Opinion
19-P-1355
08-11-2020
PATRICIA HOMAN v. BRANDY BARREL PUB & GRILL, INC., & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this dram shop liability case, the plaintiff appeals from the Superior Court's grant of summary judgment in favor of the defendant Brandy Barrel Pub & Grill, Inc. (Brandy Barrel), where she proffered an expert report stating that the four drinks she consumed before injuring herself contained the equivalent of ten shots of alcohol. We conclude that this evidence is not sufficient to allow the jury to infer that the plaintiff would have appeared visibly intoxicated when she was served her last drink. We therefore affirm the summary judgment in favor of Brandy Barrel.
The judgment entered under Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974), as to count II of the plaintiff's complaint and as to Brandy Barrel only. The remaining defendants and claims, with the exception of a single count against defendant Hospitality Mutual Insurance Company (which count was severed and stayed), were dismissed separately pursuant to stipulation; none of these additional claims and defendants are at issue in this appeal.
1. Background. The facts, viewed in the light most favorable to the plaintiff and drawing all permissible inferences in her favor, see Douillard v. LMR, Inc., 433 Mass. 162, 163 (2001), follow.
The defendant operates the Brandy Barrel, a bar in the city of Lynn. The plaintiff was injured when she fell in the Brandy Barrel parking lot at approximately 1 A.M. on Sunday, August 3, 2014. Bystanders called an ambulance, and the plaintiff was transported to North Shore Medical Center's Union Campus. She arrived at approximately 1:30 A.M. The hospital staff observed that the plaintiff appeared intoxicated and had slurred speech. She was transferred to Massachusetts General Hospital (MGH) for treatment. The plaintiff's blood alcohol concentration (BAC) upon admittance to MGH was 285 milligrams per deciliter, serum ethanol, or .23. The plaintiff's expert calculated the plaintiff's BAC to be .275 at the time she fell.
For comparison, a person operating a motor vehicle in Massachusetts will be found to be impaired with a BAC of .08 or higher. G. L. c. 90, § 24.
Earlier that evening, the plaintiff had attended a bingo game with friends. During the game, she ate a sandwich and snacked on peanut butter crackers. After bingo, she and her friends went to the Brandy Barrel for drinks. They arrived at approximately 10 P.M. on Saturday, August 2, 2014, and stayed for three hours, into the early hours of August 3, 2014. While at the Brandy Barrel, the plaintiff ordered what she described as her "usual" -- "tall Madras cocktails," a mixed drink containing vodka, cranberry juice, and orange juice. She did not eat anything.
The plaintiff's drinks were prepared by the only bartender working at the Brandy Barrel that evening. As of 2014, the bartender had worked at the Brandy Barrel for approximately thirteen years. She had known the plaintiff for nine or ten years and was typically the bartender working when the plaintiff visited the Brandy Barrel after Saturday night bingo games. The bartender had been trained to use a one and one-half ounce shot glass to measure the amount of alcohol poured into a mixed drink. But, by the date of the accident, the bartender had switched to preparing drinks using either a counted pour or her knowledge of how high a particular glass should be filled with alcohol. The plaintiff refers to these techniques as "free pouring" because neither involves a measuring implement. To prepare a tall Madras, the bartender would fill a twelve ounce glass with ice and then pour the vodka to the midpoint of the glass before adding the cranberry and orange juices.
The expert opined that one drink equals twelve ounces of beer, five ounces of wine, or one and one-half ounces of eighty proof hard liquor. Because the evidence was that the alcohol content in each of these drinks is equal, they are treated as equivalent and each is referred to as one "unit of alcohol."
Over the course of her time at the Brandy Barrel, the plaintiff consumed three or four drinks which contained a total of ten shots of vodka (or two and one-half shots per drink, on the basis of four drinks). The plaintiff ordered her last drink at "last call," at approximately 12:30 A.M., and consumed the entire drink before leaving the bar.
The plaintiff testified that she did not feel intoxicated while at the Brandy Barrel and had no problems maintaining her balance when she got up to use the restroom, to talk to other patrons, or to leave for the night. Other witnesses who were in the bar that night testified that the plaintiff did not appear intoxicated. The plaintiff's expert did not calculate what the plaintiff's blood alcohol content would have been at 12:30 A.M. when she ordered her last drink.
