Makynen v. Mustakangas

• Decision Date: 28 November 1995
• Docket Number: No. 93-P-1342,93-P-1342
• Citation: 655 N.E.2d 1284,39 Mass.App.Ct. 309
• Court: Appeals Court of Massachusetts
• Parties: Angela M. MAKYNEN v. Steven J. MUSTAKANGAS & others. 1

Page 1284

655 N.E.2d 1284

39 Mass.App.Ct. 309

Angela M. MAKYNEN v. Steven J. MUSTAKANGAS & others. ¹ No. 93-P-1342.

Appeals Court of Massachusetts Worcester.

Argued April 12, 1995.

Decided Oct. 10, 1995.

Further Appellate Review Denied Nov. 28, 1995.

Carol A. Griffin, Boston, for Ronald Mustakangas.

H. Charles Hambelton, Burlington, for Pete & Henry's, Inc.

John A. Wickstrom, Whitinsville (Mark P. Wickstrom, with him), Worcester, for plaintiff.

Mary Joan McNamara, Special Assistant Attorney General, and Michele A. Kaczynski, Assistant Attorney General, for the Commonwealth, submitted a brief.

Before DREBEN, KASS and GREENBERG, JJ.

DREBEN, Justice.

On March 10, 1989, Steven Mustakangas (Steven), after drinking a number of beers at the house of his uncle, Ronald Mustakangas (Ronald), went to Pete & Henry's, a restaurant with a small bar. He was accompanied by his uncle and his cousin, Mark. The three ordered take-out dinners and had drinks while they were waiting. Ronald paid for the food and drinks. Soon after leaving Pete & Henry's in his automobile, Steven, while driving through property of the Fernald School, was stopped by a police officer for driving twenty miles an hour in a ten mile an hour zone. The Fernald School is a facility of the Commonwealth. The officer, a Commonwealth employee, issued a warning for speeding. About one half an hour later, at about 9:30 P.M., Steven's car crossed into the path of oncoming traffic and collided head-on with the plaintiff's vehicle. The policeman in charge of the investigation considered Steven intoxicated and arrested him for operating under the influence of alcohol and operating to endanger. The plaintiff sued Steven, Ronald, Pete & Henry's, and the Commonwealth. She recovered a jury verdict of $1,200,000 against all four defendants.

Pete & Henry's, Ronald, and the Commonwealth filed timely motions for directed verdicts and for judgment notwithstanding the verdict, which were denied. Pete & Henry's, Ronald and the Commonwealth appeal from the denial of their motions. ² We affirm the judgment against Ronald but reverse as to Pete & Henry's and the Commonwealth.

1. Ronald's liability. Relying on McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 162, 496 N.E.2d 141 (1986), the plaintiff argues that Ronald is liable as a social host. In McGuiggan, the Supreme Judicial Court stated that it would recognize such liability

"to a person injured by an intoxicated guest's negligent operation of a motor vehicle where a social host who knew or should have known that his guest was drunk, nevertheless gave him or permitted him to take an alcoholic drink and thereafter, because of his intoxication, the guest negligently operated a motor vehicle causing the third person's injury."

Subsequent cases clarified that the duty is only imposed "in cases where the host can control and therefore regulate the supply of liquor." The ability to control "is not present when the liquor belongs to the guest." Ulwick v. DeChristopher, 411 Mass. 401, 406, 582 N.E.2d 954 (1991). Cremins v. Clancy, 415 Mass. 289, 293-294, 612 N.E.2d 1183 (1993).

Ronald claims that there is insufficient evidence that he provided beer or made it available to Steven to impose a legal duty based on the extent of his control over the alcohol consumed by Steven. Nor, Ronald argues, was there any showing that he knew or should have known that Steven was intoxicated. On the basis of the appropriate standard of review, whether "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff," Poirier v. Plymouth, 374 Mass. 206, 212, 372 N.E.2d 212 (1978); Forlano v. Hughes, 393 Mass. 502, 504, 471 N.E.2d 1315 (1984), we conclude, while the question is close, that there was sufficient evidence for the jury to find Ronald liable.

The jury could have found the following facts. Steven, age twenty-four, lived off and on with his uncle Ronald in Phillipston. On the day of the accident, Steven arrived at Ronald's home around six P.M., made himself something to eat, and took a beer from the refrigerator in the house. He then went into the garage to fix his car. There was a refrigerator in the garage in which Ronald stored beer and soda; Steven and other members of the family were free to take drinks out of that refrigerator. That evening, Steven consumed about five or six bottles of beer taken from the garage refrigerator. ³ Ronald also drank with Steven, starting about seven-thirty in the evening, but he consumed less beer. Subsequently, Ronald, Mark, and Steven left for Pete & Henry's, which was about ten minutes away, arriving there at about eight-fifteen. While they waited for their take-out orders, Steven had two or three sixteen ounce cans of beer which were paid for by Ronald. His last beer was consumed about forty minutes before the accident. They left the bar at about ten minutes of nine. When asked whether his uncle expressed concern about his ability to drive his car, Steven answered "yes," and testified that his uncle had asked him if he would be "okay to drive to Worcester." Steven thought that at the time he left the bar he was "pretty well intoxicated."

We find it unnecessary to consider whether there was enough evidence for the jury to find that Ronald had sufficient control over his refrigerator to have "the obligation, or the means effectively to control the supply of beer that Steven could drink from that source." Compare Cremins v. Clancy, 415 Mass. at 294, 612 N.E.2d 1183. This is so because there is no evidence that Ronald at that time knew or should have known that Steven was intoxicated during the period he had access to the refrigerator. Even if Ronald had heard the refrigerator door slam a number of times, ⁴ soft drinks were also kept there and his son was in the garage during part of the period Steven was there. Moreover, the number of beers taken from the garage, five to six, would not alone have put Ronald on notice that Steven was intoxicated. Compare Kirby v. Le Disco, Inc., 34 Mass.App.Ct. 630, 632, 614 N.E.2d 1016 (1993) (eight to twelve beers insufficient), with O'Hanley v. Ninety-Nine, Inc., 12 Mass.App.Ct. 64, 69, 421 N.E.2d 1217 (1981) (fifteen beers and six martinis), and Cimino v. Milford Keg., Inc., 385 Mass. 323, 328, 431 N.E.2d 920 (1982) (six or more "White Russians"), cases in which the amount of alcohol consumed was held sufficient to put the server on notice that the customer was intoxicated.

The evidence as to the additional three beers that Steven drank at Pete & Henry's and which were paid for by Ronald, however, raises a jury question whether Ronald knew or should have known that Steven was intoxicated at the time of his last drink. See Hopping v. Whirlaway, Inc., 37 Mass.App.Ct. 121, 124, 637 N.E.2d 866 (1994). This is the relevant time. Evidence of subsequent intoxication has been held to have "no bearing" on the driver's apparent condition at the time he took his last drink. McGuiggan, 398 Mass. at 162, 496 N.E.2d 141. Kirby v. Le Disco, Inc., 34 Mass.App.Ct. at 632, 614 N.E.2d 1016.

Ronald had been drinking with Steven for more than an hour, he had drunk...