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

The Lawsuit Discovery Conumdrum
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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

Tavern Not Liable For Rape Of Female Patron - Woman Injured After She Left Bar Drunk

A tavern owner could not be held liable for the beating and rape suffered by a female patron after she left the bar visibly drunk, the Appeals Court has ruled.

The plaintiff argued that it was a question of fact whether the tavern proximately caused her injuries by serving her alcohol while she was intoxicated.

But the Appeals Court disagreed, concluding that no evidence demonstrated the rape of the plaintiff by two men having no connection to the bar away from its premises was reasonably foreseeable.

"We are aware of no Massachusetts appellate decision holding that a tavern owner may be found liable for an intoxicated patron's injuries that were caused by a criminal act perpetrated off the tavern premises by individuals with no connection to the tavern," wrote Chief Justice Christopher J. Armstrong.

The seven-page decision is Westerback v. Harold F. LeClair Co., Inc., Lawyers Weekly No. 11-202-00.

Tort Boundaries

Andrew D. Myers of Andover, counsel for the defendant tavern, said the decision properly sets boundaries to liability in dram shop cases.

"The plaintiff was trying to extend her case beyond the limits of tort law," Myers asserted.

But H. Ernest Stone III of Wenham, the plaintiff's attorney, criticized the court for drawing an artificial distinction between injuries inside -- the tavern and those occurring outside the premises.

"It's unfair for the court to say that the threshold is the door, and if you make it there you are on your own," Stone contended.

He also said the ruling signifies "that the court is going to be more restrictive in allowing juries to hear negligence cases," which is troubling because "there is a real danger in taking the question of foreseeability away from the jury."

Plaintiffs' attorney Arthur F. Licata of Boston advised lawyers handling similar dram shop cases to diligently prepare the factual record before filing suit.

"It will be the accumulation of facts which will convince the trial judge that summary judgment is not appropriate," Licata said.

Boston attorney Scott Tucker observed that the decision leaves open the possibility that a tavern could still be liable to a patron injured by a third party physically closer to the premises.

"The line the court is drawing is more one of how far they are not prepared to go," Tucker noted.

The Attack

After consuming approximately a dozen twelve-ounce bottles of beer in the course of a day, the plaintiff, Carol Westerback, accompanied a friend to the defendant's tavern, Gus and Paul's.

Over the next three and one-half hours, the plaintiff apparently had two drinks of hard liquor and five more twelve-ounce beers.

The plaintiff was visibly drunk. She had difficulty walking, kept falling down, appeared depressed and had slurred speech.

When the plaintiff eventually left the bar she could barely walk and had to be helped to the door.

As she walked home, two men in a van saw the plaintiff staggering down the street and offered her a ride.

The plaintiff accepted the invitation, but she later said in an affidavit that she would not have done so if she had not been intoxicated.

The men drove the plaintiff to a friend's trailer where they beat and raped her and then left her nude in the woods.

When the plaintiff was taken to the hospital by the police the next day, her blood alcohol content was .248.

The plaintiff subsequently sued the defendant, Harold F. LeClair Co., Inc., for negligence and negligent infliction of emotional distress, contending that her injuries resulted from having served her alcohol knowing she was intoxicated in violation of G.L. c. 138, Sect. 69.

Superior Court Judge Carol S. Ball later allowed the defendant's motion for summary judgment.

No Foreseeability

The court affirmed the summary judgment on the basis that the plaintiff's injuries were not proximately caused by the defendant.

"Generally, the act of a third person in committing an intentional tort constitutes a superseding cause of harm ..., even though the [defendant]'s conduct created a situation which afforded an opportunity to the third person to commit such a tort or a crime," wrote Armstrong.

However, if the defendant realized, or should have realized, that such a situation would occur liability will be imposed, noted the judge.

"The specific kind of harm need not be foreseeable ... provided it was foreseeable that there would be violence toward others," he said.

The judge acknowledged that questions of foreseeability are ordinarily left to the jury, but they can be resolve don summary judgment if the alleged harm suffered "is sufficiently remote in everyday life as not to require special precautions for the protection of patrons."

He cited the 1994 Supreme Judicial Court decision of Whittaker v. Saraceno, in which a commercial landlord of a building in a low-crime area was held not liable for the rape of a woman by an intruder.

"In our view, the judge here ruled correctly that this was not a case in which the rape should have been foreseen and guarded against by the proprietor of the tavern," he wrote.

Armstrong noted two lines of cases in which criminal or tortious behavior have been held sufficiently foreseeable as to warrant imposing liability on taverns.

"One is where injuries result from the acts of drunken patrons on premises, whether the drunk inflicts the injuries ... or is himself the injured party," he stated. "The second group is where a drunken patron inflicts injuries on others by negligent driving after leaving the premises."

By contrast, the judge observed, there are no appellate decisions in Massachusetts which have held a purveyor of alcohol liable for an intoxicated patron's injuries that were caused by a criminal act off the premises by persons with no connection to the tavern.

"Most decisions in which proprietors have been held liable to their patrons for criminal acts of others are those in which the proprietor fails to provide reasonably needed security precautions in or just outside the premises, thus laying patrons ... open to injury or loss," he wrote.

Armstrong cited several premises liability cases where negligence was found, including the 1983 SJC decision Mullins v. Pine Manor College and the 1994 SJC decision Fund v. Hotel Lenox of Boston, Inc.

"In ... those cases, the crime that injured the patron ... took place on or just off the premises of the proprietor found to be liable, in circumstances where the nature or condition of the premises called for security to ward off foreseeable criminal activity," the judge wrote.

Armstrong pointed out that factors demonstrating foreseeability include:

* a history of criminal episodes;

* unruly behavior of one or more persons on or just off the premises;

* failure to provide lighting in secluded areas; or

* failure to provide security in places where it is to be expected.

The judge found that the rape of the plaintiff could be reasonably foreseeable if one inferred that people who are drunk are more likely to be targeted by criminals simply because they are more vulnerable.

"A real difficulty with permitting a jury to draw such an inference is that most persons who drink alcoholic beverages are, to some extent, temporarily impaired, even if only slightly; the question of how impaired would inevitably be one for the jury; and owners and managers of taverns ... would in effect become the insurers of their patrons against criminal attacks," Armstrong concluded.

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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