Phoung Luc v. Wyndham Management Corp., No. 06-1737.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtLipez
PartiesPHOUNG LUC & Thai Minh Chinh, Plaintiffs, Appellants, v. WYNDHAM MANAGEMENT CORP., et al., Defendants, Appellees.
Decision Date07 August 2007
Docket NumberNo. 06-1737.
496 F.3d 85
PHOUNG LUC & Thai Minh Chinh, Plaintiffs, Appellants,
v.
WYNDHAM MANAGEMENT CORP., et al., Defendants, Appellees.
No. 06-1737.
United States Court of Appeals, First Circuit.
Heard January 9, 2007.
Decided August 7, 2007.

[496 F.3d 86]

David S.V. Shirley, with whom Joseph F. McDowell, III and McDowell & Osburn, P.A., were on brief, for appellants.

Timothy J. Smyth, with whom Thomas B. Farrey, III and Burns & Farey, were on brief, for appellees Tremont Boston Hotel, et al.

[496 F.3d 87]

Clyde K. Hanyen, with whom Peter E. Heppner and Lynch & Lynch, were on brief, for appellee Boston Ballroom Corporation.

Before BOUDIN, Chief Judge, LYNCH and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.


This diversity case involves a tragic accident which is not susceptible to the legal remedy that the plaintiffs-appellants seek in this action. They suffered injuries and losses as a result of Roberto Madruga's decision to drive while intoxicated. However, they are pursuing claims not against Madruga but against the bar that served him, and the hotel that housed that bar. As a federal court with diversity jurisdiction, we are bound to follow the law as articulated by the state courts, and we find that Massachusetts does not presently recognize the theories of liability asserted by plaintiffs. We, therefore, must affirm the district court's entry of summary judgment for defendants.

I.

A. Factual Background

Plaintiffs, husband Thai Minh Chinh and wife Phoung Luc, were driving to their home in Concord, New Hampshire, late at night on July 21, 2002. Luc was four months pregnant with their first child and needed to exit the car; Chinh, who was driving, pulled the car into the break-down lane and came to a stop. Luc unfastened her seatbelt and opened the passenger-side door. At that moment, their car was hit from behind by a truck driven by Madruga. The plaintiffs' car turned upside down and both Luc and Chinh were hurt. Among other injuries, Luc suffered a miscarriage.

At the time of the accident, Madruga was driving the truck, which belonged to his cousin, Helio Demelo, because Demelo was too intoxicated to drive. The pair, along with Demelo's girlfriend, had spent the evening at a Boston nightclub, the Roxy, which occupied the second floor of the Tremont Hotel. While at the Roxy, Madruga drank three mixed drinks, each of which had at least two shots of liquor, and one bottle of water. The group left the club shortly before 2:00 a.m., and Madruga began driving them home. After getting onto Interstate 93, northbound, Madruga set the cruise control and apparently fell asleep or otherwise stopped paying attention to the road. The vehicle drifted into the break-down lane and rear-ended the plaintiffs at a speed of about sixty miles per hour.

The Massachusetts State Police quickly arrived at the accident scene, where Madruga failed a number of field sobriety tests, including a breathalyzer test. He was arrested for driving a vehicle under the influence of alcohol.

The plaintiffs were taken to the hospital. Chinh's injuries were relatively minor, but Luc suffered serious injuries and was hospitalized for more than seventy days.

B. Procedural History

Plaintiffs filed this case in the district court, based on complete diversity of the parties and an amount in controversy in excess of $75,000. Plaintiffs originally sued both Madruga and Demelo, as well as the numerous corporate and business entities that owned or operated the Roxy and the Hotel.1 Madruga and Demelo were

496 F.3d 88

subsequently dismissed from the case. The Roxy moved to dismiss one of the claims against it2 and the Hotel moved to dismiss all thirteen claims against it. The Roxy argued that Massachusetts does not recognize the claim asserted by plaintiffs based on the Roxy's "method of operations." The Hotel argued that Massachusetts recognized no claims under which it could be held liable for the Roxy's serving of alcohol to Madruga. After a hearing, the district court granted the Roxy's motion and part of the Hotel's motion, leaving two claims against the Hotel intact, but dismissing eleven others. After discovery, both defendants moved for summary judgment, which the district court granted.

Plaintiffs appealed the dismissal of the "method of operations" claim against the Roxy and four claims against the Hotel.3

II.

