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

The Lawsuit Discovery Conumdrum
What happens when the parties to a lawsuit refuse to follow the rules?

Jurors: What Are They Thinking and What AreThey Doing?
Jurors, and Social Media: When jurors base their verdict on information outside the facts offered as evidence at trial.

Who’s In Charge?
Alcohol Liabilty At Concert and Stadium Events

What’s Going On In A Trial?
How does it begin? What are the steps that lead to the selection of a jury? Who participates? What are the criteria for arriving at a decision?

“Reply To All”: Use At Your Own Risk
Did you ever hit “reply to all” when you meant to hit only “reply.”?

How Do You Define The Word Merge?
When two roadways angle toward each other in the same direction the drivers are urged by traffic signs to “merge”. What is meant by this instruction?

Lawyers Weekly Press

Trial Report Plus: Injured Pedestrians Settle With Drunk Driver's Parents

Can pedestrians who were struck by a car driven by an intoxicated 20-year-old successfully pursue a negligent-supervision claim against the driver's parents?

A recent $300,000 settlement indicates that the answer is yes.

The two plaintiffs negotiated the settlement with the parents' homeowners' insurance carrier, which had initially denied coverage. The driver was a student who lived with his parents.

The key to the case was convincing the insurance company that the parents assumed a duty to supervise the student, even though he was legally an adult, according to Marshfield attorney Paul J. Driscoll, who represented one of the plaintiffs.

"There is no magic age of majority," Driscoll stated. "In the present case, [the student] was living at home and Mom and Dad imposed restrictions, such as a nighttime curfew, and also controlled the use of the car."

Boston attorney David P. Dwork, who represented the other plaintiff, observed that another critical fact was that the parents were aware that their son had a prior history of alcohol abuse and auto accidents.

"Under the circumstances of the case, the parents imposed a duty on themselves," Dwork told Lawyers Weekly.

The case, with its name withheld pursuant to the terms of the settlement agreement, was published in the Trial Reports Section of the Sept. 29 issue of Lawyers Weekly. 9299727

Pedestrians Struck

On Oct. 5, 1991, plaintiffs John F. Otis III and Shannon T. O'Malley and were attempting to cross Route 18 in Weymouth when they were struck by an automobile operated by a 20-year-old college student.

As a result of the accident, each of the plaintiffs suffered severe injuries. Since the accident, Otis has had numerous surgeries. O'Malley was hospitalized for an extended period of time and suffered a permanent disability from a traumatic brain injury.

At the time of the accident, the defendant driver was living at home with his parents, where he had lived all his life. He was a full-time student, worked part-time and was financially dependent on his parents.

The parents were allegedly aware that their son had a drinking problem and had been involved in several prior car accidents.

The car involved in all the accidents -- a 1985 Chevrolet Caprice -- had been owned by the driver's mother. The title and registration had been transferred to the driver as a high school graduation gift.

"Even after this transfer, however, the defendant parents still reserved control over the vehicle and the plaintiff's right to use it, imposed a 1:00 AM curfew on [the driver], and would take the car away from [the driver] as a disciplinary measure," a legal memorandum prepared by the plaintiffs said. "In addition, even after the transfer, it appears that [the parents] continued to pay some or all of the expenses for the vehicle, including automobile insurance on the vehicle."

Suit Filed

The plaintiffs filed suit against the driver, the bar that served him on the night of the accident and the defendant parents.

The tavern owner, who had no insurance, settled for $537,000. The driver's automobile-insurance provider paid the limits of the driver's $50,000/$100,000 policy.

The plaintiffs alleged that the parents were liable for their injuries on theories of negligent entrustment and negligent supervision.

The parents argued that the car belonged to the their son, and, therefore, there was no negligent entrustment. The plaintiffs countered that the car actually still belonged to the mother.

In reference to the negligent-supervision claim, the defendant parents asserted that they were not responsible for the actions of their adult son.

Relevant Caselaw

In researching their claims against the parents, plaintiffs' counsel discovered that, under Massachusetts caselaw, parents will not generally be held responsible for the conduct of children who are emancipated.

In a 1988 decision, Alioto v. Marnell, the Supreme Judicial Court declined to impose liability on the parents of a 19-year-old who was the cause a fatal drunk-driving accident.

In so ruling, the Alioto court observed that "[the defendant driver], although below the legal drinking age, was not a minor, but an adult. ... He had graduated from high school some seventeen months earlier, had been working full-time for at least fourteen months, and was in all relevant respects emancipated from his parents. The fortuity of his living in their home does not create a duty where none otherwise exists." (emphasis added)

In a 1989 Appeals Court case, McDonald v. Lavery, et al., a man shot by a 27-year-old alcoholic who lived in his parents home sued the parents for negligent supervision, alleging that the parents knew of the son's violent propensities and drinking problem.

In finding the parents not liable, the court concluded that the son was emancipated because he: was 27; had graduated high school 10 years earlier; attended the Massachusetts Maritime Academy and had been working full-time "on and off" for several years.