The plaintiff describes herself as a "moderate" drinker. Before the accident, she frequented bars, including the Brandy Barrel, several times a week. At the Brandy Barrel, she generally consumed three tall Madras cocktails. There was no testimony as to the number of drinks required to make the plaintiff intoxicated or how the plaintiff behaved when intoxicated. One of the plaintiff's friends testified that she could not recall ever seeing the plaintiff visibly intoxicated. The expert opined that the plaintiff's drinking history "would make her less impaired [at a given BAC] than an individual who is not a frequent alcohol drinker."
Discussion. On appeal, the plaintiff argues that (1) a jury could reasonably infer that the plaintiff appeared visibly intoxicated when she was served her last drink based upon her excessive consumption of alcohol, which the plaintiff's expert testified amounted to ten shots of vodka over a three-hour period; and (2) the bartender's free pouring technique, which, according to the expert's calculations, resulted in two and one-half shots of vodka in each of the plaintiff's cocktails, was willful, wanton, or reckless because it created the risk that patrons would unknowingly consume more alcohol than intended.
We review an order granting summary judgment de novo. Bayless v. TTS Trio Corp., 474 Mass. 215, 219 (2016). "Summary judgment is appropriate when the moving party demonstrates, by reference to materials listed in Mass. R. Civ. P. 56 (c), [as amended, 436 Mass. 1404 (2002)], that the nonmoving party, who will have the burden of proof at trial, lacks sufficient evidence to establish an essential element of his or her claim." Vickowski v. Polish Am. Citizens Club of Deerfield, Inc., 422 Mass. 606, 609 (1996). Here, summary judgment was properly granted because the plaintiff lacked sufficient evidence from which a jury could reasonably find that her intoxication was apparent when the bartender at the Brandy Barrel served her last drink -- an essential element of her dram shop liability claim.
General Laws c. 231, § 85T, limits the liability of establishments licensed to sell alcohol to patrons who injure themselves while intoxicated. To recover for "damages caused by or arising out of the negligent serving of alcohol to an intoxicated person" a plaintiff who injures herself while intoxicated must prove "wilful, wanton, or reckless conduct on the part of the licensee." G. L. c. 231, § 85T. This requirement "reflects the Legislature's unwillingness to allow a person who has voluntarily and responsibly put himself into a condition where his judgment and functioning are impaired to cast the blame on others, when he suffers injury as a result of that condition" (quotation omitted). Nunez v. Carrabba's Italian Grill, Inc., 448 Mass. 170, 175 (2007).
In dram shop liability cases, liability for negligence "is premised on a defendant's failure to refrain from serving liquor to an intoxicated patron in circumstances . . . in which the defendant should have known that the patron was intoxicated." Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 43 n.13 (2009). Willfulness, wantonness, or recklessness under G. L. c. 231, § 85T, is a higher standard that requires demonstrating misconduct over and above negligence, see Tobin v. Norwood Country Club, Inc., 422 Mass. 126, 136 (1996), "which conduct involves a high degree of likelihood that substantial harm will result to another" (quotation omitted). Manning v. Nobile, 411 Mass. 382, 387 (1991). Accordingly, a threshold inquiry here is whether the plaintiff has evidence to establish that the defendant served her alcohol while she was visibly intoxicated (i.e., negligently served her alcohol). If the plaintiff cannot meet this burden, then she cannot meet the higher burden under § 85T.
a. Obvious intoxication. "[A] tavern keeper does not owe a duty to refuse to serve liquor to an intoxicated patron unless the tavern keeper knows or reasonably should have known that the patron is intoxicated[.] . . . [Thus, the] plaintiff (must) introduce some evidence showing the defendant was on notice that it was serving alcoholic beverages to an intoxicated patron." Kirby v. Le Disco, Inc., 34 Mass. App. Ct. 630, 632 (1993), quoting Cimino v. Milford Keg, Inc., 385 Mass. 323, 327-328 (1982). The plaintiff's burden is to show that it is "more probable than not that [she] appeared intoxicated at the time [she] was served [her] last [drink]." Douillard, 433 Mass. at 165.