A. Standard of Review

We review the district court's grant of a motion to dismiss for failure to state a claim de novo, while "taking as true the well-pleaded facts contained in the complaint and drawing all reasonable inferences therefrom in the plaintiff's favor." Garrett v. Tandy Corp., 295 F.3d 94, 97 (1st Cir.2002). With this "plaintiff-friendly" approach in mind, we may affirm the dismissal only if the facts lend themselves to no viable theories of recovery. Id. However, we are not limited to the reasoning offered by the district court, but "may affirm an order of dismissal on any basis made apparent by the record." Ramos-Pinero v. Puerto Rico, 453 F.3d 48, 51 (1st Cir.2006).

Also, as a federal court considering state law claims, we must apply the state's law on substantive issues and "we are bound by the teachings of the state's highest court." N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 37-38 (1st Cir. 2001). If the state's highest court, here the Supreme Judicial Court ("SJC"), has not definitively addressed a question, we may consult other sources as we "make an informed prophecy" about what rule the state courts would likely follow. Id. at 38. That said, however, we generally make such prophecies only on interstitial questions. As a federal court, we will not create new rules or significantly expand existing rules. We leave those tasks to the state courts. See Jordan v. Hawker Dayton Corp., 62 F.3d 29, 32 (1st Cir.1995) ("[P]laintiff chose a federal, rather than a state forum, presumably cognizant of this court's statement that `litigants who reject

496 F.3d 89

a state forum in order to bring suit in federal court under diversity jurisdiction cannot expect that new trails will be blazed.'" (quoting Ryan v. Royal Ins. Co. of Am., 916 F.2d 731, 744 (1st Cir.1990))); see also Douglas v. York County, 433 F.3d 143, 149 (1st Cir.2005) ("It is not our role to expand [state] law; that is left to the courts of [the state]."); Carreiro v. Rhodes Gill & Co., 68 F.3d 1443, 1448 (1st Cir. 1995). With these principles guiding us, we address first the claim against the Roxy, and then turn to the claims against the Hotel.

B. Claim Against the Roxy

Plaintiffs have appealed the dismissal of their so-called "method of operation" claim, wherein they urge us to recognize a new theory of liability for bar or tavern owners. We first survey the applicable Massachusetts tort liability law and then analyze how this novel claim might fit within existing law.

In 1968, the SJC held that a person injured in a car accident, caused by an intoxicated driver, could have a cause of action against the owner of the bar where that driver was served. Adamian v. Three Sons, Inc., 353 Mass. 498, 233 N.E.2d 18, 20 (1968). However, the court explicitly stated that liability would only attach where the bar could have reasonably foreseen the risk of serving an "already intoxicated" patron. Id. Thus, the SJC adopted the rule that "a tavern keeper does not owe a duty to refuse liquor to an intoxicated patron unless the tavern keeper knows or reasonably should have known that the patron is intoxicated." Cimino v. Milford Keg, Inc., 385 Mass. 323, 431 N.E.2d 920, 924 (1982).4 There can be no negligence on the part of the tavern owner unless he serves alcohol to a person "who already is showing discernible signs of intoxication." Vickowski v. Polish Am. Citizens Club, 422 Mass. 606, 664 N.E.2d 429, 432 (1996). That visible intoxication provides a basis for inferring the requisite knowledge of intoxication, with its attendant foreseeable risks, on the part of the tavern owner.

Thus, a plaintiff who shows that the patron in question was actually intoxicated has not done enough to establish liability. The evidence must also show that the intoxication was apparent, or should have been apparent, to the server prior to service of the last alcoholic drink. Id. Where a patron "was exhibiting signs of intoxication before he or she was served a last alcoholic drink (or drinks)," id., there is circumstantial evidence of the tavern owner's knowledge that he was serving an already-intoxicated person. This type of circumstantial evidence enables plaintiffs to carry their burden without the difficulty of providing direct evidence of the tavern keeper's knowledge. See, e.g., Makynen v. Mustakangas, 39 Mass.App.Ct. 309, 655 N.E.2d 1284, 1287 (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) (same).

