Opinion
No. 0300945.
Memorandum Dated February 17, 2005.
INTRODUCTION
The plaintiff, Avelino Mateo (Mateo), is the administrator of the estate of Don Christian Ong Mateo who died tragically in an automobile accident that occurred when he was a passenger in an automobile driven by the defendant Romeo Santos. Santos is alleged to have been seriously impaired by alcohol at the time of the accident. The plaintiff filed this wrongful death action against Santos and the other defendants asserting various theories of negligence, including negligence in allowing Santos to consume alcohol on their premises. The Horth defendants, Cervantes and Mickey's Billiards filed motions to dismiss plaintiffs' complaint on the ground that the Complaint fails to state a claim upon which relief can be granted. After a hearing, this court summarily denied the motions. At the suggestion of the court, however, each of the defendants filed a motion for reconsideration of the order denying the motions to dismiss. After a a second hearing and reconsideration of the parties' respective positions, the motions to dismiss are ALLOWED.
BACKGROUND
On a motion to dismiss for failure to state a claim upon which relief can be granted, the analysis begins with the allegations of the complaint which are summarized as follows. The accident which took the life of the decedent occurred in the early morning hours of March 4, 2001. In the hours preceding the accident, Santos, then aged nineteen, was a guest in the home of the defendants Remedios Horth, Howard Horth and Brian Cervantes who all lived together in Brockton. While at the Horth and Cervantes home, Santos consumed alcohol to the point of intoxication. Neither of the Horths nor Cervantes, however, served alcohol to Santos that evening.
At some point during the evening, despite his impaired condition, Santos got into his vehicle and traveled to Osco Plaza in Holbrook where he visited an establishment known as Mickey's Billiards. Osco Plaza is owned and managed by the defendant Highland Trust. While in the Osco Plaza parking lot, Santos and the decedent continued to consume alcohol that they had brought with them. None of the staff at Mickey's Billiards served or furnished alcohol to Santos. Sometime around 2:30 a.m. after a long night of drinking alcohol, Santos then drove Mateo back to the Horth and Cervantes home where he consumed even more alcohol until the early morning hours of March 4, 2001. At approximately 4:30 a.m., Santos got into his vehicle with the decedent in the front passenger seat. Seriously impaired by the alcohol, Santos lost control of the vehicle and collided with a fence and tree on the side of the road, causing fatal injuries to Mateo.
DISCUSSION
For purposes of a motion to dismiss a complaint under Mass.R.Civ.P. 12(b)(6), the allegations in the complaint must be treated as true and are entitled to all favorable inferences. General Motors Acceptance Corp. v. Abington Casualty Ins. Co., 413 Mass. 583, 584 (1992). A motion to dismiss should only be granted if it appears beyond doubt that the plaintiff cannot prove any set of facts in support of his claim which would entitle him to relief. Id. The standard is "exceedingly liberal" and "these generous and indulgent criteria have reduced a plaintiff's obstacle in surmounting a rule 12(b)(6) motion to dismiss for failure to state a claim to a minimal hurdle." Brum v. Town of Dartmouth, 44 Mass.App.Ct. 318, 321 (1998), citing Bell v. Mazza, 394 Mass. 176, 183 (1985). Therefore, Mateo need only present a complaint that does no more than "sketch the bare silhouette of a cause of action." Id. at 322, citing Coolidge Bank Trust Co. v. First Ipswich Co., 9 Mass.App.Ct. 369, 371 (1980). If the plaintiff meets this burden, the complaint will not be dismissed on this ground.
A. Mickey's Billiards' Motion to Dismiss
In his complaint, the plaintiff alleges that Mickey's Billiards was negligent in: "(1) failing to exercise its right to control the consumption of alcohol by underage individuals on the premises; (2) failing to maintain the premises in a reasonably safe condition; (3) failing to provide adequate security on the premises; (4) failing to exercise reasonable care to protect the plaintiff's decedent from harm; (5) other ways to be shown at the trial of this matter." Mickey's Billiards argues that the complaint fails to state a claim upon which relief can be granted in the absence of allegations that it served or furnished alcohol to Santos because under Massachusetts law, no duty of care arises unless a defendant supplies or furnishes alcohol when it knows or has reason to know that a person is intoxicated or underage. Plaintiff opposes the motion, arguing that Mickey's Billiards is liable on a theory of premises liability. On reconsideration, Mickey's Billiards has the better argument.
