Opinion
No. 11–P–1606.
2012-06-27
Stephen MAXWELL v. Ryan MULLIN & others.
By the Court (GREEN, GRAINGER & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a summary judgment entered in the Superior Court, dismissing his complaint against the defendants for injuries sustained in a motor vehicle accident.
The gravamen of the plaintiff's complaint against the defendants is his contention that they violated a duty of care owed to him, in permitting alcohol to be consumed at their home by the consequently intoxicated driver of the vehicle in which the plaintiff later was a passenger when injured, and that their violation of that duty foreseeably caused the plaintiff's injuries. We affirm. 1. Social host liability based solely on providing location where underage guests are permitted to consume alcohol. The plaintiff's principal claim of error is controlled by the recent opinion of the Supreme Judicial Court in Juliano v. Simpson, 461 Mass. 527 (2012). In that case, the court considered but explicitly rejected the possibility of expanding Massachusetts law on social host liability based on the Legislature's 2000 amendment to G.L. c. 138, § 34. The court's holding extended both to the conduct of underage adults (such as the defendant Ryan Mullin) and adults who are old enough to drink legally (such as the defendants Patricia Mullin and Peter Mullin).
The plaintiff's complaint also asserted claims against the driver of the vehicle, one Timothy Callahan. The claims against Callahan apparently are still pending. However, the docket does not reflect entry of a separate and final judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), and the appeal accordingly is not properly before us. See generally Long v. Wickett, 50 Mass.App.Ct. 380 (2000). In the exercise of our discretion, we nonetheless consider the plaintiff's appeal, as it is apparent from the record that the claims against the Mullin defendants are factually and legally independent of those against Callahan, and the case has been fully briefed and argued.
See Juliano, supra at 539; id. at 542 (Gants, J., concurring). Absent the requested expansion, liability “attaches only where a social host either serves alcohol or exercises effective control over the supply of alcohol.” Id. at 528.
We are unpersuaded by the suggestion by plaintiff's counsel at oral argument that the transcripts of eight persons he deposed during discovery (who expressed the view that the elder Mullins should be held legally responsible for hosting a party at which minors illegally consumed alcohol with the elder Mullins' knowledge) distinguish the present case from Juliano, by contradicting a premise on which the court relied: “that there is not a ‘community consensus' regarding the proposed expansion of social host liability .” 461 Mass. at 537.
There is no argument that Peter or Patricia Mullin procured or served any of the alcohol, or that they controlled the supply (except, perhaps, in whatever narrow sense might be implied by the argument deemed waived in part 2, infra ).
2. Assumption of a duty of care by Patricia Mullin and Peter Mullin. We decline to consider the plaintiff's claim, which the plaintiff acknowledges he raises for the first time on appeal, that Patricia Mullin and Peter Mullin voluntarily assumed a duty of care, by monitoring the sobriety of underaged drinkers at their home. The argument is waived by reason of the plaintiff's failure to present it to the motion judge. See, e.g., Palmer v. Murphy, 42 Mass.App.Ct. 334, 338–339 (1997).
3. Liability of Ryan Mullin. We are unpersuaded by the plaintiff's suggestion that the fact that Ryan handed one beer to Callahan satisfies his burden to establish that Ryan thereby caused Callahan to become intoxicated (by reason of a presumption he asserts is created under G.L. c. 90, § 24[1][ e ] ). As a threshold matter, the statute does not create the presumption the plaintiff asserts (the plaintiff instead appears to rely on an interpretation of the statute offered by Ryan at his deposition). In any event, for purposes of imposing social host liability, “[v]iolations of the Commonwealth's liquor laws concerning minors ‘do not expressly or implicitly grant an independent ground for civil liability.’ “ Cremins v. Clancy, 415 Mass. 289, 295 (1993), quoting from Ulwick v. DeChristopher, 411 Mass. 401, 408 (1991). See Juliano, supra at 532.
The plaintiff does not otherwise argue that Ryan exercised control over the communal supply of alcohol from which Callahan became intoxicated. In any event, though the record admits some degree of ambiguity concerning the precise quantity of alcohol Ryan Mullin may have procured for the party,
it is clear from the record that he did not control the communal supply.
Contrary to the defendants' characterization, the record (viewed in the light most favorable to the plaintiff) did not indisputably establish that Ryan could have supplied no more than part of a six-pack of beer. According to the plaintiff's deposition testimony, when he arrived at the party Ryan already had part of a thirty-pack there. The plaintiff also testified that Ryan “went separately [to purchase additional alcohol] again that night,” and “I know definitively that me and Ryan bought alcohol for that party .” Whether the plaintiff's version of events is more credible than Ryan's is, of course, a question for a fact finder not properly resolved on summary judgment.
Under our current law, however, control over the supply of alcohol, and the concomitant ability to restrict or suspend service to a guest who shows signs of intoxication, is the dominant consideration in imposing host liability in a case alleging negligent service of alcohol by a social host to a guest who thereby becomes intoxicated and causes injury to a third party. See Cremins, 415 Mass. at 293. In the present case, “ ‘[i]n the absence of a right to exercise effective control [over the supply of alcohol], the defendant was not subject to a duty’ owed to innocent third parties.” Juliano, 461 Mass. at 535, quoting from Cremins, supra at 294. Moreover, there is nothing in the record to suggest that Ryan served any alcohol to Callahan after handing him the first beer upon Callahan's arrival, or at any time after Callahan showed any sign of being intoxicated.
The present case does not involve circumstances in which the host was the sole or even the predominant supplier, in which the act of purchasing or otherwise furnishing the supply of alcohol could imply control.
Judgment affirmed.