Nunez v. Carrabba's Italian Grill, Inc.

• Decision Date: 09 January 2007
• Parties: Robert E. NUNEZ, Second v. CARRABBA'S ITALIAN GRILL, INC., & another.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 801

859 N.E.2d 801

448 Mass. 170

Robert E. NUNEZ, Second v. CARRABBA'S ITALIAN GRILL, INC., & another.¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued December 4, 2006.

Decided January 9, 2007.

Richard I. Clayman, Chelsea (John L. Dodge with him) for the plaintiff.

Roger A. Emanuelson, Quincy, for Carrabba's Italian Grill, Inc.

Thomas Drechsler, Boston, for Saugus Concessions, Inc.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

SPINA, J.

In this summary judgment action now before us on direct appellate review, we answer the following question left open in Tobin v. Norwood Country Club, Inc., 422 Mass. 126, 661 N.E.2d 627 (1996). What is the legal responsibility of a licensed commercial establishment for injuries sustained by an adult, but underage, patron² as a consequence of that establishment's furnishing alcoholic beverages to such patron? We conclude that in a civil action against the licensed commercial establishment, the injured plaintiff need not prove wilful, wanton, or reckless conduct on the part of the establishment, but may prevail on a showing that the establishment was negligent in serving alcoholic beverages to the underage patron.

1. Background. We set forth the facts in the light most favorable to the plaintiff. At approximately 7 P.M. on May 10, 2002, the plaintiff, who was eighteen years old at the time, went to Carrabba's Italian Grill, Inc. (Carrabba's), a restaurant in Peabody, with a friend. He had previously worked there as a waiter and knew many of the employees. During the next two hours, the plaintiff ate dinner and drank six alcoholic beverages, which were served to him by a bartender who had known the plaintiff since high school. Because the plaintiff was friendly with the staff at Carrabba's, he was not asked to pay for his drinks or dinner.

Around 9:30 P.M., the plaintiff left Carrabba's and drove home. He did not recall having any difficulty walking or driving, but the plaintiff vomited after he arrived home. Nonetheless, after taking a shower, the plaintiff left his house to go to the Palace, a nightclub in Saugus, arriving around 11:30 P.M. He had previously done promotional work for the nightclub and knew many of the employees, including the bartender on duty that night, whom the plaintiff had been going to see. The plaintiff later testified at a deposition that he had been to the Palace on more than thirty prior occasions. On the first several occasions, he had presented a false identification to the bouncer to gain entry, but once he became familiar to the employees, he no longer did so. Thus, when the plaintiff entered the Palace on May 10, 2002, he greeted the bouncer and proceeded inside without showing his false identification. The plaintiff also had a plastic bracelet that the nightclub gave to customers who were at least twenty-one years old and could legally drink alcoholic beverages. While at the nightclub that evening, the plaintiff consumed one or two alcoholic beverages that were served to him by the bartender.

Sometime between midnight and 1 A.M., the plaintiff left the Palace and drove to a friend's house to see whether she was home. When he did not see her car parked outside, he decided to drive home. As the plaintiff's vehicle approached the intersection of Broadway and Elwell Street in Malden, he saw a green traffic light and accelerated to fifty-five or sixty miles per hour to get through the light before it turned red. When the plaintiff entered the intersection, his vehicle was struck by another car that had failed to stop at the red light for the opposite direction. The impact caused the plaintiff's vehicle to spin and then roll over. The plaintiff was thrown out of the vehicle because he had failed to fasten his seat belt, and he sustained serious injuries. Tests performed when the plaintiff was admitted to a hospital indicated a blood alcohol level of .13, considerably above the allowable limit of .08, as set forth in G.L. c. 90, § 24(1)(e). An accident reconstruction team of the State police concluded that, at the time of impact, the plaintiff had been traveling at forty-seven miles per hour, and the vehicle that hit him had been traveling at eleven miles per hour. The speed limit in the vicinity of the intersection was thirty miles per hour. The report from the State police concluded that although the plaintiff was not the cause of the accident, his excessive speed at the time of the collision may have contributed to the seriousness of his injuries.