The issue whether Mickey's Billiards owed a duty of care to plaintiff's decedent, Don Mateo is, of course, a question of law for the court. See Wallace v. Wilson, 411 Mass. 8, 12 (1991). The well-settled rule in Massachusetts is that a defendant who sells or serves alcoholic beverages to a person who the defendant knew or had reason to know was intoxicated or underage owes a duty of care to the traveling public. Adamian v. Three Sons, Inc., 353 Mass. 498 (1968). See also McGuiggan v. New England Tel. and Tel. Co., 398 Mass. 152, 162 (1986) (imposing a duty of care on a social host who serves alcohol to an adult or minor who the host knows or has reason to know is intoxicated).
In applying this rule, our courts have held to the view that it is the act of supplying or serving the alcoholic beverages that is the touchstone of the duty of care. Without this control of the alcohol, no duty of care is imposed even when the defendant knows of or allows the offending party to consume alcohol on its property. See Langemann v. Davis, 398 Mass. 166 (1986) (no duty where defendant homeowner knew or reasonably should have known that alcoholic beverages would be available to minors at an unsupervised party at her home); see also Yacubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629 (1989) (no duty even though defendant was aware that its premises were used for the consumption of alcoholic beverages); see also Ulwick v. DeChristopher, 411 Mass. 401, 405 (1991) (no duty despite allegation that defendant "negligently encouraged underage drinking in his home"). In Dhimos v. Cormier, 400 Mass. 504 (1987), the Supreme Judicial Court found no duty on facts strikingly similar to those asserted in the plaintiff's complaint. Dhimos involved a fatal automobile accident caused by an eighteen-year-old driver who, just prior to the accident, had been drinking beer and taking drugs in the parking lot of a convenience store. The plaintiff argued that the defendants who owned and operated the convenience store and parking lot where the driver and other teenagers had gathered to drink beer and take drugs, owed a duty of care to him and others in the traveling public. Because the defendant in Dhimos had not served or supplied the alcohol and drugs to the intoxicated driver, the court held that it owed no duty of care to those injured by the driver. The Dhimos holding applies with equal force here precluding Mickey's Billiards' liability where there is no allegation in the complaint that it supplied alcohol to Santos.
The plaintiff does not attempt to challenge the settled principle that no duty of care exists where the defendant did not serve or supply the alcohol. Rather, he argues in the alternative that Mickey's Billiards had a duty of care to plaintiff's decedent based on the premises liability theory recognized in Mounsey v. Ellard, 363 Mass. 693 (1973). Plaintiff argues that the principles regarding dangerous conditions on land as articulated in Mounsey should be extended to include underage drinking as a dangerous activity. This alternative theory cannot succeed. The call to make such an extension of premises liability was rejected by the Supreme Judicial Court in Luoni v. Berube, 431 Mass. 729 (2000), where the court observed that "the obligation to maintain premises in a reasonably safe condition refers to preexisting physical conditions" such as "accumulated ice" and a "poorly lit stairway." Id. at 731. (citations omitted) (emphasis added).
The plaintiff also relies on the Superior Court's decision, Krueger v. Fraternity of Phi Gamma Delta, Inc., 13 Mass. L. Rptr. 665 (2001), where the court faced the issue of the potential liability of a fraternal organization for injury resulting from the intoxication of a pledge during an initiation ritual requiring excessive consumption of alcohol. Krueger is distinguished on its facts and, therefore, does not advance the plaintiff's opposition to defendant's motion to dismiss. The Krueger court denied the defendant fraternity's motion to dismiss because the fraternity knew of the underage drinking, took no action to stop it and most importantly, provided the alcohol to the victim. The Krueger court denied the defendant fraternity's motion to dismiss because these facts established a special relationship between Krueger and the fraternity which was sufficient to give rise to a duty of reasonable care on the part of the fraternity toward him. Id. Plaintiff's reliance on Krueger is misplaced inasmuch as no special relationship existed between Mickey's Billiards and Santos. It follows then that Mickey's Billiards owed no duty to plaintiff's decedent.
The Horth/Cervantes Motion to Dismiss
As discussed above, a social host's duty of care does not arise from control of the premises on which alcohol is consumed, but arises out of ownership and control of the alcohol itself. McGuiggan, 398 Mass. at 152. A social host has a duty of care only if he has supplied or served alcohol to a guest. See Ulwick, 411 Mass. at 405-07. There is no allegation in the complaint that the Horths or Cervantes had control of or served the alcohol consumed by Santos. Absent such an allegation, the complaint fails to state a cause of action for negligence against the Horths or Cervantes.
ORDER
For the foregoing reasons, I enter the following order: the motion to dismiss of Mickey's Billiard's is ALLOWED; the motion to dismiss of Remedios Horth, Howard Horth and Brian Cervantes is ALLOWED. Counts V, VI, IX, X, XI, XII, XIII and XIV of the complaint are hereby dismissed.