Opinion
Civil Action No. 03-10862-GAO.
November 23, 2004
MEMORANDUM AND ORDER
The plaintiffs, Phuong Luc and Thai Minh Chinh, bring this personal injury and wrongful death action on behalf of themselves and their deceased unborn child, Lindsay Phuong Chinh, against Roberto M. Madruga ("Madruga"); Helio S. Demelo ("Demelo"); Boston Ballroom Corp. d/b/a The Roxy ("BBC"); Wyndham International, Inc. f/k/a Patriot American Hospitality Operating Partnership d/b/a Wyndham Hotels Resorts d/b/a The Tremont Boston; Wyndham Management Corp.; CHC Lease Partners c/o Gencom American Hospitality; Wyndham International Operating Partnership, L.P.; and Patriot American Hospitality Partnership, L.P. (collectively "the Wyndham Defendants"). BBC moves to dismiss one of the causes of action against it in the Amended Complaint (Count 20), while the Wyndham Defendants move to dismiss all of the counts against them (Counts 29-42).
I refer to the plaintiffs' First and Second Amended Complaints together as the Amended Complaint.
I. Summary of Alleged Facts
The Amended Complaint alleges the following:
On or about July 21, 2002, Madruga and Demelo were customers at the Roxy, a bar and dance club operated by BBC and located inside the Tremont Hotel in Boston. The Wyndham Defendants own, manage, and/or otherwise operate the Tremont Hotel and lease the Roxy premises to BBC. At the Roxy, Madruga was served several alcoholic drinks, each containing multiple shots of alcohol. After leaving the Roxy, Madruga proceeded to drive Demelo's pick-up truck, with Demelo as a passenger, north on Interstate Route 93. At about the same time, Thai Minh Chinh and his wife, Phuong Luc, who was pregnant with the couple's first child, Lindsay, were also traveling north on Interstate Route 93.
Chinh pulled his vehicle into the breakdown lane of the interstate and Luc prepared to get out of the car. As she was exiting the vehicle, Madruga drove the pick-up truck out of his lane of travel and into the rear of the plaintiffs' vehicle at a high rate of speed. The impact severely injured Luc and Chinh and killed the couple's viable yet unborn fetus.
II. BBC's Motion to Dismiss Count 20 of the Amended Complaint
Count 20 is entitled: "Wrongful Death — Method of Operation." In this cause of action, the plaintiffs seek to recover damages from BBC for the death of their unborn child. The crux of the claim is that BBC had a duty to act reasonably to minimize the risk that patrons of the Roxy, such as Madruga, would be overserved alcoholic beverages in contravention of Massachusetts law, would become intoxicated, and would pose an increased risk to third parties, such as the Chinh family. BBC breached this purported duty by operating the Roxy in a manner that increased the risk that patrons would be overserved alcohol and become intoxicated, and thus created the foreseeable risk that intoxicated persons would leave the Roxy, operate motor vehicles, and cause harm to others. As a proximate result of this negligence, Madruga became intoxicated at the Roxy, operated a motor vehicle, and caused personal injury to the plaintiffs and the death of their unborn child.
BBC moves to dismiss Count 20 for failure to state a claim recognized under the substantive law of Massachusetts, which governs in this case founded upon the Court's diversity of citizenship jurisdiction. See 28 U.S.C. § 1332. BBC contends that under Massachusetts law, a bar owner's liability for injuries caused to a third party by a patron who has become intoxicated depends on whether the bar owner knew or reasonably should have known that the patron was intoxicated at the time the patron was served. See Vickowski v. Polish American Citizens Club, 664 N.E.2d 429, 431 (Mass. 1996) (restating the "well-established governing rule"). The plaintiffs do not allege in Count 20 that BBC breached its duty to refrain from serving alcohol to a person it knew or should have known was intoxicated. The plaintiffs argue that the alleged negligence of BBC in Count 20 is measured against general common law principles pertaining to the reasonable foreseeability of harm, the availability of reasonable measures to avoid that harm, and the failure to take those measures, and that BBC is liable for routinely failing to have, or follow, appropriate alcohol service procedures at the Roxy.
