Zinck v. Gateway Country Store, Inc.

• Decision Date: 11 September 2008
• Docket Number: No. 07-P-963.,07-P-963.
• Citation: 893 N.E.2d 364,72 Mass. App. Ct. 571
• Parties: Mary ZINCK<SMALL><SUP>1</SUP></SMALL> & another<SMALL><SUP>2</SUP></SMALL> v. GATEWAY COUNTRY STORE, INC., & another<SMALL><SUP>3</SUP></SMALL> (and a companion case<SMALL><SUP>4</SUP></SMALL>).
• Court: Appeals Court of Massachusetts

893 N.E.2d 364

72 Mass. App. Ct. 571

Mary ZINCK¹ & another² v. GATEWAY COUNTRY STORE, INC., & another³ (and a companion case⁴).

No. 07-P-963.

Appeals Court of Massachusetts, Essex.

Argued May 15, 2008.

Decided September 11, 2008.

Richard J. Fallon, West Acton (Stephen P. Colella with him) for Gateway Country Store, Inc.

Paul F. Denver for Mary Zinck & another.

Annette M. Gonthier-Kiely, Salem, for Neil Bornstein & others.

Present: McHUGH, DREBEN, & MILLS, JJ.

MILLS, J.

A jury returned verdicts for the plaintiffs on their claims that defendant, Gateway Country Store, Inc. (Gateway), negligently sold alcohol to an underage person and that this sale proximately caused Trista Zinck's death and Neil Bornstein's severe injuries.⁵ Posttrial motions for new trial and judgment notwithstanding the verdict were also denied. Gateway now claims that (1) certain statements made to police were improperly admitted under the statements against penal interest hearsay exception; (2) the evidence was insufficient to support the jury's finding that Gateway negligently sold alcohol to an underage person; and (3) even assuming the sale, it was not the proximate cause of the accident. We affirm.

Factual background. "[I]n reviewing the denial of the defendant['s] motions for directed verdict and judgment notwithstanding the verdict, we will construe the evidence most favorably to the plaintiff[s] and disregard that favorable to the defendant." Cimino v. Milford Keg, Inc., 385 Mass. 323, 326, 431 N.E.2d 920 (1982).

On January 7, 2003, Brendan Kneram, William White, Kory Delehanty, and Jeffrey Argonish gathered at Kneram's home while his parents were away. Because Kneram had a false New Jersey identification card (a driver's license), the others each gave Kneram five dollars to purchase beer. Kneram drove to Gateway, located in New Hampshire. Delehanty rode with him and waited while Kneram, who had purchased alcohol at Gateway before, went into the store and purchased a "30-pack" of Busch beer with the pooled money.

Kneram and Delehanty returned to Kneram's home at approximately 4:30 P.M., where White consumed, in the span of a little more than an hour, between seven to ten cans of the Busch beer and a full bottle of wine he had found in the home. Around 6 P.M., the group cleaned the house and placed the empty beer cans, as well as the empty 30-pack carton, in White's sport utility vehicle. Despite being visibly intoxicated, White then drove from Kneram's home to meet some friends. While en route, White struck pedestrians Zinck and Bornstein, killing the former and severely injuring the latter. White fled but was later apprehended by police.

Eight days later, Kneram, accompanied by counsel, went to the Newburyport police station and gave a statement admitting that he purchased the beer at Gateway. Delehanty also made a statement to the police that he had accompanied Kneram to Gateway.

In the course of investigating the accident, the police questioned two employees who were working at Gateway on the evening Kneram purchased the beer. One told police that she might have sold a 30-pack of Busch beer, but to a regular customer between the ages of fifty to fifty-five years. She claimed that she did not recall being presented with a New Jersey driver's license during the evening. The other employee told police that his coworker did ask him the price of a 30-pack of Busch beer, but that the customer was an older person.

Detective Brian Bruneault of the Newburyport police department, who took the statements of Kneram and Delehanty, spoke to the owner of Gateway about examining the register receipts for a record of Kneram's beer purchase. The owner and another woman went to an upstairs office to look through the receipts, while the detective stood near the office door. As they were reviewing the receipts, the owner told the woman, "If you find them, don't say anything." After reviewing the receipts, the owner told police that there was no purchase record for a 30-pack of Busch beer. The detective did not ask for the receipts or for them to be saved. The owner destroyed the receipts.

Discussion. 1. Declaration against interest.⁶ During trial Detective Bruneault was allowed to read into evidence the written statements of Delehanty and Kneram, in redacted form, as statements against penal interest. The judge found that both Kneram and Delehanty were no longer domiciled in Massachusetts, as Kneram was an out-of-State student and resident and Delehanty was serving in the United States military overseas. Additionally, Kneram, both through his attorney and by affidavit, stated that he would, if called, refuse to testify and invoke his privilege under the Fifth Amendment to the United States Constitution.