Relying on these cases, the parents homeowners' insurance carrier initially denied coverage.

In arguing that the driver in their case was not emancipated, plaintiffs' counsel emphasized that, not only did he live at home with his parents, but he also:

  • was completely financially dependent on them;

  • had his auto insurance paid by his mother; and

  • was subject to a curfew and other parental rules.

In addition, Dwork observed, despite the fact that the parents had "ample notice" of their son's drinking, they did not take steps sufficient enough to make him control it.

Driscoll said the settlement in this case illustrates that, under the right circumstances, a parent's duty to monitor a child goes well beyond the age of 18.

Falmouth lawyer Ronald S. Beitman, who has handled a number of dram-shop liability cases, observed that negligent-supervision cases against parents of drunk drivers are difficult to win, particularly if the driver is over the age of 18.

"Even though an individual may be underage for drinking purposes, he is old enough to vote," Beitman stated. "In fact, [in denying such claims], some courts have cited a whole litany of things that an 18-year-old can do that makes him an adult."

Even if the claim makes it to a jury, "from a juror's perspective, a 20-year-old is an adult," he said.

Beitman advised that, in order to prevail or successfully settle a negligent-supervision claim against someone over 18, plaintiffs' counsel should emphasize factors showing the defendant was not emancipated, such as the parents paying for the car.

Boston attorney Arthur F. Licata observed that a parent's liability for the drinking of an unemancipated 20-year-old remains "an open question" in Massachusetts.

"However, courts have increasingly shown they will not tolerate underage drinking," he observed, citing a 1996 Supreme Judicial Court case in which he represented the plaintiff, Tobin, et al. v. Norwood Country Club Inc.

Tobin involved a suit brought by a the estate of a minor who had become intoxicated after consuming drinks bought by other guests at a private party. After leaving the defendant country club, the minor stumbled onto a highway and was killed by a car.

The Tobin court ruled that the club owner owed the deceased minor a duty of care to refrain from making alcohol available to her and that it was foreseeable that she would receive alcohol through other guests, despite the fact that there was no direct service or selling of alcohol to the minor.

Insurance Trouble

In addition to the liability issues, there was another obstacle in getting the parents' homeowners' insurance carrier to settle in the case handled by Dwork and Driscoll -- the potential applicability of a standard "auto exclusion" in the policy excepting from coverage accidents arising out of the use of an automobile.

"It was pretty clear that the negligent-entrustment claim would be found to be excluded [from coverage] under the broad policy language," Dwork observed.

Driscoll noted that "at trial, the plaintiffs intended to stress their negligent supervision claim" so that there would be insurance coverage available.

Another strategy used by the plaintiffs to settle the case was to argue that the parents' homeowners' insurance carrier was potentially on the hook for $600,000 under the policy, which provided for coverage of $300,000 per occurrence.

Driscoll asserted that, under the "effect" rule, each separate time the driver's vehicle hit an individual should constitute a different "occurrence," triggering another $300,000 in coverage.

The insurance carrier advocated the use of a "cause" rule, which would calculate all of the injuries occurring from a single cause -- that is the driver's drunk driving -- to be a single occurrence.

"The Supreme Judicial Court has not applied either rule to the facts presented here, but has found conduct over a length of time to be separate 'occurrences,'" noted Driscoll.

Driscoll said he believes the "occurrence" argument and the potential for increased exposure for the insurance company "was instrumental in motivating the insurance company to settle."

Suing Passenger In DUI Case A Unique Strategy

A Falmouth lawyer representing the family of a man killed by a drunk driver was recently able to increase the case's settlement value by using a rather unique strategy -- suing a passenger in the drunk driver's car.

Plaintiffs' lawyer Ronald S. Beitman initially sued the drunk driver and the bar which served the driver, both of which had inadequate funds and insurance to cover a large judgment or settlement.

Beitman settled with the driver and bar, and then turned his attention to the passenger.

The day before the accident, the passenger had returned to his parents' home after completing a stint in the military. The following night, he and the driver, who were friends, went to a bar "to celebrate" and consumed a number of alcoholic beverages, including shots of tequila.

"We were prepared to prove that, but for [the passenger], the driver never would have drank tequila," Beitman observed. "[The driver] typically just drank beer."

After leaving the bar, the driver entered Route 3 on an exit ramp and proceeded southward on a northbound section of the road. The driver's car soon collided with the BMW of the decedent. The defendant driver was determined to have a blood-alcohol level of 3.1 and the passenger's level registered as 2.9.

Beitman argued that coverage was available under the homeowners' policy of the passenger's parents because the passenger had become a "household resident" when he returned from military service the previous day.

The insurance company was "very reluctant" to settle the claim, arguing that the driver had essentially bought his own drinks because the two friends took turns buying "rounds" for each other.

"I think it was the tequila that made the difference [in getting a settlement]," observed Beitman.

The name of the case and terms and amount of the settlement are confidential under the settlement agreement.

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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