The plaintiff must show that her intoxication was apparent at the time the bartender served her last drink. Evidence that the plaintiff had an elevated BAC or appeared intoxicated at some later time is not, by itself, sufficient to meet her burden. Douillard, 433 Mass. at 165. Courts' "reluctance to accept [evidence of later intoxication] as sufficient stems from the uncertainties of the situation, including the possible delayed impact of the consumption of alcohol, and the unknown effect on a patron of the last drink served to him [or her] by a licensee." Id. However, evidence of later intoxication may be used to bolster evidence of apparent intoxication at the time of service. Id. at 165-166. In other words, a plaintiff who relies on evidence that she was intoxicated at some point after she was served her last drink must also have some other evidence to suggest that she was visibly intoxicated when the bartender served her last drink.
Plaintiffs often rely on direct evidence of drunken behavior such as loud or boisterous conduct to meet their burden. See, e.g., Cimino, 385 Mass. at 325 (testimony that patron became "loud, and vulgar," and "obnoxious"); Gottlin v. Graves, 40 Mass. App. Ct. 155, 158 (1996) (testimony that patron appeared drunk and that his "whole manner changes when he drinks"); Hopping v. Whirlaway, Inc., 37 Mass. App. Ct. 121, 123 (1994) (testimony that patron "look[ed] like he had a few" and "seemed to 'be feeling pretty good'"). The plaintiff here has no such evidence. Indeed, witnesses who were at the bar on the evening of the plaintiff's accident testified that she showed no signs of intoxication at any time before she fell. To survive summary judgment, the plaintiff thus needed to come forward with sufficient circumstantial evidence to allow a jury to infer that she must have displayed signs of intoxication prior to being served her last drink. See Douillard, 433 Mass. at 165.
Here, the only evidence that the plaintiff has to support an inference that she was visibly intoxicated at the time of last service is expert testimony opining that, in order to have had the BAC she did when admitted to MGH, she must have been served the equivalent of ten shots of vodka. Therefore, we must determine whether evidence that the plaintiff was served three or four cocktails containing a total of ten units of alcohol over a three-hour period is enough to create a triable issue regarding visible intoxication in light of direct evidence that she did not appear intoxicated. We determine that it is not.
Evidence that a patron consumed an excessive amount of alcohol can support an inference "on the basis of common sense and experience, that the patron would have displayed obvious outward signs of intoxication while continuing to receive service from the licensee." Vickowski, 422 Mass. at 611. In some cases, the amount of alcohol consumed is so excessive that a jury could reasonably conclude that any person who consumed a similar amount of alcohol would appear drunk. See Rivera v. Club Caravan, Inc., 77 Mass. App. Ct. 17, 21 (2010) (fourteen units of alcohol over two-hour period); O'Hanley v. Ninety-Nine, Inc., 12 Mass. App. Ct. 64, 69 (1981) (twenty-one units of alcohol). The sufficiency of the plaintiff's evidence of visible intoxication turns upon the particulars of the case, including not only the amount of alcohol consumed, but also the time period over which it was consumed, and the patron's usual drinking habits. See Vickowski, supra at 611 (evidence that patron who was regular drinker "sipped" four or five units of alcohol over two hours insufficient to support inference of visible intoxication); Makynen v. Mustakangas, 39 Mass. App. Ct. 309, 314 (1995) (consumption of eight or nine units of alcohol not sufficient to support jury verdict against bar where there was no other evidence that patron appeared intoxicated while at bar); Kirby, 34 Mass. App. Ct. at 632 (consumption of eight units of alcohol over two hours not sufficient to support liability absent other evidence of visible intoxication). Compare Cimino, 385 Mass. at 328 (evidence that patron with history of being ejected from defendant bar due to drunken behavior consumed twelve units of alcohol contained in six cocktails sufficient to allow inference that patron was visibly drunk); Makynen, supra at 311-312 (consumption of eight or nine units of alcohol sufficient to support jury verdict against social host where evidence showed that social host had questioned whether patron was too drunk to drive before purchasing last drink). Where a patron's alcohol consumption on the date in question was roughly consistent with the patron's prior drinking history, that consumption alone generally will not support an inference of visible intoxication. See Vickowski, 422 Mass. at 611.
