Sweenor v. 162 State St., Inc.

• Decision Date: 04 April 1972
• Citation: Sweenor v. 162 State St., Inc., 281 N.E.2d 280, 361 Mass. 524 (Mass. 1972)
• Court: Supreme Judicial Court of Massachusetts
• Parties: James D. SWEENOR v. 162 STATE STREET, INC.

Page 280

281 N.E.2d 280

361 Mass. 524

James D. SWEENOR v. 162 STATE STREET, INC.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Feb. 9, 1972.

Decided April 4, 1972.

John H. Madden, Jr., Springfield, for plaintiff.

John J. Brogan, Jr., Springfield, for defendant.

Before CUTTER, SPIEGEL, REARDON, QUIRICO and BRAUCHER, JJ.

SPIEGEL, Justice.

In this action of tort the plaintiff seeks to recover for injuries he sustained while he was a patron in the drinking establishment of the defendant known as the 'Driftwood Lounge.' This case is before us on the plaintiff's exception to the trial judge's allowance of the defendant's motion for a directed verdict.

On the evening of December 8, 1967, the plaintiff entered the premises of the defendant and proceeded to the bar which 'was roughly oval in shape. There were some twenty or thirty stools around the bar plus a few tables and booths near the . . . entrance. . . . (He) passed three stools and a bowling machine and sat on a stool. The other stools were filled. The bar was filled nearly to capacity with about fifty people and it was crowded and noisy. . . . There was another patron . . . sitting on the next stool to the plaintiff's left who was getting loud and one of the bartenders or the owner (several times) told him to quiet down because he was making a disturbance. He looked like he was falling asleep.' 'He kept putting his head down on the bar like he was sleeping.' Then he would raise his head and yell, "where's my drink, where's my drink' in a . . . voice that could be heard all over the bar.' The bartender would then give him a drink. After he 'finished a drink, he (would) put his head back on the bar and his glasses would be gone and he'd say 'I want my drink," whereupon he would be given another drink. He was served about five drinks of whiskey while the plaintiff was there.

There was testimony by another customer at the bar that the owner said that the patron was 'noisy and loud and using foul language.' The owner of the bar testified that the patron sitting next to the plaintiff was 'unusually loud and upsetting and was disruptive of the people there.'

After the plaintiff had been at the bar about an hour or so he went to the cigarette machine and got a package of cigarettes. When he came back to the bar he saw the patron who had been occupying the stool next to him 'falling over the stool.' The plaintiff tried to 'grab' him and, when he did, 'the patron fell on the plaintiff's leg.' The plaintiff was injured and other customers helped him into a taxi which drove him home. Later he was taken to a hospital where it was learned that he had suffered a broken thigh bone. He remained in the hospital about three weeks and 'went home by ambulance on December 31, 1967, in a full body cast. In mid January, 1968, he had a full leg cast applied. He was on crutches until May, 1968, and then used a cane. He was disabled until September, 1968. His leg is permanently crooked as a result of the accident.'

The judge in allowing the defendant's motion for a directed verdict stated that his reason for doing so was that 'the action of the person falling off the stool and injuring the plaintiff was not the kind of violence intended by the Supreme Judicial Court in Carey v. New Yorker of Worcester, Inc. . . . (355 Mass. 450 (245 N.E.2d 420)).'

The language in the Carey case which the judge apparently relied on was as follows, at page 454, 245 N.E.2d at page 423: 'The specific kind of harm need not be foreseeable as long as it was foreseeable that there would be harm from the act which constituted the negligence, provided it was foreseeable that there would be violence toward others.' This language was included in paragraph numbered 3 of that opinion as part of our summary of the judge's charge. It is apparent that the charge was summarized because the defendant had argued two exceptions concerning it, neither of which involved the precise language here at issue....