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All Things In Moderation:
The Serving of Alcohol By Bars In The City Of Boston

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Lawyers Weekly Press

Country Club Liable For Drinking Death - Should Have Known Minors Got Alcohol

Where a country club didn't serve drinks to underage guests but knew or should have known that adult guests were giving drinks to minors, the club was liable for the death of a teenager who became intoxicated at a club function, wandered on to a road and was struck by a passing car, the Supreme Judicial Court has held.

A trial judge had thrown out a jury verdict against the club, believing that only "hand to hand" service of alcohol to a minor could trigger liability.

But the SJC reinstated the verdict, saying direct service to a minor was not necessary to impose liability.

"A business that makes money by serving liquor where teenagers are known to be present is not engaging in an ultrahazardous activity, but the situation is so fraught with foreseeable risk that a business that is in a position to control or reduce that risk has a duty to do so," wrote Justice Charles Fried.

In dissent, Justice Francis P. O'Connor -- joined by Justice Neil L. Lynch -- said he "simply [did] not agree with the court's statement that `the record offers sufficient facts to have allowed a jury to conclude that the defendant, ... 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.'"

The case is Tobin, et al. v. Norwood Country Club, Inc., Lawyers Weekly No. 10-034-96.

`Hand To Hold'

Arthur F. Licata of Boston, who represented the plaintiff, said that the decision represents the first time the SJC has considered whether liability may be established when a commercial establishment furnishes alcohol to a minor in the absence of a "hand to hand" transaction.

"Commercial purveyors of alcohol must continue to have an economic incentive to do the right thing," explained Licata. "They must act vigilantly and aggressively in areas where alcohol and minors are present."

Licata said he hoped that the SJC's ruling would encourage sellers of alcohol to become even more diligent in monitoring of underage drinking in an era where efforts to curb such violations are already pervasive.

"We have more readily acknowledged that alcohol is a legally dispensed drug, and that minors are a susceptible class," he noted.

Philip E. Murray Jr. of Boston, who represented the defendant, said that "this is simply a poorly reasoned decision."

Murray attacked what he deemed to be the SJC's failure to identify the point in time at which the defendant was negligent.

"There is no evidence that the decedent got a drink after the club knew or should have known that minors were drinking," argued Murray. "Nor is there evidence that the decedent was still on the premises at that point. ... As a matter of social policy you'd like to prevent [such incidents], but I don't think this decision is a sensible way of doing that."

Beverly lawyer Lori A. Cianciulli, Murray's cocounsel, predicted that "the way [the SJC] expanded the liability is going to make it virtually impossible for any function hall to meet the standard. I think it's a grossly unreasonable burden."

Cianciulli asserted that the trend in recognizing liability for serving minors alcohol may have gone too far.

"The earliest liquor liability cases were so clear-cut," she explained. "[But] this has gotten so far away from the core of liquor liability law. ... This is the kind of case that has people scratching their heads and wondering if the pendulum has swung too far."

Braintree lawyer Frank J. Riccio, who in 1994 obtained a $4.75 million verdict in a liquor liability case, said that Tobin is "a very important decision because it allows plaintiffs to take the totality of what happened in a given event and show that a minor was served alcohol."

The country club in this case was "clearly understaffed," according to Riccio.

"The SJC is saying, `Look, if you're serving alcohol you have to do more,'" he explained.

Riccio said that the decision reflects an important policy concern -- that establishments have to be "reasonable under the circumstances, especially relating to minors. You're protecting your own children."

George A. Caporale Jr. of Revere, a lawyer who in 1994 successfully defended a case of liquor liability, said that the SJC is "trying to make a statement that underage drinking will simply not be tolerated under any circumstances."

The ruling, however, is "incorrect," according to Caporale, who said that "when you have a set of facts like this you have to go out of your way to find for the plaintiff."

Caporale pointed out that the ruling may unduly burden bars and taverns which would be devastated by such lawsuits and added that "we really have to look at who is genuinely at fault. I don't think it's the commercial establishment."

David P. Dwork of Boston, who settled a case against a bar for liquor liability for more than half a million dollars, downplayed the impact of the decision.

"Where you sell and dispense alcohol you can't shut your eyes," asserted Dwork. "I don't think it's onerous for these clubs. ... They've always been held to that standard."

Tragedy Club

The defendant in the case, Norwood Country Club, was a commercial establishment that among other things served meals and alcoholic beverages to the general public.

On Sept. 5, 1987, the defendant had made one of its rooms available for an evening party intended to combine a family reunion with the 85th birthday party of one of the family members. A bartender at the club and a relative of the family arranged for the use of the function room at the club for the party.

The bar for the party was in a separate room and the relative arranged for a regular bartender at this club to serve as bartender for the evening so that he could attend the party as a guest.

The relative asked family members to help him police the party to make sure there was no underage drinking.

The bartender could not see the function room from the bar, where she was serving the drinks to both the guests at the party and the public guests of the club. She did not enter the function room during the evening to check if there were any alcohol-related problems, believing the relative to be her manager that evening.

At least six of the guests were minors. The decedent was 17 years old at the time of the party and came as the date of one of the family members who was 16.

In the course of the party, which lasted from 7:00 p.m. until after midnight, the deceased consumed enough alcohol to raise her blood alcohol level to .229. The bartender said that she neither served anyone who appeared to be a minor nor saw anyone she did serve hand a drink to a minor.

At the close of the party, the decedent had an argument with her date and left the club on foot. She began walking in the breakdown lane of the highway on which the club was situated.

Several of the other teenagers at the party left the party in a borrowed van in search of a place to continue their drinking. When they encountered the decedent walking in the breakdown lane, they stopped the van and tried to persuade her to get in.

When she continued to walk on they followed, pulled ahead of her and stopped. The decedent walked in front of the van, pounded on the front hood and then veered diagonally toward the center of the highway. She was struck by a passing vehicle and suffered injuries from which she died two days later.

A jury returned a verdict for the plaintiff that the judge reduced by the 40 percent the jury had found to be the decedent's contributory negligence.

The trial judge then granted judgment for the defendant notwithstanding the verdict, agreeing with the defendant that there was no evidence that permitted "a conclusion that the defendant sold or delivered alcohol to someone it knew at the time of sale or delivery was acting only as an intermediary for [the minor]."

Minor Problem

The SJC has held that the mere fact that a minor is consuming alcohol on an establishment's premises does not trigger a duty to that minor or to those harmed by the minor's alcohol influenced actions, Fried said.

"Where a commercial establishment sold alcohol to a minor, however, we did not hesitate to impose a duty of care flowing to the public," the judge explained.

However, Fried stated that the court had not considered whether there can be liability where a commercial establishment furnishes the alcohol to a minor in the absence of an actual "hand to hand" transaction or its equivalent.

The judge revealed that "[t]he risk here is great and commonly known to be great."

The vendor is in the business of supplying the substance that creates the risk, Fried reasoned, and it has the experience and opportunity to take steps to minimize it.

"In other situations where these factors are present," said the judge, "we do not hesitate to impose a duty of care on a person who participates in the creation of a known or knowable risk and who is well situated to mitigate it."

Fried concluded that in the circumstances of the present 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," stated the judge. "The duty is breached when the establishment knew or reasonably should have known that it was furnishing alcohol to minors."

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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