ERIC SALMONSEN v. ERIN HUBBELL & Another. ( 2024 )

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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-793
ERIC SALMONSEN
vs.
ERIN HUBBELL & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from the summary judgment granted in
favor of the defendant Twenty One Corp., doing business as Yong
Shing (Yong Shing), a restaurant in Auburn. The judge concluded
that the plaintiff failed to present evidence establishing a
genuine issue of material fact that Yong Shing served a visibly
intoxicated patron, an essential element of his claims against
the restaurant. We agree and affirm the grant of summary
judgment.
Background. We briefly summarize the critical facts,
viewed in the light most favorable to the plaintiff. See Bulwer
v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016). On March 24,
1 Twenty One Corp., doing business as Yong Shing Restaurant.
2017, the defendant Erin Hubbell and a friend entered Yong Shing
and opened a tab. The tab was open from 8:01 P.M. until
8:44 P.M. Before arriving at the restaurant, Hubbell had a
glass of wine at around 4 P.M. at work. At Yong Shing, Hubbell
and her friend ordered two drinks, a "Mai Tai" and a glass of
wine. Hubbell testified at her deposition that she drank only
the glass of wine and her friend had the "Mai Tai," but,
according to the arrest report, Hubbell told the officer she
consumed both. The bartender working at the restaurant that
evening put six ounces of wine in the glass he gave Hubbell, and
he did not observe her to be intoxicated while she was there.
There is no other evidence of the state of Hubbell's sobriety at
the time she was served. Soon after leaving the restaurant,
Hubbell drove her car across the double yellow lines in the
roadway and collided head-on with the plaintiff's vehicle,
causing him serious injury.
The Auburn police received a call about the collision at
8:55 P.M. The officer who arrived on the scene noticed that
Hubbell had a "strong odor of alcoholic beverage coming from her
breath, slurred speech, blood shot glassy eyes, and appeared
unsteady on her feet." Hubbell admitted to the officer that
"[she] shouldn't have been driving." The police found two
fifty-milliliter bottles of Dr. McGillicuddy's liqueur in her
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car. Hubbell was charged with operating under the influence of
intoxicating liquor and negligent operation of a motor vehicle.
In his second amended complaint, the plaintiff included
claims against Yong Shing for a "dram shop violation" and
negligence. Following discovery, Yong Shing moved for summary
judgment. After a hearing, the judge allowed the motion. A
different Superior Court judge later allowed Yong Shing's motion
for entry of separate and final judgment under Mass. R. Civ.
P. 54 (b), 365 Mass. 820 (1974). Judgment entered in favor of
the restaurant, and the plaintiff appealed.
Discussion. We review an order granting summary judgment
de novo. See Gallagher v. South Shore Hosp., Inc., 101 Mass.
App. Ct. 807, 810 (2022). "Summary judgment is appropriate
where, 'viewing the evidence in the light most favorable to the
nonmoving party, all material facts have been established and
the moving party is entitled to judgment as a matter of law."
Id., quoting Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234,
237 (2010). As the moving party, Yong Shing has the burden of
demonstrating "the absence of triable issues by showing that the
party opposing the motion has no reasonable expectation of
proving an essential element of its case." Gallagher, supra,
quoting Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012).
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General Laws c. 138, § 69, provides that "[n]o alcoholic
beverage shall be sold or delivered on any premises licensed
under this chapter to an intoxicated person." While a violation
of this statute carries criminal penalties, it does not
"expressly or implicitly grant an independent ground for civil
liability." Bennett v. Eagle Brook Country Store, Inc., 408
Mass. 355, 358 (1990). Rather, "[a]ny liability on the
defendant's part in such a situation must be grounded in the
common law of negligence." Id.The same legal standard thus applies to the plaintiff's
dram shop liability and negligence claims. "[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." Vickowski v. Polish Am.
Citizens Club of Deerfield, Inc., 422 Mass. 606, 609 (1996),
quoting Cimino v. Milford Keg, Inc., 385 Mass. 323, 327-328
(1982). To survive summary judgment in an action claiming
negligent overservice of a patron who caused injury to another,
a plaintiff must produce "some evidence showing that the
defendant was on notice that it was serving . . . an intoxicated
person." Cimino, supra at 328. See also Vickowski, supra at
610 ("The negligence lies in serving alcohol to a person who
already is showing discernible signs of intoxication").