The plaintiffs seek to offer a different type of circumstantial evidence to show that the bar knew, or should have known, that it was serving intoxicated patrons, thereby creating foreseeable risks to those patrons and third parties. They contend

496 F.3d 90

that the Roxy's "method of operation" provides a basis for inferring such knowledge. They emphasize that the Roxy was managed in a way that ensured maximum alcohol sales with minimal knowledge on the part of the bartenders and waiters about the level of intoxication of any particular patron. They point to the low ratio of servers to customers (one server for every sixty customers), the atmosphere (dark, loud, and crowded), and the availability of alcoholic beverages from multiple sales points. A given customer could purchase a drink from any of the sixteen bartenders or six wait staff, and could purchase different drinks from each of these servers throughout the evening. Thus, plaintiffs allege, it is possible for a patron to become heavily intoxicated without a single server having...

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58 practice notes
  • United States ex rel. Westmoreland v. Amgen, Inc., Civil Action No. 06–10972–WGY.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 15, 2011
    ...States, Civ. No. 08–10149–PBS, 2010 WL 3860597, at *5 (D.Mass. Sept. 29, 2010) (Saris, J.) (citing Phoung Luc v. Wyndham Mgmt. Corp., 496 F.3d 85, 88 (1st Cir.2007)).C. Analysis1. Compliance with the Anti–Kickback Statute as a Precondition of Medicare Payment The Defendants ask this Court t......
  • United States v. Duval, Criminal No. 03–10292–PBS.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • July 17, 2013
    ...charging language as a predicate offense for the ACCA, regardless of non-violent variants of assault. See Nason, 269 F.3d at 21;Duval, 496 F.3d at 85. This legal precedent, Duval argues, was a government-created impediment to making the instant motion. § 2255(f)(2). Petitioner cites no case......
  • Owens v. City of Malden, CIVIL ACTION NO. 19-11835-WGY
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • October 26, 2021
    ...laws, this Court is bound by the decision of the Massachusetts Supreme Judicial Court in Depianti. See Phoung Luc v. Wyndham Mgmt. Corp., 496 F.3d 85, 88 (1st Cir. 2007). To file a complaint with the Massachusetts Attorney General is a legal requirement under Massachusetts General Laws chap......
  • Taupier v. Davol, Inc., Case No. 3:19-cv-10184-KAR
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 23, 2020
    ..." ‘make[s] an informed prophecy’ about what rule the state courts would likely follow." Phoung Luc v. Wyndham Mgmt. Corp. , 496 F.3d 85, 88 (1st Cir. 2007) (quoting N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 37-38 (1st Cir. 2001) ). See Eustace v. Springfield Pub. Schs. , ......
  • Request a trial to view additional results
56 cases
  • United States ex rel. Westmoreland v. Amgen, Inc., Civil Action No. 06–10972–WGY.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 15, 2011
    ...States, Civ. No. 08–10149–PBS, 2010 WL 3860597, at *5 (D.Mass. Sept. 29, 2010) (Saris, J.) (citing Phoung Luc v. Wyndham Mgmt. Corp., 496 F.3d 85, 88 (1st Cir.2007)).C. Analysis1. Compliance with the Anti–Kickback Statute as a Precondition of Medicare Payment The Defendants ask this Court t......
  • United States v. Duval, Criminal No. 03–10292–PBS.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • July 17, 2013
    ...charging language as a predicate offense for the ACCA, regardless of non-violent variants of assault. See Nason, 269 F.3d at 21;Duval, 496 F.3d at 85. This legal precedent, Duval argues, was a government-created impediment to making the instant motion. § 2255(f)(2). Petitioner cites no case......
  • Owens v. City of Malden, CIVIL ACTION NO. 19-11835-WGY
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • October 26, 2021
    ...laws, this Court is bound by the decision of the Massachusetts Supreme Judicial Court in Depianti. See Phoung Luc v. Wyndham Mgmt. Corp., 496 F.3d 85, 88 (1st Cir. 2007). To file a complaint with the Massachusetts Attorney General is a legal requirement under Massachusetts General Laws chap......
  • Taupier v. Davol, Inc., Case No. 3:19-cv-10184-KAR
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 23, 2020
    ...the court " ‘make[s] an informed prophecy’ about what rule the state courts would likely follow." Phoung Luc v. Wyndham Mgmt. Corp. , 496 F.3d 85, 88 (1st Cir. 2007) (quoting N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 37-38 (1st Cir. 2001) ). See Eustace v. Springfield Pub. Schs. , ......
  • Request a trial to view additional results

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