Michnik-Zilberman v. Gordon's Liquor, Inc.

• Decision Date: 23 August 1983
• Docket Number: MICHNIK-ZILBERMAN
• Citation: 453 N.E.2d 430,390 Mass. 6
• Parties: Ellena B., individually and as administratrix, v. GORDON'S LIQUOR, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 430

453 N.E.2d 430

390 Mass. 6

Ellena B. MICHNIK-ZILBERMAN, individually and as administratrix, v. GORDON'S LIQUOR, INC.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Feb. 10, 1983.

Decided Aug. 23, 1983.

Michael Reilly, Boston, for defendant.

Joseph D. Steinfield, Boston (John A.D. Gilmore, Boston, with him) for plaintiff.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.

ABRAMS, Justice.

On July 25, 1977, Thomas A. Thoele, a minor, operated an automobile after consuming alcoholic beverages purchased from the defendant, Gordon's Liquor, Inc. (store), and struck David Zilberman. Zilberman sustained injuries and died as a result of the accident. The plaintiff, Ellena B. Michnik-Zilberman, brought this action in Superior Court against the store to recover compensation for her husband's injuries and death. The jury found for the plaintiff. The Appeals Court affirmed, determining that there was evidence supporting the store's liability under the theory that the "injuries inflicted by Thoele were a foreseeable consequence of the negligent sale of alcoholic beverages to him." Michnik-Zilberman v. Gordon's Liquor, Inc., 14 Mass.App.Ct. 533, 534, 440 N.E.2d 1297 (1982). The case came here on the store's motion for further appellate review. We affirm.

We summarize the evidence. ¹ Late in the afternoon of July 25, 1977, Thomas Thoele, who had recently turned seventeen years of age, drove to the store and parked in its parking lot. He entered the store, took a six-pack of twelve ounce containers of beer from the cooler, and paid the cashier. The store had a policy of requiring identification from youthful-looking customers to avoid sales to minors. ² Although he had a young appearance at the time and had not yet begun to shave, Thoele was not asked for any identification.

Thoele drove home from the store, showered, ate dinner, and then left for the evening with the beer he had just purchased. He drank three or four beers between 8:30 P.M. and 10 P.M., and consumed some of it while in his automobile. At approximately 10 P.M., Thoele drove down Crescent Street, Waltham, where Zilberman was riding his bicycle. Zilberman was an experienced cyclist, who bicycled to and from his job once or twice a day. Thoele saw the bicycle's rear reflector about 100 feet ahead of him on the right side of the road. As he pulled forward, he hit the bicycle with the right side of his car. Zilberman died as a result of the injuries he sustained in the accident.

There was evidence that the portion of the street on which the accident occurred was straight and well-lighted. There was no sign of braking on the road, but there was evidence that Thoele's automobile hit a wooden utility pole after hitting the bicycle. Approximately eighty feet before the automobile came to the light pole, it passed an engine block resting on the edge of the road, protruding approximately fifteen to eighteen inches from the curb. Scattered around the engine block were bicycle reflector pieces, indicating that the deceased had collided with the side of the engine block.

The store asserts that there was insufficient evidence that the sale was the proximate cause of the accident. In addition, the store contends that a new trial is required because the judge refused to allow cross-examination of Thoele regarding his prior settlement with the plaintiff, and because the judge allegedly conducted the trial in a manner detrimental to the store's case.

1. Motions for a directed verdict and for a judgment notwithstanding the verdict. The store bases its right to appeal the sufficiency of the evidence to support a finding against it on its prior motions for a directed verdict and for a judgment notwithstanding the verdict. We need not review the sufficiency of the evidence, however, because the store waived its right to request that review. At the close of the plaintiff's case, the store moved for a directed verdict pursuant to Mass.R.Civ.P. 50(a), 365 Mass. 814 (1974), which the judge denied. ³ The store failed to renew the motion at the close of its case. Failure to renew the motion, as the store admits, generally results in a waiver of the right to assert error in the denial of a directed verdict. Martin v. Hall, 369 Mass. 882, 884-885, 343 N.E.2d 841 (1976). It also results in a waiver of the right to appeal the denial of the store's subsequent motion for a judgment notwithstanding the verdict. See Mass.R.Civ.P. 50(b), 365 Mass. 814 (1974); Sears v. Pauly, 261 F.2d 304, 306-307 (1st Cir.1958).

The store claims that several exceptions to the general rule apply to its situation. The store asserts that it should not have been required to renew its motion because the evidence it presented was "brief and inconsequential." King v. G & M Realty Corp., 373 Mass. 658, 659-660 n. 3 (1977). However, the store's evidence was not inconsequential to the outcome of the case. The store presented testimony on its long-standing policy of requiring identification and attempted to show that Thoele had not purchased the beer at the store. Thus, the evidence offered by the store went directly to matters at issue and was not inconsequential.

