Hopping v. Whirlaway, Inc.

• Decision Date: 29 July 1994
• Docket Number: No. 92-P-1551,92-P-1551
• Citation: 637 N.E.2d 866,37 Mass.App.Ct. 121
• Parties: David HOPPING & others 1 v. WHIRLAWAY, INC., & another. 2
• Court: Appeals Court of Massachusetts

Page 866

637 N.E.2d 866

37 Mass.App.Ct. 121

David HOPPING & others ¹ v. WHIRLAWAY, INC., & another. ²

No. 92-P-1551.

Appeals Court of Massachusetts Essex.

Argued Jan. 10, 1994.

Decided July 29, 1994.

Stephen M.A. Woodworth, South Easton (Peter E. Heppner with him), for Whirlaway, Inc.

Theresa A. Bisenius, Revere, for David Hopping & another.

Michael Paris, Boston, for Janice Loffredo.

Before KASS, PORADA and GREENBERG, JJ.

KASS, Justice.

About an hour after the time (9:13 P.M., on July 17, 1988) that an automobile driven by Kevin Regan collided head-on with that of the plaintiffs, Regan registered a blood alcohol concentration of .19 or .20, well over the threshold of disabling intoxication. Regan, who died later that night of the injuries he suffered in the collision, had, during the preceding afternoon and evening, engaged in protracted ingestion of alcoholic beverages (variously root beer schnapps and beer or beer alone) at three venues: the Whirlaway lounge and Henry J's, both taverns, and alongside the swimming pool of a friend. David Hopping, who was driving the other vehicle, and Susan Hopping (his wife), and Janice Loffredo, who were passengers in that car, brought an action for damages against the proprietors of the two bars, Whirlaway, Inc., and Henry J's, Inc., founded on their negligent service of alcoholic drinks to someone they knew, or should have known, was intoxicated. There is no controversy that Regan's driving in the wrong lane caused the accident.

After denials of timely motions for directed verdicts, the jury returned verdicts on special questions against Whirlaway, Inc., in favor of David Hopping, Susan Hopping and Loffredo of $587,000, $25,000, and $200,000, respectively. As to Henry J's, the jury returned a finding that Henry J's had not been negligent. Thereafter, Whirlaway moved for judgment notwithstanding the verdict and for a new trial. Those motions were also denied, actions from which Whirlaway has appealed, as well as from the ensuing judgments.

We conclude, reading the evidence in a view most favorable to the plaintiffs, without weighing the evidence or assessing the credibility of witnesses, ³ that Whirlaway was not entitled to judgment notwithstanding the verdict. We do not think, however, that the verdicts for the defendant Henry J's but against the defendant Whirlaway add up, and we are persuaded that there needs to be a new trial.

For purposes of analysis, it is useful to summarize the facts in light of the standards referred to in the preceding paragraph for acting on a motion for judgment notwithstanding the verdict. During the afternoon and evening of July 17, 1988 (starting around 3:30 P.M., and finishing between 5:45 and 6:20 P.M.), Regan had gathered with friends to drink at the Whirlaway. ⁴ One of those drinking friends, Robert Caston, described Regan after a third round of drinks but before the fourth round--so Caston's testimony could have been understood--as "look[ing] like he had a few," "feeling pretty good," and "pretty happy-go-lucky." Between 5:45 and 6:20 P.M., Regan and his friends left the Whirlaway for the home of Scott Adie, another member of the drinking group, where Regan and Adie swam laps in a swimming pool. Each member of the group drank a can of beer supplied by Adie.

Gary Signor, another member of the group, drove to his home with Regan from Adie's place. There he loaned his car to Regan on the latter's promise to go straight home. This Regan did not do. Instead, he drove to Henry J's, another watering spot that he favored. Regan arrived between 7:30 and 8:30 P.M. at Henry J's, where he was observed ingesting another beer and buying for two acquaintances. One of those acquaintances, Patsy Moschetto, testified that Regan looked like "[h]e might have had a couple, but he wasn't cocked that he couldn't walk or nothing." Between 8:30 and 8:45 P.M., Regan surfaced at the Whirlaway again. There was no evidence that Regan was served or was drinking on this last visit to the Whirlaway, although he bought a beer for an acquaintance, Philip McAdam. The bartender testified that she did not consider Regan drunk at the time, although he had "glossy eyes." In any event, she had not, she testified, served him.

The catastrophic accident occurred on Merrimack Street in Methuen, some twenty to twenty-five minutes after witnesses remembered Regan last leaving the Whirlaway.

In Cimino v. Milford Keg, Inc., 385 Mass. 323, 331-332 n. 9, 431 N.E.2d 920 (1982), the court identified eight elements of proof of dram shop (stretching that phrase to include bars and restaurants) liability. The plaintiff must prove that the negligent driver who was the immediate cause of injury: (1) was a customer of the defendant tavern; (2) was served intoxicating beverages; (3) while intoxicated; (4) in circumstances such that the server knew or reasonably should have known the customer was intoxicated; (5) the customer then operated a motor vehicle while intoxicated; (6) that operation was reasonably foreseeable by the defendant tavern; (7) a person of ordinary prudence, in the circumstances, would not have served the customer; and (8) the customer's driving caused an injury to the plaintiff that was within the scope of the risk.

1. Judgment notwithstanding the verdict. Regan's first sojourn at the Whirlaway on July 17, 1988, by a slender margin (but we do not weigh the evidence) succeeds in providing a basis for getting to a jury. Fitting the evidence to the decisive factors: Regan was a customer; he was served drinks; he was described by a witness as "looking like he had a few" and so it could be inferred he was intoxicated; if that witness thought Regan seemed to "be feeling pretty good," then it could be inferred (although Regan was described as walking and talking normally and not loud or vulgar, contrast Cimino v. Milford Keg, Inc., 385 Mass. at 325, 328, 431 N.E.2d 920) that the bartender reasonably should have recognized Regan was intoxicated when she served him a beer thereafter. ⁵

Subsequently, Regan operated a motor vehicle. There is some difficulty about the causal chain at this point because the accident with the plaintiffs occurred three to three and a half hours after Regan ended his first visit at the Whirlaway and Regan had refilled with beer on two subsequent occasions. Reading the record in the light most favorable to the plaintiffs, however, there was evidence from a toxicologist called by the plaintiffs from which the jury might conclude that it would take in excess of four hours for Regan to metabolize the alcohol he had consumed at the Whirlaway between 3:30 and 5:45 or 6:20 P.M. A bartender might be expected reasonably to foresee that it was within the scope of the risk that a customer who was having as much to drink as Regan did during his first visit to the Whirlaway would do injury on the road before the drinks "burned off." See Foster v. The Loft, Inc., 26 Mass.App.Ct. 289, 294-295, 526 N.E.2d 1309 (1988). Subject to those comparatively rare situations when a court is able to draw the...