Wiska v. St. Stanislaus Social Club, Inc.

• Decision Date: 26 June 1979
• Citation: 7 Mass.App.Ct. 813,390 N.E.2d 1133
• Parties: , 3 A.L.R.4th 480 Hanna WISKA et al. 1 v. ST. STANISLAUS SOCIAL CLUB, INC. et al. 2
• Court: Appeals Court of Massachusetts

Page 1133

390 N.E.2d 1133

7 Mass.App.Ct. 813, 3 A.L.R.4th 480

Hanna WISKA et al. ¹ v. ST. STANISLAUS SOCIAL CLUB, INC. et al. ²

Appeals Court of Massachusetts, Hampden.

Argued Dec. 13, 1978.

Decided June 26, 1979.

Louis Kerlinsky, Springfield, for plaintiffs.

Philip J. Callan, Jr., Springfield, for General Motors Corp.

Edward J. McDonough, Springfield, for St. Stanislaus Social Club, Inc.

Before HALE, C. J., and ROSE and BROWN, JJ. ROSE, Justice.

On March 2, 1968, the plaintiffs Hanna Wiska and Theresa Jancura were injured while riding as front-seat passengers in a 1964 Pontiac automobile operated by one Kazimierz Nikiel. The automobile, travelling at approximately twenty-five miles per hour, struck a utility pole, and the plaintiffs sustained serious facial lacerations and head and other injuries from impact with the Pontiac's glass windshield. The plaintiffs brought this action seeking damages against St. Stanislaus Social Club, Inc. (Club), proceeding on the theory that the Club was negligent in selling alcoholic beverages to the driver of the Pontiac, and against General Motors Corporation (GMC), the manufacturer of the Pontiac, alleging negligent design of an automobile windshield and negligent failure to warn. After a trial conducted prior to the July 1, 1974, effective date of the Massachusetts Rules of Civil Procedure, the judge allowed the defendants' motions for directed verdicts on all counts. The plaintiffs appealed. Mass.R.Civ.P. 1A, subpars. 3 & 7, 365 Mass. 731, 732 (1974). There was no error.

1. The counts against St. Stanislaus Social Club. The plaintiffs alleged that the Club breached its duty to them by selling alcoholic beverages to Nikiel in violation of G.L. c. 138, § 34, ³ and of G.L. c. 138, § 69, ⁴ thereby creating liability on the part of the Club for injuries resulting from Nikiel's reckless driving.

The Club is a commercial establishment located on Chestnut Street in Chicopee, featuring a dance floor and a bar, with a parking lot provided on its premises for patrons' use. Nikiel arrived with the plaintiffs at the Club at 8:00 P.M. on March 2, 1968, and was served a drink of vodka by a waitress. The waitress testified that she knew Nikiel and that he had arrived at the Club on the night in question "by car." Nikiel left the Club for approximately one hour and returned at 9:45 P.M. Before 11:00 P.M. he was served another drink of vodka by the waitress and several more drinks by bartenders at the bar. There was testimony by two witnesses that Nikiel appeared to be "staggering a little" and "wiggling" at 11:00 P.M. in the Club and that he looked "a little drunk" at that time. At about 11:00 P.M. Nikiel left the Club with Wiska and Jancura and drove from the parking lot. As the automobile turned a corner at approximately twenty-five miles per hour it struck a utility pole, and the plaintiffs in the car were seriously injured. At trial, Wiska testified that Nikiel "was driving all right" when they left the parking lot, and Jancura testified that he was driving "normally."

A tavern keeper who sells alcoholic beverages to an intoxicated person or to a minor may be held civilly liable to a third party who is injured as a result of the customer's operation of a motor vehicle while intoxicated. Adamian v. Three Sons, Inc., 353 Mass. 498, 500-501, 233 N.E.2d 18 (1968). See Dimond v. Sacilotto, 353 Mass. 501, 233 N.E.2d 20 (1968). And, although the civil liability established by Adamian is grounded in the common law doctrine of negligence (see Three Sons, Inc. v. Phoenix Ins. Co., 357 Mass. 271, 275, 257 N.E.2d 774 (1970)), a violation of either § 34 or § 69 of G.L. c. 138 is some evidence of the defendant's negligence as to all consequences those statutes were intended to prevent. ⁵ See Adamian v. Three Sons, Inc., supra at 353 Mass. at 499, 233 N.E.2d 18; Carey v. New Yorker of Worcester, Inc., 355 Mass. 450, 453-454, 245 N.E.2d 420 (1969). In this case there was no evidence on which a jury could have found that the defendant had violated G.L. c. 138, § 69, by serving alcoholic beverages to an intoxicated person. Contrast Adamian v. Three Sons, Inc., supra at 353 Mass. 499, 233 N.E.2d 18. While there was evidence on which the jury could have found that Nikiel appeared to be intoxicated around 11:00 P.M., there was no evidence that he was served any liquor by the defendant after that time. There was likewise no evidence that Nikiel was or appeared to be intoxicated at the Club Prior to 11:00 P.M. There was evidence, however, that the defendant had sold alcoholic beverages to a minor in violation of G.L. c. 138, § 34, since several employees of the Club were shown to have served drinks of vodka to Nikiel between 8:00 P.M. and 11:00 P.M. Carey v. New Yorker of Worcester, Inc., supra 355 Mass. at 453-454, 245 N.E.2d 420. See Dimond v. Sacilotto, supra 353 Mass. at 502, 233 N.E.2d 20.

