Yakubowicz v. Paramount Pictures Corp.

• Decision Date: 18 April 1989
• Citation: 536 N.E.2d 1067,404 Mass. 624
• Parties: , 16 Media L. Rep. 1725 William V. YAKUBOWICZ, administrator, 1 v. PARAMOUNT PICTURES CORPORATION et al. 2 Supreme Judicial Court of Massachusetts, Middlesex
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1067

536 N.E.2d 1067

404 Mass. 624, 16 Media L. Rep. 1725

William V. YAKUBOWICZ, administrator, ¹ v. PARAMOUNT PICTURES CORPORATION et al. ² Supreme Judicial Court of Massachusetts Middlesex.

Argued Dec. 8, 1988.

Decided April 18, 1989.

Elizabeth N. Mulvey, Boston, for plaintiff.

David W. Rosenberg, Boston, for Paramount Pictures Corp.

James S. Dittmar (Gordon P. Katz, Rhonda L. Russian, Boston, & Joseph H. Caffrey with him), for Saxon Theatre Corp.

Before HENNESSEY, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The plaintiff, William Yakubowicz, administrator of the estate of his son, Martin Yakubowicz, appeals from an order of the Superior Court granting summary judgment to the defendants, Paramount Pictures Corporation (Paramount) and Saxon Theatre Corporation (Saxon), on a complaint seeking damages for wrongful death under G.L. c. 229, § 2 (1986 ed.). The complaint alleges that sixteen-year-old Martin Yakubowicz died from a knife wound intentionally inflicted on February 15, 1979, by Michael Barrett, who was returning from a theatre in Boston operated by Saxon, after viewing the motion picture, "The Warriors," which was produced and distributed by Paramount. The complaint alleges that both defendants knew of violence and threats of violence perpetrated by members of "gangs" attending showings of the film in Boston and in California, and that Martin Yakubowicz's death was causally related to the defendants' exhibition of the film to Michael Barrett.

Specifically, count one alleges that Paramount produced, distributed, and advertised "The Warriors" in such a way as to induce film viewers to commit violence in imitation of the violence in the film. Counts two and four allege that Paramount and Saxon caused the decedent's death by continuing to exhibit the film after learning of "an unprecedented series of lawless violent acts" at or near theatres showing the film. Count three charges Paramount with failure to warn exhibitors and public authorities of the danger of violence, and "failure to take reasonable steps to protect [persons] at or near the theatre." Count five alleges that Michael Barrett consumed alcohol while viewing "The Warriors," and left the theatre in an intoxicated state, and charges Saxon with failing to exercise proper supervision and control over its patrons.

Both defendants moved for summary judgment, arguing that, as a matter of law, they owed no duty to the decedent, and that the First Amendment to the United States Constitution and art. 16 of the Declaration of Rights of the Massachusetts Constitution, as amended by art. 77 of the Amendments, bar liability for their exhibition of the film. The judge who ruled on the motions for summary judgment noted that the "decedent was neither a patron nor within the proximity of the Saxon Theatre at the time of the incident," and that Saxon did not supply Barrett with any alcoholic beverages. He concluded that there was no "special relationship" between the plaintiff's decedent and either defendant and that therefore the defendants owed no duty to the plaintiff's decedent. Accordingly, the judge granted the defendants' motion without reaching the constitutional question. We affirm the summary judgment order, although our reasoning differs from that of the judge.

"Rule 56(c) of the Massachusetts Rules of Civil Procedure, 365 Mass. 824 (1974), provides that summary judgment is appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' 'The party moving for summary judgment assumes the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue, even if he would have no burden on an issue if the case were to go to trial.' Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989). Attorney Gen. v. Bailey, 386 Mass. 367, 371, 436 N.E.2d 139, cert. denied sub nom. Bailey v. Bellotti, 459 U.S. 970, 103 S.Ct. 301, 74 L.Ed.2d 282 (1982)." Leavitt v. Mizner, 404 Mass. 81, 88, 533 N.E.2d 1334 (1989). Accordingly, we look at the materials available to the judge for summary judgment purposes in the light most favorable to the plaintiff to see whether, as a matter of law, they support a claim for wrongful death.

