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Lawyers Weekly Press

Negligence - Liquor Liability - Country Club - Minor

Where (1) the plaintiffs' minor decedent, while a guest at a private party held at the defendant country club, became intoxicated by consuming drinks purchased by other guests at the defendant's bar and was later killed by a car when she walked onto a highway, (2) a jury returned a verdict in the plaintiffs' favor on a negligence claim against the defendant and (3) the trial judge granted the defendant's motion for judgment notwithstanding the verdict, we conclude that it was error for the trial judge to enter judgment for the defendant notwithstanding the verdict, as the evidence was sufficient to support the jury's determination that the defendant breached its duty to refrain from making alcohol available to the deceased minor.

The order allowing the defendant's motion for judgment notwithstanding the verdict is vacated.

Finding that the judge did not err in earlier reducing the verdict in an amount proportionate to the minor's contributory negligence, we reinstate the verdict as so reduced.

Standard Of Care

"... [W]e hold that in the circumstances of this case the club owed the deceased minor a duty of care to refrain from making alcohol available to her, an act that unreasonably increased the risk of harm to her. The triggering of the duty is not limited to the circumstance of hand to hand selling or serving of alcohol as the Superior Court judge held. The duty is breached when the establishment knew or reasonably should have known that it was furnishing alcohol to minors. The club's knowledge is measured by the cumulative knowledge of its employees. That the standard is formulated to include what the establishment `reasonably should have known,' permits the jury to hold the establishment to the knowledge it should have had, had it taken reasonable precautions to prevent minors from drinking alcohol. If the jury find that the establishment knew or reasonably should have known that the establishment was furnishing alcohol to minors, the establishment has breached its duty of care and, if causation is established, may be held responsible for the injuries and damage caused by the minor's alcohol-influenced actions, whether to the minor or to others."

Contributory Negligence

"Because we apply the general law of negligence here, it is wholly appropriate that the principle of contributory negligence apply in full force to reduce any liability. Certainly the recovery on behalf of the decedent's estate is appropriately reduced by the decedent's own contributory negligence. The question is raised whether the plaintiffs' wrongful death action is similarly effected. The plaintiffs argue that, since theirs is an independent action based on their own loss, the decedent's contributory negligence should not operate to reduce their recovery, and they adduce two Superior Court memoranda that support their position. Whatever the logical force of this argument, G.L. c. 231, § 85 (1994 ed.), which addresses `any action by any person or legal representative to recover damages for negligence resulting in death or injury to person or property,' specifically provides that `any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose ... death recovery is made.'

"The language of the statute is plain and leaves no room for the plaintiffs' argument. The Superior Court judge below correctly ruled that all damages, not just those of the estate on behalf of the decedent herself, must be reduced in accordance with c. 231, § 85. ..."

Evidence Of Negligence

"There may not have been enough evidence to allow the jury to conclude that [defendant's bartender Patricia] Erwin knew or had reason to know that any particular drink was reaching a particular minor. Perhaps even [defendant's agent Paul] Moran was not shown to have seen an adult hand a drink to a minor or even seen a minor lift what Moran should have known was alcohol to his or her lips. But the duty of care does not require such specificity, and, regardless of the judge's intentions, neither did his instructions. From the evidence, a jury could have concluded that the club breached its duty and that causation was established under the instructions as given. The evidence reveals that the club relaxed its normal procedures to accommodate a family party of one of its employees, something the club had never done before. [Supervisor of bartenders Michael] Mercer allowed the [guests] to use the room free of charge, and more guests showed up than the club expected. In violation of club policies, Erwin sold multiple drinks on numerous occasions, and on at least three occasions permitted a minor to carry drinks from the bar. The record also indicates that on another occasion, the club had set up a bar in the function room so that the bartender could monitor the guests; on this night they decided not to. On other nights, the bartender walks through the function room; on this night only Moran entered the room. Finally, in violation of club rules, Moran drank at least three alcoholic drinks while on duty. Yet, the club and Erwin, working only for tips, maintained a financial incentive to serve as many drinks as were ordered.

"... [T]he record offers sufficient facts to have allowed a jury to conclude that the defendant, through its agent Moran, knew or should have known -- certainly long before the party came to an end and the several drunken teenagers were leaving -- that there had been considerable underage drinking. Without having to specify the precise point at which this should have been evident or what precisely should have been done at the end of the party or at some earlier time, it is clear that Moran did nothing to head off the tragedy that eventually -- and foreseeably -- occurred. At an earlier point in the evening the underage drinking should have been shut down. By the end of the evening, Moran might have enlisted the adults present to monitor the teenagers' departure, since that was the occasion of real and obvious danger. His negligence, which is the negligence of the defendant, depends therefore on no practices or industry standards but on the foreseeability of harm and failure to take any measures to avoid it."


"The judgment notwithstanding the verdict shall be vacated and the jury verdict reinstated."

Dissenting Opinion

Dissenting, O'Connor, J., joined by Lynch, J. "I agree with the court that the [defendant] Norwood Country Club owed the deceased minor, who was a guest at the club, a duty to refrain from conduct that would unreasonably expose her to a risk of harm, including a risk of bodily injury or death, as a consequence of her consumption of alcoholic beverages provided by the club. Thus, if there had been evidence that, in violation of G.L. c. 138, § 34, a club employee sold or delivered alcoholic beverages to the deceased minor the jury would have been warranted in finding negligence. However, there was no such evidence in this case. Indeed, there was no evidence that any club employee knew that minors were obtaining alcoholic drinks from any source. The question in this case, then, is whether, on any reasonable view of the evidence most favorable to the plaintiffs, the jury would have been warranted in finding that the club's employees, failure to make a timely discovery of the deceased minor's consumption of alcoholic beverages and to prevent its continuation and therefore the tragedy that ensued was due to the employees' lack of ordinary prudence. I would answer that question, `No.' I would affirm the judgment for the defendant."

Tobin, et al. v. Norwood Country Club, Inc. (Lawyers Weekly No. 10-034-96) (30 pages) (Fried, J.) (O'Connor, J., with whom Lynch, J., joins, dissenting) Case tried before O'Toole, J.; Arthur F. Licata and Kevin P. Conway for the plaintiffs; Philip E. Murray Jr. and Lori A. Cianciulli for the defendant (Docket No. SJC-06919).

The Boston, Massachusetts Personal Injury Law firm of Arthur F. Licata, P.C. handles Lawyers Weekly Press for clients throughout Massachusetts including Suffolk County, Norfolk County, Plymouth County, Middlesex County, Worcester County, and Essex County, and cities such as Worcester, Springfield, Lowell, Cambridge, Brockton, New Bedford, Fall River, Lynn, and Quincy. Mr. Licata is also admitted to practice in the state of New York. He routinely takes cases by referral from other attorneys located throughout the New England region and the United States.

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