As a hearsay exception, a statement is admissible as a declaration against penal interest if (1) the declarant is unavailable; (2) "the statement ... so far tend[s] to subject the declarant to criminal liability `that a reasonable man in his position would not have made the statement unless he believed it to be true'"; and (3) the statement, "if offered to exculpate the accused, [is] corroborated by circumstances clearly indicating its trustworthiness." Commonwealth v. Lopera, 42 Mass.App. Ct. 133, 135-136, 674 N.E.2d 1340 (1997), quoting from Commonwealth v. Drew, 397 Mass. 65, 73, 489 N.E.2d 1233 (1986). This rule encompasses not only "direct admission[s] of guilt" but also "disserving statements by a declarant that would have probative value in a trial against the declarant." Commonwealth v. Fiore, 53 Mass.App.Ct. 785, 791, 762 N.E.2d 905 (2002), quoting from Commonwealth v. Drew, supra at 73, 489 N.E.2d 1233.

Since Commonwealth v. Carr, 373 Mass. 617, 369 N.E.2d 970 (1977), Massachusetts courts have frequently considered the application of this hearsay exception in criminal cases. See, e.g., Commonwealth v. Drew, 397 Mass. at 75-76, 489 N.E.2d 1233 (admissibility of statement determined by whether there is some reasonable likelihood that statement could be true, rather than whether it actually is true); Commonwealth v. Pope, 397 Mass. 275, 278-281, 491 N.E.2d 240 (1986); Commonwealth v. Morgan, 449 Mass. 343, 353-357, 868 N.E.2d 99 (2007); Commonwealth v. Alicia, 6 Mass.App.Ct. 904, 905, 378 N.E.2d 704 (1978).

In contrast, however, our courts have addressed the use of the hearsay exception in civil cases on a limited basis. In Atlas Metals Prod. Co. v. Lumbermans Mut. Cas. Co., 63 Mass.App.Ct. 738, 746 n. 8, 829 N.E.2d 257 (2005), the court, citing a criminal case, Commonwealth v. Drew, supra at 73, 489 N.E.2d 1233, applied the hearsay exception and stated in a footnote that an employee's statement was properly admitted as a declaration against her penal interest. In Flood v. Southland Corp., 416 Mass. 62, 616 N.E.2d 1068 (1993), the court refused to apply the exception because the declarant was available. Id. at 69 n.9, 616 N.E.2d 1068. Similarly, in Fire Commr. of Boston v. Joseph, 23 Mass.App.Ct. 76, 498 N.E.2d 1368 (1986), the court noted that the statements lacked the necessary corroboration to be admitted. Id. at 80 n.5, 498 N.E.2d 1368. See Kettenbach v. Demoulas, 901 F.Supp. 486, 500 n. 14 (D.Mass.1995).

Here, the judge was correct in ruling that the facts supported application of the "statements against interest" hearsay exception. The judge concluded, after an extensive voir dire, that the declarants were unavailable⁷ and that the statements were sufficiently against their penal interests such that "reasonable m[e]n in [their] position would not have made the statement[s] unless [they] believed it to be true." Lopera, supra at 135, 674 N.E.2d 1340, quoting from Commonwealth v. Drew, supra. The judge's careful attention is further evidenced by the extent of hearing and arguments, as well as his careful redaction of those portions of the statements which, in his view, did not properly fall within the hearsay exception. See Commonwealth v. Marrero, 60 Mass. App.Ct. 225, 228-231, 800 N.E.2d 1048 (2003) (entire statement to police properly not admitted where only portion of statement was actually against declarant's penal interest and that portion was not relevant to "matters at hand in the trial").

As stated above, we have implied that corroboration of inculpatory statements is required in civil matters. Fire Commr. of Boston v. Joseph, supra ("[G]iven the hearings officer's conclusions concerning a lack of evidence to corroborate any of the hearsay presented, ... it is unlikely that he would have admitted the statement as one against penal interest"). For purposes of this case, we will also assume, without deciding, that the corroboration requirement applies to the statements. In determining whether there is sufficient corroboration, a judge should "assess the credibility of the declarant ... and ... admit a statement if `there is some reasonable likelihood that the statement could be true.'" Commonwealth v. Weichell, 446 Mass. 785, 803, 847 N.E.2d 1080 (2006), quoting from Commonwealth v. Galloway, 404 Mass. 204, 208, 534 N.E.2d 778 (1989). "If the issue of sufficiency of ... corroboration is close, the judge should favor admitting the statement" and rely on "the good sense of the jury [to] correct any prejudicial impact." Commonwealth v. Drew, supra at 75 n. 10, 489 N.E.2d 1233.

There was sufficient corroboration of the statements in this case. First, Detective Bruneault testified that he tracked the lot number on the beer carton (purchased by Kneram and found in White's car) to a shipment of cases sent to southern New Hampshire, where Gateway is located. More convincingly, Detective Bruneault also testified that the lot number matched those on other 30-packs in the Gateway store. We conclude that this evidence alone is sufficient to corroborate Kneram's and Delehanty's statements that Kneram purchased the beer at Gateway.

For these reasons, the judge correctly ruled the statements admissible.

2. Negligence....