Kirby v. Le Disco, Inc., 92-P-620

• Citation: 34 Mass.App.Ct. 630,614 N.E.2d 1016
• Decision Date: 21 June 1993
• Docket Number: No. 92-P-620,92-P-620
• Parties: Kathleen KIRBY & another, 1 v. LE DISCO, INC.
• Court: Appeals Court of Massachusetts

Page 1016

614 N.E.2d 1016

34 Mass.App.Ct. 630

Kathleen KIRBY & another, ¹ v. LE DISCO, INC.

No. 92-P-620.

Appeals Court of Massachusetts,

Norfolk.

Argued March 18, 1993.

Decided June 21, 1993.

Robert W. Crowley, Boston, for plaintiffs.

Peter J. McCue, Boston, for defendant.

Before DREBEN, SMITH & GILLERMAN, JJ.

GILLERMAN, Justice.

It appears from sworn deposition testimony (the case comes to us on the allowance of the defendant's motion for summary judgment) that in the early morning hours of November 20, 1987, John Gillen, twenty-four years old, six feet, two inches tall, weighing 225 pounds, and a former college football player, led an unprovoked, vicious assault on the two female plaintiffs who were attempting to leave a parking garage. Immediately after the assault (Gillen punched both women squarely in the face knocking each one to the ground, leaving Guest with serious head and facial injuries and Kirby with minor injuries ²), Gillen and his companions fled the garage.

It further appears that the plaintiffs spent the evening of November 19, 1987, at the defendant's cafe (Chevy's) with friends eating, drinking beer, and celebrating the birthdays of the two plaintiffs. Their car was parked in the parking garage just mentioned; it was across the street from Chevy's. Gillen and his friends arrived at Chevy's at around 10:30 P.M. They, too, had parked their car in the same parking garage. When the plaintiffs and their friends left Chevy's after midnight, Gillen and his friends followed them into the garage, and the assault began.

In his deposition testimony Gillen admitted to drinking "seven to ten beers--maybe twelve," at Chevy's, with his "best estimate" being eight beers. He also testified that when he left Chevy's he was "probably legally" drunk, by which he meant that his "blood alcohol level might have been over point one." Prior to being at Chevy's, Gillen was at another establishment where he had drunk two beers.

While conceding that "there isn't any direct testimony on the issue of Gillen's condition while drinking at Chevy's," and relying solely on the facts we have stated, the plaintiffs argue that a jury should be permitted to infer that "Gillen had outwardly manifested symptoms of intoxication while he was drinking at Chevy's which an experienced bartender would have recognized."

The plaintiffs have no cognizable claim against Chevy's. It is true that a tavern keeper's service of alcohol to a person already intoxicated may be some evidence of the defendant's negligence because it violates G.L. c. 138, § 69. Cimino v. Milford Keg, Inc., 385 Mass. 323, 327, 431 N.E.2d 920 (1982). But § 69 (a provision prohibiting the sale of liquor to intoxicated persons) does not grant an independent ground for civil liability. The liability of the defendant "must be grounded in the common law of negligence." Bennett v. Eagle Brook Country Store, Inc., 408 Mass. 355, 358, 557 N.E.2d 1166 (1990). The applicable rule is 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 ... [T]he plaintiff (must) introduce some evidence showing the defendant was on notice that it was serving alcoholic beverages to an intoxicated patron." Cimino v. Milford Keg, Inc., supra, 385 Mass. at 327-328, 431 N.E.2d 920.

The few facts presented by the plaintiffs in their opposition to the defendant's motion for summary judgment,...