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In this case, the plaintiff has not identified any direct
evidence that Hubbell was visibly intoxicated at the time of her
service at Yong Shing. Nor is there sufficient circumstantial
evidence to establish that the restaurant otherwise knew or
should have known that she was intoxicated. In Cimino, 385
Mass. at 328, the Supreme Judicial Court found that a customer's
"loud and vulgar conduct and the defendant's service to [the
customer] of a large number of strong alcoholic drinks was each
sufficient to put the defendant on notice that it was serving a
[person] who could potentially endanger others." Because it is
undisputed that Hubbell and her friend were served only a glass
of wine and a "Mai Tai," and there is no evidence that Hubbell
acted in a disruptive or inebriated manner at the restaurant,
such an inference cannot be drawn here. Compare Kirby v. Le
Disco, Inc., 34 Mass. App. Ct. 630, 632 (1993) (consumption of
eight beers over two hours insufficient to allow jury to infer
that individual visibly intoxicated), with O'Hanley v. Ninety-
Nine Inc., 12 Mass. App. Ct. 64, 69 (1981) (consumption of
fifteen beers and six martinis sufficient to infer that
individual "would have displayed some outward manifestation of
intoxication"). Nor can the plaintiff rely on evidence of
Hubbell's intoxication at the time of her arrest to prove that
the restaurant was on notice of her intoxication when she was
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served. "Evidence of apparent intoxication, or of elevated
blood alcohol levels, at some later point in time does not, by
itself, suffice to show that the patron's intoxication was
evident at the time the last drink was served." Douillard v.
LMR, Inc., 433 Mass. 162, 165-166 (2001).
Arguing that the "visibly intoxicated" standard "provides a
safe harbor for offending bars to escape liability," the
plaintiff seeks instead to prove the restaurant's negligence by
showing that it violated its own policies against serving
intoxicated patrons or allowing them to leave the restaurant in
an impaired condition. We decline to depart from established
precedent that proof of "apparent intoxication at the time of
service" is required to establish such a negligence claim.
Douillard, 433 Mass. at 165. Furthermore, even if we were to
entertain the plaintiff's theory of liability, there is no
genuine dispute of material fact that Yong Shing violated its
policies, since it is undisputed that Hubbell did not show any
visible sign of intoxication before she left.
In the alternative, the plaintiff argues that he should be
allowed to prove the restaurant's negligence by showing that its
"mode of operation" of serving alcoholic beverages was
negligent. In support of this theory, the plaintiff submitted a
report on Yong Shing's "operations and practices surrounding the
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service of alcohol," based on observations made by a private
investigator at the restaurant in 2019. However, no
Massachusetts court has recognized an establishment's mode of
operation as substitute evidence for visible signs of
intoxication at the time of service. See Phoung Luc v. Wyndham
Mgt. Corp., 496 F.3d 85, 89-91 (1st Cir. 2007) (surveying
Massachusetts law). Although the plaintiff cites Sarkisian v.
Concept Restaurants, Inc., 471 Mass. 679 (2015), as support for
his theory, that case involved a claim by a patron who slipped
and fell on a nightclub's dance floor, not the alleged negligent
overservice of a patron who caused injury to another. See
Sarkisian, 471 Mass. at 682-687. Furthermore, as the motion
judge noted, the "contention that observations made of
bartenders at the Yong Shing two years after the evening that
Hubbell visited the establishment suffice to prove Hubbell was
served while exhibiting signs of intoxication is not
convincing."
Because there is no genuine dispute of material fact
regarding whether Yong Shing knew or reasonably should have
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known that Hubbell was intoxicated at time of service, we affirm
the entry of summary judgment in its favor.
Judgment dated May 30, 2023,
affirmed.
By the Court (Neyman,
Brennan & Toone, JJ.2),
Assistant Clerk
Entered: May 31, 2024.
2 The panelists are listed in order of seniority.
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