On two essential elements of their case, however, the plaintiffs failed to present sufficient evidence: actual causation and proximate causation. First, it must be shown that the minor's negligent motor vehicle operation was due to the influence of alcohol affecting his ability to drive. See Smith v. Clark, 411 Pa. 142, 145, 190 A.2d 441 (1963); 15 Ann.Surv. of Mass. Law 70, 77-78 n.38 (1968); Comment, 48 B.U.L.Rev. 502, 510-511 n.53 (1968). According to the evidence here, Nikiel was driving normally when he left the Club, and there was no evidence as to what caused the car to collide with the utility pole. Assuming that there was sufficient evidence to support a jury finding that Nikiel was intoxicated to some degree at the time of the accident, there was no evidence of any causal relationship between such intoxication and the accident.

Nor was the element of proximate causation established by the evidence. It is basic that a defendant cannot be held liable unless the injury was a foreseeable consequence of the negligent act. See Carey v. New Yorker of Worcester, Inc., supra 355 Mass. at 454, 245 N.E.2d 420. Here, there was no evidence that the defendant knew or should have known or was negligent in failing to recognize that Nikiel was a member of the class to which liquor sales are proscribed by G.L. c. 138, § 34. ⁶ Such evidence was essential to a finding that the plaintiffs' injuries were a foreseeable consequence of the defendant's negligence. ⁷ See Rappaport v. Nichols, 31 N.J. 188, 202, 156 A.2d 1 (1959), cited by Adamian v. Three Sons, Inc., supra 353 Mass. at 500, 233 N.E.2d 18; 15 Ann.Surv. of Mass. Law, Supra at 77-78; Comment, 48 B.U.L.Rev., Supra at 511.

Since the evidence was insufficient to warrant a conclusion that the illegal sale of alcoholic beverages by the Club to Nikiel was the actual or proximate cause of the plaintiffs' injuries, the Club's motion for a directed verdict was properly granted.

2. The counts against General Motors Corporation. We construe the various counts (fifteen in all) against GMC in the plaintiffs' complaint, in light of the evidence presented at trial, as raising issues of negligent design of the 1964 Pontiac windshield, negligent failure to warn users of the dangerous characteristics of the windshield, and strict liability. The court was correct in directing verdicts for the defendant on all counts.

Through their expert witness, an automotive consulting engineer, the plaintiffs attempted to introduce evidence showing that GMC's 1964 Pontiac windshield was unreasonably dangerous to users because of its characteristic mode of rupturing in long, jagged fragments. Alternatively, they attempted to show that GMC negligently failed to warn users that a safer windshield glass which when ruptured did so in smaller fragments had come into use in the industry in 1966, and that the 1964 windshield was unreasonably dangerous without the use of seat restraints. Much of the witness' testimony was excluded or limited by the judge on the ground that the witness was not qualified to give expert testimony on these issues. We find no error in any of the judge's evidentiary rulings at trial.

The judge did not err in denying the plaintiffs' request to amend their complaint on the third day of trial to include allegations on the issue of seat restraints since, as the record indicates, the plaintiffs had more than once amended their pleadings and had had ample opportunity to include all necessary allegations. This is a case in which the judge's exercise of discretion under Mass.R.Civ.P. 15, 365 Mass. 761 (1974), should be respected. See Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, --- - --- ^A, 361 N.E.2d 1264 (1977), citing Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Contrast Evans Prod. Co. v. D. J. Dev. Corp., 6 Mass.App. ---, --- ^B, 375 N.E.2d 345 (1978).

The judge did not abuse his discretion in refusing to allow the expert to offer an opinion on whether the 1964 Pontiac windshield was dangerous to occupants in collisions at velocities over twelve miles per hour, or on what precautions a reasonable manufacturer would have taken to prevent injuries to users. The witness was properly allowed to testify as to his personal observations in conducting approximately 200 motor vehicle accident investigations, four percent of which had involved the 1964 type of glass windshield impacted from inside the vehicle. The witness' testimony on fracture characteristics of 1964 and 1966 glass windshields and their comparative injury-producing effects was properly limited to the question of common knowledge in the automotive industry that a safer glass had been developed for use in automobiles after 1966 which would fracture in small particles on impact at velocities of twenty-two to twenty-nine miles per hour, whereas 1964 glass was known to fracture in larger fragments at a velocity of twelve miles per hour.

The judge properly found that the witness was not qualified to offer a medical opinion regarding any causal relationship between ...