Such allegations are made in Count 19, which alleges the recognized "dram shop" theory of liability. BBC does not move to dismiss Count 19.
The plaintiffs rely on the Massachusetts Supreme Judicial Court's ("SJC") decision in Tobin v. Norwood Country Club, 661 N.E.2d 627 (Mass. 1996), for their proposition that a bar owner has such a duty. However, Tobin does not support the plaintiffs' "method of operation" theory of liability. Tobin involved the provision of alcohol to minors. While there are certain similarities between cases involving the service of alcohol to minors and the service of alcohol to intoxicated adults, the SJC in Tobin itself stated firmly that "[t]he situations of those two classes are quite different."Tobin, 661 N.E.2d at 633.
A person who is already intoxicated has voluntarily put himself in that condition, and the law is concerned that a vendor not prolong or worsen that condition. By contrast, the law forbids the serving of alcohol to minors because they are thought to be peculiarly susceptible to the effects of alcohol and less able to make decisions about what amount of alcohol they may safely consume in various situations. Thus the focus of the second prohibition is more strongly paternalistic.Id. at 633-34. In a case decided only a few months afterTobin, the SJC continued its explanation of Massachusetts law in this area. In cases of intoxicated adults, the court said, "[t]he negligence lies in serving alcohol to a person who already is showing discernible signs of intoxication. A plaintiff's evidence must be sufficient to establish that, more probably than not, the patron in question was exhibiting signs of intoxication before he or she was served a last alcoholic drink (or drinks)."Vickowski, 664 N.E.2d at 432 (citation omitted). "The well-established governing rule is 'that 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. . . . [T]he plaintiff [must] introduce some evidence showing that the defendant was on notice that it was serving . . . an intoxicated patron.'" Id. at 431 (quoting Cimino v. Milford Keg, Inc., 431 N.E.2d 920 (1982)).
These cases indicate that the SJC has consistently restated the required basis for holding a bar owner liable to third parties for injuries caused by a patron of the bar who was intoxicated and has limited the basis of liability to the traditional "dram shop" rule. The theory outlined in Count 20 goes beyond these limits. If recognition of a new or expanded theory of liability is to be given, it must come from the state courts, not from a federal court exercising diversity jurisdiction. BBC's motion to dismiss Count 20 is, therefore, granted.
III. The Wyndham Defendants' Motion to Dismiss Counts 29-42 of the Amended Complaint
The Wyndham Defendants move to dismiss the plaintiffs' negligence claims against them because, they say, as a landlord or lessor of commercial property they owed no duty of care to the plaintiffs to prevent persons (like Madruga) from becoming intoxicated at the Roxy. See Dhimos v. Cormier, 509 N.E.2d 1199, 1201 (Mass. 1987). The plaintiffs allege that the Wyndham Defendants had a legal duty to inspect, monitor, and regulate the Roxy serving of alcohol, and that this duty arose out of (1) the defendants' actual prior inspections of, control over, and regulation of, the Roxy, and (2) lease provisions requiring the defendants to cause the Roxy to comply with Massachusetts liquor laws. The plaintiffs also seek to apply the reasoning of Tobin to their claims against the Wyndham Defendants, and urge the Court to recognize a duty on the part of the Wyndham Defendants to take pro-active, preemptive steps to prevent or minimize the risks associated with overserving alcohol to customers of the Roxy. Lastly, the Plaintiffs rely on the principles set forth in the Restatement (Second) of Torts §§ 379A, 315, and 318 as grounds for recovery against the Wyndham Defendants.
Two counts of the Amended Complaint, Counts 30 and 33, are premised on the existence of an agency relationship between the Wyndham Defendants and BBC. A landlord may be held responsible for the actions of its agent. See generally Theos Sons, Inc. v. Mack Trucks, Inc., 729 N.E.2d 1113, 1119-21 (Mass. 2000);Barron v. McLellan Stores Co., 39 N.E.2d 953, 954-55 (Mass. 1942); 33A Mass. Prac., Landlord and Tenant Law, § 18:1 (Supp. 2004). The plaintiffs have alleged facts regarding the existence of an agency relationship between the Wyndham Defendants and BBC, under principles of both actual and apparent authority, sufficient to permit Counts 30 and 33 to survive a motion to dismiss.
