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 |
Robert W. Crowley, Boston, for plaintiffs.
Peter J. McCue, Boston, for defendant.
Before DREBEN, SMITH & GILLERMAN, JJ.
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 ( ) 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 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,...
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Terry v. Hospitality Mutual Insurance Company
...to put the defendant on notice that it was serving a man who could potentially endanger others"). Contrast Kirby v. Le Disco, Inc., 34 Mass. App. Ct. 630, 632, 614 N.E.2d 1016 (1993) (no evidence that patron was "aggressive, troublesome or even loud and vulgar"). Connors's subsequent car cr......
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Phoung Luc v. Wyndham Management Corp., 06-1737.
...(1995) (no liability without evidence of patron's obvious intoxication prior to service of his last drink); Kirby v. Le Disco, Inc., 34 Mass.App.Ct. 630, 614 N.E.2d 1016, 1018 (1993) The plaintiffs seek to offer a different type of circumstantial evidence to show that the bar knew, or shoul......
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Vickowski v. Polish American Citizens Club of Town of Deerfield, Inc.
...could not be liable when there was no evidence of obvious intoxication while patron was at bar); Kirby v. Le Disco, Inc., 34 Mass.App.Ct. 630, 632, 614 N.E.2d 1016 (1993) (affirming summary judgment for defendant in absence of any evidence of obvious intoxication); Wiska v. St. Stanislaus S......