.E.2d 420 (1969). There is no case in which either of our appellate courts has held that § 69 was intended to protect the consumer of intoxicants, as well as third persons who may be injured by the consumer, and the intention of the Legislature in enacting that statute is the principal question which has been argued before us. We have no doubt as to how that question is to be answered.

In the Adamian case the Supreme Judicial Court had the following to say: "The statute ... was undoubtedly enacted with a purpose to safeguard, not only the intoxicated person himself, but members of the general public as well. The legislative policy, being clear, is not to be rendered futile of practical accomplishment because of the repeal at the end of the prohibition era of the Dram Shop Act which gave an express right of action to persons suffering damage due to a violation of the act .... Nor is the statute to be nullified by an inflexible adherence to the theory that the drinker alone is responsible, regardless of how intoxicated he may be when a bartender repeatedly serves him " (emphasis supplied). 353 Mass. at 500, 233 N.E.2d 18. The court then went on to express its full agreement with the unanimous opinion in Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959), in which the Supreme Court of New Jersey said, "when alcoholic beverages are sold by a tavern keeper, to a minor or to an intoxicated person, the unreasonable risk of harm not only to the minor or the intoxicated person but also to members of the traveling public may readily be recognized and foreseen ..." (emphasis supplied). 31 N.J. at 202, 156 A.2d 1. In Carey v. New Yorker of Worcester, Inc., 355 Mass. at 453-454, 245 N.E.2d 420, the Supreme Judicial Court overruled the defendant's exception to so much of the charge to the jury ² as instructed them that one of the purposes of G.L. c. 138, § 69, is "the protection of the ... intoxicated person."

The New Jersey court has moved on to an express holding that a tavern keeper who violates a regulation against selling alcoholic beverages to anyone actually or apparently intoxicated may be held civilly accountable for injuries which proximately result to the intoxicated person. Soronen v. Olde Milford Inn, Inc., 46 N.J. 582, 584-589, 592, 218 A.2d 630 (1966). A like conclusion was reached in Ramsey v. Anctil, 106 N.H. 375, 376, 211 A.2d 900 (1965). Many of the cases from other jurisdictions which have come to a different conclusion (see, e. g., Nelson v. Steffens, 170 Conn. 356, 358-361, 365 A.2d 1174 (1976)) rest on the proposition, unceremoniously rejected in the Adamian case, that there can be no liability on the negligent server of alcoholic beverages in the absence of an express provision for such liability found in a dram shop or civil damage act. ³ We conclude that G.L. c. 138 § 69, was intended to safeguard a person such as the plaintiff in the case before us.

2. In addition to concluding that the plaintiff was not within the intended protection of § 69, the judge appears to have attached importance to what he characterized as the plaintiff's "concession" that the "cause" of his accident was that he was intoxicated. It seems likely (although we cannot be certain) that the judge was influenced to a belief that the plaintiff's intoxication was the sole, or at least the proximate, cause of his injury, to the exclusion of the possibility that the cause of the injury may have been the defendant's continuing to serve the plaintiff after he had become intoxicated. If the judge so concluded, we think he overlooked the principle that "inferences to be drawn from the facts contained in the pleadings ... and other materials must be drawn against the movant and in favor of the party opposing" a motion for summary judgment. Community Natl. Bank v. Dawes, 369 Mass. 550, 559 n.8, 340 N.E.2d 877 (1976). We think it not unlikely that the judge may also have overlooked the principle enunciated in the Adamian case that § 69 is "(not) ... to be nullified by an inflexible adherence to the theory that the drinker alone is responsible, regardless of how intoxicated he may be when a bartender repeatedly serves him" (353 Mass. at 500, 233 N.E.2d 18). We are of the opinion that the question of the proximate cause of the plaintiff's injury is one for the jury. See Adamian v. Three Sons, Inc., 353 Mass. at 500, 233 N.E.2d 18; Carey v. New Yorker of Worcester, Inc., 355 Mass. at 453, 245 N.E.2d 420; Sweenor v. 162 State St., Inc., 361 Mass. 524, 527, 281 N.E.2d 280 (1972) ("(S)erving liquor to one already drunk may well ... enhance the possibility of irrational acts. It is equally true that liquor impairs the individual's sense of balance."); Smith v. Clark, 411 Pa. 142, 144-146, 190 A.2d 441 (1963). Contrast Barboza v. Decas, 311 Mass. 10, 12-13, 40 N.E.2d 10 (1942); Dimond v. Sacilotto, 353 Mass. 501, 502-503, 233 N.E.2d 20 (1968); Wiska v. St. Stanislaus Social Club, Inc., 7 Mass.App. at 817, 390 N.E.2d 1133. We regard the so-called concession as nothing more than evidence of negligence on the plaintiff's part (see ...