The other counts asserted against the Wyndham Defendants seek to impose primary, not vicarious, liability under theories that have not been recognized under Massachusetts law. One such theory is based on the lease agreements between the various Wyndham Defendants and BBC. In relevant leases, BBC affirmatively covenanted to obey applicable liquor laws. As a consequence, the plaintiffs propose, the lessor had an obligation, owed to third parties, to use reasonable care to ensure that this promise by BBC was kept. As with Count 20, discussed above, this theory does not state an existing principle of Massachusetts law, and this Court will not recognize a novel principle in the first instance.
In other counts, the plaintiffs rely either on very general propositions of a duty to use care to protect third persons from BBC's actions or omissions, or on any of several identified sections of the Restatement (Second) of Torts which permit liability to be based on various kinds of "special relationships." Again, the short answer is that none of the articulated theories has been recognized under Massachusetts law as a basis for imposing liability on persons in the position of the Wyndham Defendants.
Under Massachusetts tort law, a landowner has a duty to maintain the premises in a reasonably safe physical condition so as to avoid creating an unreasonable risk of harm to persons who may foreseeably come on the property, but generally speaking, "a landowner does not owe a duty to take affirmative steps to protect against dangerous or unlawful acts of third persons."Luoni v. Berube, 729 N.E.2d 1108, 1111 (Mass. 2000); see also Anthony H. v. John G., 612 N.E.2d 663, 666 (Mass. 1993) ("Ownership and control of premises may serve as the basis for imposing liability for injuries resulting from the physically dangerous condition of the premises. However, this principle generally does not extend to criminal conduct of third persons.") (citations omitted). Apart from the dram shop and social host cases, Massachusetts law does not impose liability on a landowner because a person has become intoxicated while physically on the landowner's premises. See Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067, 1072 (Mass. 1989) ("We have never imposed tort liability on a defendant whose premises are simply used for the consumption of alcoholic beverages, even with the defendant's knowledge, where the defendant did not serve or supply the intoxicants.").
In both dram shop and social host cases, the defendant's control over the supply of liquor is the "dominant consideration." Ulwick v. DeChristopher, 582 N.E.2d 954, 957 (Mass. 1991). This is because the host or bar owner who furnishes the alcohol can conceivably control the supply of liquor and "shut off" a patron who is showing signs of intoxication. Id. Thus, the SJC has rejected arguments, like the ones presented here, that defendants who neither provide alcoholic beverages nor make them available, owe a duty to travelers on the highways to supervise their premises when they knew or reasonably should have known that drinking was taking place on the premises. See id. (citing Wallace v. Wilson, 575 N.E.2d 1134 (Mass. 1991);Yakubowicz, 536 N.E.2d at 1067; Dhimos, 509 N.E.2d at 1199; and Langemann v. Davis, 495 N.E.2d 847 (Mass. 1986)). An established duty of care flowing from the defendant's control over the liquor supply, "furnish[es] practical limits of potential liability," and the absence of such control by the Wyndham Defendants in this case defeats the negligent supervision and entrustment theories advanced by the plaintiffs in Counts 31 and 32 of the Amended Complaint, the claims under the Restatement (Second) of Torts in Counts 29 and 42, as well as Counts 34 through 41. See id. If such an extension of the Massachusetts common law of negligence is to be made, it is more properly within the province of the state courts to do so.
Counts 36 and 37 are also dismissible because the plaintiffs cannot bring a separate cause of action under Mass. Gen. Laws ch. 231, § 85X for the death (not serious injury) of their "viable, yet unborn" fetus (not minor child). See Mass. Gen. Laws ch. 231, § 85X ("The parents of a minor child or an adult child who is dependent on his parents for support shall have a cause of action for loss of consortium of the child who has been seriously injured against any person who is legally responsible for causing such injury.") (emphasis added).
IV. Conclusion
For these reasons, BBC's Motion to Dismiss (Docket No. 43) is GRANTED and the Wyndham Defendants' Motion to Dismiss (Docket No. 45) is GRANTED as to Counts 29, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, and 42, but is DENIED as to Counts 30 and 33.
It is SO ORDERED.