In this case, the undisputed evidence showed that the plaintiff was a frequent drinker who visited the Brandy Barrel or other neighborhood bars several times a week. At the Brandy Barrel, the plaintiff's usual order was a tall Madras cocktail and she routinely consumed three such cocktails without becoming visibly intoxicated (or, according to her testimony, feeling intoxicated). While, on summary judgment, we must credit the expert report that the cocktails the plaintiff consumed each contained two and one-half units of alcohol, there is no evidence to suggest that this was more alcohol than a tall Madras cocktail from the Brandy Barrel usually contained. Indeed, the bartender on duty the night of the accident testified that she had known the plaintiff for eight or nine years and had prepared drinks for her on many occasions. The bartender also testified as to her procedure for preparing the Madras cocktails, and there is no evidence to suggest that she deviated from that procedure when preparing the cocktails the plaintiff drank the night she was injured. To the contrary, the plaintiff testified that the drinks she consumed that night did not seem any stronger than usual. In this context, evidence that the plaintiff consumed three or four Madras cocktails does not support an inference that she would have appeared visibly intoxicated before being served her last drink.
The direct evidence was that the plaintiff did not appear visibly intoxicated. Moreover, the plaintiff failed to supply any additional circumstantial evidence of visible intoxication. The plaintiff did not, for example, have her expert calculate what her BAC would have been at the time she was served her last drink. Instead, he only calculated the plaintiff's BAC at the time of the accident -- some thirty minutes and two and one-half units of alcohol consumption later. The plaintiff also did not testify regarding the number of drinks required before she became intoxicated or obtain testimony from friends or acquaintances who had seen her intoxicated and could describe her appearance and behavior when intoxicated. Compare Douillard, 433 Mass. at 164-168 (reversing summary judgment in favor of defendant bar and finding triable issue as to visible intoxication based upon evidence that bar patron had elevated BAC after his arrest, testimony that patron usually became drunk after seven drinks, testimony describing how patron behaved when drunk, and expert testimony calculating what patron's BAC would have been at time of last service). In short, while the plaintiff has offered evidence that would allow a jury to infer that she appeared visibly intoxicated after she fell, her evidence does not support an inference that she appeared visibly intoxicated at the time she was served her last drink. The plaintiff therefore does not have evidence sufficient to demonstrate that the defendant was negligent, much less willful, wanton, or reckless. The Superior Court judge properly granted summary judgment.
b. Free pouring of alcohol. The plaintiff also argues that the bartender's failure to measure the alcohol she poured into the plaintiff's drinks was reckless because it created the risk of over pouring. There is no authority for the proposition that the plaintiff can establish liability under G. L. c. 231, § 85T, based upon the defendant's decision to permit its bartenders use of a free pour method of drink preparation. Massachusetts has not recognized liability based upon a dram shop's method of operation, except where that method of operation allows minors access to alcohol. See Tobin, 422 Mass. at 128-129 (country club liable for service of alcohol to minor where club did not monitor alcohol intake of guests, making it possible for minors to obtain alcohol from other patrons). In cases involving adult patrons, the focus remains whether the bartender knowingly served alcohol to an intoxicated patron. Here, the plaintiff's arguments about the risk of the bartender's free pouring are not connected to that standard. Even if we accept the proposition that free pouring increases the risk a patron will become intoxicated, there is no evidence to suggest that free pouring makes a bartender more likely to continue serving a patron who is already intoxicated.
Moreover, as discussed, the plaintiff does not have any evidence to suggest that the bartender's free pouring technique actually resulted in over pouring. There is no testimony in the record as to the number of units of alcohol that should be in a "tall" Madras, as distinguished from a "short" Madras, and therefore no basis to conclude that the two and one-half units in each drink were the product of over pouring, rather than intentionally pouring more alcohol into a larger drink.
Accordingly, we conclude that a jury could not find that the defendant engaged in willful, wanton, or reckless conduct based upon the record in this case.
Judgment affirmed.
By the Court (Singh, Wendlandt & McDonough, JJ.),
Justice McDonough participated in the deliberation on this case while an Associate Justice of this court, prior to his reappointment as an Associate Justice of the Superior Court.
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 11, 2020.