The store claims that if we do not review the sufficiency of the evidence, "manifest injustice" will occur because there is no evidentiary support for the verdict, citing Sojak v. Hudson Waterways Corp., 590 F.2d 53, 54-55 (2d Cir.1978). In reviewing the record on these grounds, we must determine whether there was any error and, if any, whether such error requires us to conclude that the verdict is "inconsistent with substantial justice." Mass.R.Civ.P. 61, 365 Mass. 829 (1974). See Little v. Bankers Life & Cas. Co., 426 F.2d 509, 511 (5th Cir.1970). Finally, the store argues that it is an unprecedented step to extend liability to package stores for injuries arising from their sales to minors. We turn first to the issue whether a store is liable for injuries proximately caused by the sale of liquor to a minor.

2. Liability of a vendor for damages caused by a minor to whom it negligently sold alcoholic beverages when the minor was not intoxicated. The store asserts that liability extends to vendors of alcoholic beverages for injuries caused by their customers only when the sale of those beverages is to an intoxicated customer. We do not agree. It is the rule of this Commonwealth that negligence on the part of a seller or supplier of alcoholic beverages may be shown by a sale or the furnishing of those beverages to a minor, as well as to an inebriated person, as each is proscribed by statute. See G.L. c. 138, §§ 34, 69; Carey v. New Yorker of Worcester, Inc., 355 Mass. 450, 453-454, 245 N.E.2d 420 (1969); Dimond v. Sacilotto, 353 Mass. 501, 502, 233 N.E.2d 20 (1968); Wiska v. St. Stanislaus Social Club, Inc., 7 Mass.App.Ct. 813, 816, 390 N.E.2d 1133 (1979). See also Rappaport v. Nichols, 31 N.J. 188, 202, 156 A.2d 1 (1959). Thus, the sale of alcoholic beverages to a minor is evidence of negligence even if the minor is not intoxicated at the time of the transaction. ⁴ It is the sale or furnishing of alcohol itself which is critical.

"The Legislature has in explicit terms prohibited sales to minors as a class because it recognizes their very special susceptibilities and the intensification of the otherwise inherent dangers when persons lacking in maturity and responsibility partake of alcoholic beverages .... It seems clear ... that [the statutes'] broadly expressed restrictions were not narrowly intended to benefit the minors and intoxicated persons alone but were wisely intended for the protection of members of the general public as well." Id. at 201-202, 156 A.2d 1. Carey v. New Yorker of Worcester, Inc., supra 355 Mass. at 455, 245 N.E.2d 420. See Elder v. Fisher, 247 Ind. 598, 603, 217 N.E.2d 847 (1966); Davis v. Billy's Con-Teena, Inc., 284 Or. 351, 356, 587 P.2d 75 (1978). Once a vendor places liquor in the hands of a minor, it may set in motion the very harm which the Legislature has attempted to prevent.

The Legislature has placed on every vendor who holds a license to furnish alcoholic beverages and a concomitant right to profit from its sale the responsibility to refrain from supplying those beverages to minors or to intoxicated persons. See G.L. c. 138, §§ 34, 69. The Legislature has approved two cards, a liquor identification card and a driver's license, on which vendors of alcoholic beverages may reasonably rely to ascertain the age of youthful customers. G.L. c. 138, § 34B. A vendor may protect itself by maintaining a record of the identification card numbers, as well as the name, address, and age of any person with a youthful appearance to whom it sells liquor. ⁵

In order to comply with the Legislature's objective to protect the public and minors through its prohibition of sales to underage buyers, vendors must exercise the care of a reasonably prudent person. "When a statute provides that under certain circumstances particular acts shall or shall not be done, it may be interpreted as fixing a standard for all members of the community, from which it is negligence to deviate." Prosser, Torts § 36, at 190 (4th ed. 1971). See Restatement (Second) of Torts §§ 285, 286 (1965). Thus, if a vendor fails to exercise due care and sells liquor to a minor, it is responsible for all proximately caused injuries. ⁶ "The legislative policy, being clear, is not to be rendered futile of practical accomplishment," Adamian v. Three Sons, Inc., 353 Mass. 498, 500, 233 N.E.2d 18 (1968), by absolving vendors of alcoholic beverages from all liability, but rather will be enforced so as to encourage adherence to the law.

Further, the vendor need not foresee the particular kind of harm which might occur from its negligent sales. Of course, the act and the harm must be reasonably foreseeable. One of the more foreseeable risks is that the minor may drive and cause harm to third persons while intoxicated. See ...