The trial court, however, has discretion to enlarge the time period for filing a § 60J affidavit.Pucci v. Amherst Rest. Enters., Inc., 33 Mass.App.Ct. 779, 605 N.E.2d 309, 310 (1992). Croteau, 522 N.E.2d at 969–70.

We construe the plaintiff's case as arising from the alleged breach of the duty to protect tavern patrons from harm and the duty not to sell alcoholic beverages to underage persons. See Pucci v. Amherst Restaurant Enterprises, Inc., 33 Mass. App. Ct. 779, 780 n. 2 (1992). Upon general verdicts, the jury found Father's Huddle Café, Inc., and Café Enterprises, Inc., negligent and grossly negligent.

Although, as a general rule, there is no duty to protect others from the negligent or wrongful acts of third parties, based on social values and customs, such a duty may be premised on the existence of a special relationship between the negligent person and the person or entity on whom it is sought to impose liability. See Irwin v. Ware, 392 Mass. 745, 756-757 (1984); Mullins v. Pine Manor College, 389 Mass. 47, 50 (1983); Pucci v. Amherst Restaurant Enters., 33 Mass. App. Ct. 779, 781 (1992). In limited circumstances, "[w]e have discerned such a special relationship in cases addressing the liability of private parties to members of the general public where alcohol and driving were involved."

February 8, 1993Further appellate review denied: Reported below: 33 Mass. App. Ct. 779 (1992).

The burden is on the plaintiff to prove that the defendant was negligent. Pucci v. Amherst Restaurant Enterprises, Inc., 33 Mass. App. Ct. 779, 785 (1992). To the extent that the plaintiff contends that the security measures taken by the Bar Room were inadequate, "[r]easonable steps taken to prevent the harm will discharge the duty—such as, for example, denying service to or ‘shutting off’ a patron who appears intoxicated or who has requested too many drinks, or calling police when a fight occurs or an aggressive patron threatens assault."

We have reviewed the medical record entries cited, and conclude that they are, at best, unclear as to whether the skin biopsy results were required for the start of chemotherapy. Again, we defer to the jury as the proper finders of fact, particularly in cases of causation and negligence. See Pucci v. Amherst Restaurant Enterprises, Inc., 33 Mass.App.Ct. 779, 785 (1992). In sum, the jury had before them sufficient evidence to support a finding that unnamed agents, servants, or employees of the hospital were responsible for Ginisi's negligent treatment in the hospital emergency department on January 23, 2004, and, later, for the negligent delay in transferring his pathology specimens to MGH.

We proceed to consider whether, on the five allegations, Schaer can prove any set of facts that would entitle him to relief. General Motors Acceptance Corp. v. Abington Cas. Ins. Co., 413 Mass. 583, 584 (1992). Pucci v. Amherst Restaurant Enterprises, Inc., 33 Mass. App. Ct. 779, 783 (1992). We shall touch summarily on some of the other counts in the complaint.

Under principles of notice pleading, a single count for "nuisance" may encompass both private and public nuisance claims. See Mass. R. Civ. P. 8(e)(2) ("A party may set forth two or more statements of a claim ... alternatively or hypothetically, either in one count ... or in separate counts"); cf. Pucci v. Amherst Rest. Enterprises, Inc., 33 Mass. App. Ct. 779, 780 n.2 (1992) (single count for "negligence" could encompass claims for negligent failure to provide adequate security and negligent service of alcohol to an intoxicated person). 2.2.

The question of breach is generally one of fact which must be left to the jury. Pucci v. Amherst Rest. Enters., Inc., 33 Mass.App.Ct. 779, 785 (1992). Here, the Plaintiffs allege that Special Operations breached the duty of care it owed them as third party beneficiaries to the Contract by "failing to warn and instruct [the correctional] staff about the risk[s] of serious injury arising from close range shooting of persons with the [FN-303]."

G.L.c. 231, § 60J. If the plaintiffs affidavit fails to make a prima facie showing of liability, the court shall enter summary judgment for the defendant. See Pucci v. Amherst Rest Enterprises, Inc., 33 Mass.App.Ct. 779, 782-83 (1992); see also Courtmanche v. Beijing Rest, Inc., 490 F.Sup.2d 107, 110-11 (D.Mass. 2007). A motion for summary judgment shall be granted where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Mass. R.Civ.P. 56(c).