The plaintiff commenced an action against Carrabba's and the Palace (collectively, defendants), claiming that these two establishments were negligent in serving alcoholic beverages to him, an intoxicated underage adult, and that their negligence was a contributing cause of his injuries.³ The defendants moved for summary judgment, contending that the plaintiff had presented no evidence that they had engaged in wilful, wanton, or reckless conduct, as set forth by G.L. c. 231, § 85T,⁴ requiring proof of such conduct for personal injury claims based on negligent serving of alcohol to intoxicated persons. In response, the plaintiff asserted that this statute was not applicable to an adult, but underage, drinker like himself, and that the evidence was sufficient to raise a genuine issue of material fact as to the negligence of the defendants.

In a thorough and well-reasoned opinion examining the evolution of "dram shop liability" in the Commonwealth, a judge in the Superior Court allowed in part and denied in part the motions for summary judgment. With respect to the plaintiff's claim that the defendants breached their duty not to serve an intoxicated person, the judge opined that G.L. c. 231, § 85T, was controlling and that the plaintiff was required to prove that these establishments had served him alcohol with wilful, wanton, or reckless disregard for whether he was intoxicated. The judge concluded, as a matter of law, that the evidence, viewed in the light most favorable to the plaintiff, fell short of meeting this demanding standard, and therefore, the defendants were entitled to summary judgment with respect to this alleged breach of duty. We agree with the judge's analysis.

With respect to the plaintiff's claim that the defendants breached their duty not to serve an underage adult, the judge opined that G.L. c. 231, § 85T, was not applicable and that the plaintiff could prevail if he proved that these establishments served him alcohol when they knew, or reasonably should have known, that he was under twenty-one years of age and, therefore, under the legal age for drinking alcoholic beverages. Viewing the evidence in the light most favorable to the plaintiff, the judge concluded that there was a genuine issue of material fact as to the defendants' knowledge, and therefore, the defendants were not entitled to summary judgment with respect to this alleged breach of duty.

Following the issuance of the judge's order allowing in part and denying in part the motions for summary judgment filed by the defendants, each petitioned for interlocutory relief, G.L. c. 231, § 118, first par., and a single justice of the Appeals Court granted leave to pursue an interlocutory appeal from the judge's order. Carrabba's then filed an application for direct appellate review with this court, which was granted. We now consider what duty of care a licensed commercial establishment selling alcoholic beverages owes to an adult, but underage, patron.

2. Standard of review. We begin with the familiar principle that the standard of review on summary judgment "is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). See Mass. R. Civ. P. 56(c), as amended, 436 Mass. 1404 (2002). All evidentiary inferences must be resolved in favor of the plaintiff. See Simplex Techs., Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197, 706 N.E.2d 1135 (1999). Summary judgment is seldom granted in a cause of action alleging reckless or negligent conduct, but this is not an absolute rule. See Manning v. Nobile, 411 Mass. 382, 388, 582 N.E.2d 942 (1991).

3. Liability of licensed commercial establishment. In Tobin v. Norwood Country Club, Inc., 422 Mass. 126, 127-129, 661 N.E.2d 627 (1996), a seventeen year old girl who was a guest at a family reunion at the Norwood Country Club consumed many alcoholic beverages at the party, had an argument with her date, left the premises on foot, and was killed when she was struck by a car on the highway where she had been walking. In the civil action brought by the decedent's parents, the Norwood Country Club argued that "no duty had been triggered by its provision of alcohol to the deceased on the night of her death." Id. at 132, 661 N.E.2d 627. This court disagreed, concluding that the Norwood Country Club, a commercial establishment licensed to serve alcoholic beverages to the general public, "owed the deceased minor a duty of care to refrain from making alcohol available to her, an act that unreasonably increased the risk of harm to her." Id. at 135, 661 N.E.2d 627.

We pointed out that an establishment licensed to sell alcohol owed separate and distinct duties to two classes of patrons: intoxicated persons and minors. Id. at 136, 661 N.E.2d 627. To intoxicated persons, the licensed establishment owed a duty, limited by G.L. c. 231, § 85T, to refrain from wilful, wanton, or reckless conduct, whereby the intoxicated patron's condition would be prolonged or worsened. Id. To minors, the licensed establishment owed a duty to refrain from serving them any alcohol, regardless whether they were intoxicated, because of the Legislature's strongly paternalistic concern about the effects of alcohol on young adults. Id. We further stated that...