The materials submitted to the motion judge present the following facts. "The Warriors" is a motion picture produced, distributed, marketed, and advertised by Paramount. The film includes numerous scenes of juvenile gang-related violence in which youths battle with knives, guns, and other weapons as they pursue one gang, the "Warriors," through the subways of New York City. Advertising for the film depicted menacing youths wielding baseball bats. The film opened at the Saxon Theatre on February 9, 1979. Paramount executives scheduled the film for release in Massachusetts during February school vacation week in order to maximize attendance by high school-aged patrons.

On February 12, 1979, two youths were killed near theatres showing "The Warriors" in Palm Springs and Oxnard, California. ³ Paramount officials were aware of claims that the Palm Springs killing was related to the viewing of the film, "The Warriors." On February 13, 1979, Frank Mancuso, a Paramount employee in charge of film distribution throughout the United States, distributed a telegram to his district and branch managers ordering them to advise each theatre showing "The Warriors" to hire security guards. The telegram stated that "there have been incidents of violence at theatres that might have been prevented with proper security and crowd control." Paramount offered to pay for the extra security. Saxon, in a letter to Paramount dated February 15, 1979, accepted the offer of reimbursement for extra security and also reported a problem of vandalism at showings of "The Warriors."

On the evening of February 15, 1979, Michael Barrett and two friends went to see "The Warriors" at the Saxon Theatre on Tremont Street in Boston. Before arriving at the theatre, Barrett and one of his friends purchased liquor. Barrett's friend hid liquor bottles in the pockets of his jacket, and also poured a bottle of whiskey into a half-empty soft drink container. On the way into the theatre, an employee stopped Barrett, who was carrying the container. Barrett said to the theatre employee, "Want to smell it? It's only Coke," and the employee let him into the theatre with the container. This violated a Saxon policy against admitting patrons carrying alcoholic beverages or bottles of any kind. Once inside the theatre, Barrett began drinking, in violation of Saxon's policy against consuming alcohol on the premises. Saxon did not have a license for the sale or distribution of alcoholic beverages, and Saxon employees did not provide Barrett with any alcohol. Barrett and his friends sat through two showings of the movie. Barrett became so intoxicated that he vomited and passed out at the theatre during the second showing. After the movie, Barrett and his friends left the theatre and headed back to Dorchester by way of the Park Street subway station.

Another group of Dorchester teenagers, including Dino Troila, attended the same showing of "The Warriors" and also headed home by way of the Park Street station. There was a history of arguments and "tension" between this group and the group of youths that Barrett "hung out" with. While the teenagers were waiting for the train, the decedent came onto the platform. He had not been to see "The Warriors," but had been at work at a ski shop on Boylston Street. The decedent was friendly with Troila and got on the train with that group. Barrett and his friends boarded the same car.

As the train approached the Fields Corner subway station in Dorchester, Barrett's friend, Mark Rogers, approached Troila and tried to arrange a fight "one on one" between the decedent and Barrett. Barrett also began yelling at the decedent and challenging him to fight. Barrett referred to a fight that had occurred several months earlier between Barrett and some friends of the decedent. The decedent was not present at that earlier fight. Barrett said to the decedent, "I want you, I'm going to get you," purportedly in imitation of a scene from "The Warriors." The decedent repeatedly told Barrett that he did not want to fight.

Both groups left the subway at the Fields Corner station. As the decedent passed through the turnstyle area, Barrett, who was still drunk, jumped on him and began to fight. Troila and Rogers also became involved in the altercation. Barrett pulled a knife and stabbed the decedent in the chest. The decedent died the following morning.

On February 16, 1979, the day following the stabbing, Frank Mancuso, on behalf of Paramount, distributed a telegram offering to release theatre owners from their contractual obligations to show "The Warriors." The telegram stated: "It has come to our attention through newspaper and television reports that acts of violence and vandalism have occurred in and around theatres exhibiting THE WARRIORS.... Please be advised that in the event you believe that the exhibition of this motion picture in your theatre poses a risk to persons or property, then Paramount will relieve you of your obligation to exhibit the picture...." The telegram also stated that Paramount was cancelling all Paramount supported advertising for "The Warriors." This was the first time that Paramount ever took such action. Saxon received this telegram, but continued to exhibit "The Warriors" daily through April 5, 1979.

Counts one through four of the complaint allege, in essence, that Paramount was negligent in the way it produced, distributed, advertised, and exhibited the film, "The Warriors," and that Saxon was negligent in its continued exhibition of the film, and...