HANNA WISKA & others [Note 1] vs. ST. STANISLAUS SOCIAL CLUB, INC. & another. [Note 2]

ROSE, J. On March 2, 1968, the plaintiffs Hanna Wiska and Theresa Jancura were injured while riding as frontseat passengers in a 1964 Pontiac automobile operated by one Kazimierz Nikiel. The automobile, travelling at approximately twenty-five miles per hour, struck a utility

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pole, and the plaintiffs sustained serious facial lacerations and head and other injuries from impact with the Pontiac's glass windshield. The plaintiffs brought this action seeking damages against St. Stanislaus Social Club, Inc. (Club), proceeding on the theory that the Club was negligent in selling alcoholic beverages to the driver of the Pontiac, and against General Motors Corporation (GMC), the manufacturer of the Pontiac, alleging negligent design of an automobile windshield and negligent failure to warn. After a trial conducted prior to the July 1, 1974, effective date of the Massachusetts Rules of Civil Procedure, the judge allowed the defendants' motions for directed verdicts on all counts. The plaintiffs appealed. Mass.R.Civ.P. 1A, subparagraphs 3 & 7, 365 Mass. 731 , 732 (1974). There was no error.

1. The counts against St. Stanislaus Social Club Inc. The plaintiffs alleged that the Club breached its duty to them by selling alcoholic beverages to Nikiel in violation of G. L. c. 138, Section 34, [Note 3] and of G. L. c. 138, Section 69, [Note 4] thereby creating liability on the part of the Club for injuries resulting from Nikiel's reckless driving.

The Club is a commercial establishment located on Chestnut Street in Chicopee, featuring a dance floor and a bar, with a parking lot provided on its premises for patrons' use. Nikiel arrived with the plaintiffs at the Club at 8:00 P.M. on March 2, 1968, and was served a drink of vodka by a waitress. The waitress testified that she knew Nikiel and that he had arrived at the Club on the night in question "by car." Nikiel left the Club for approximately

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one hour and returned at 9:45 P.M. Before 11:00 P.M. he was served another drink of vodka by the waitress and several more drinks by bartenders at the bar. There was testimony by two witnesses that Nikiel appeared to be "staggering a little" and "wiggling" at 11:00 P.M. in the Club and that he looked "a little drunk" at that time. At about 11:00 P.M. Nikiel left the Club with Wiska and Jancura and drove from the parking lot. As the automobile turned a corner at approximately twenty-five miles per hour it struck a utility pole, and the plaintiffs in the car were seriously injured. At trial, Wiska testified that Nikiel "was driving all right" when they left the parking lot, and Jancura testified that he was driving "normally."

A tavern keeper who sells alcoholic beverages to an intoxicated person or to a minor may be held civilly liable to a third party who is injured as a result of the customer's operation of a motor vehicle while intoxicated. Adamian v. Three Sons, Inc., 353 Mass. 498 , 500-501 (1968). See Dimond v. Sacilotto, 353 Mass. 501 (1968). And, although the civil liability established by Adamian is grounded in the common law doctrine of negligence (see Three Sons, Inc. v. Phoenix Ins. Co., 357 Mass. 271 , 275 [1970]), a violation of either Section 34 or Section 69 of G. L. c. 138 is some evidence of the defendant's negligence as to all consequences those statutes were intended to prevent. [Note 5]

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See Adamian v. Three Sons, Inc., supra at 499; Carey v. New Yorker of Worcester, Inc., 355 Mass. 450 , 453-454 (1969). In this case there was no evidence on which a jury could have found that the defendant had violated G. L. c. 138, Section 69, by serving alcoholic beverages to an intoxicated person. Contrast Adamian v. Three Sons, Inc., supra at 499. While there was evidence on which the jury could have found that Nikiel appeared to be intoxicated around 11:00 P.M., there was no evidence that he was served any liquor by the defendant after that time. There was likewise no evidence that Nikiel was or appeared to be intoxicated at the Club prior to 11:00 P.M. There was evidence, however, that the defendant had sold alcoholic beverages to a minor in violation of G. L. c. 138, Section 34, since several employees of the Club were shown to have served drinks of vodka to Nikiel between 8:00 P.M. and 11:00 P.M. Carey v. New Yorker of Worcester, Inc., supra at 453-454. See Dimond v. Sacilotto, supra at 502.

On two essential elements of their case, however, the plaintiffs failed to present sufficient evidence: actual causation and proximate causation. First, it must be shown that the minor's negligent motor vehicle operation was due to the influence of alcohol affecting his ability to drive. See Smith v. Clark, 411 Pa. 142, 145 (1963); 15 Ann. Survey Mass. Law 70, 77-78 n.38 (1968); Comment, 48 B.U.L. Rev. 502, 510-511 n.53 (1968). According to the evidence here, Nikiel was driving normally when he left the Club, and there was no evidence as to what caused the car to collide with the utility pole. Assuming that there was sufficient evidence to support a jury finding that Nikiel was intoxicated to some degree at the time of the accident, there was no evidence of any causal relationship between such intoxication and the accident.

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Nor was the element of proximate causation established by the evidence. It is basic that a defendant cannot be held liable unless the injury was a foreseeable consequence of the negligent act. See Carey v. New Yorker of Worcester, Inc., supra at 454. Here, there was no evidence that the defendant knew or should have known or was negligent in failing to recognize that Nikiel was a member of the class to which liquor sales are proscribed by G. L. c. 138, Section 34. [Note 6] Such evidence was essential to a finding that the plaintiffs' injuries were a foreseeable consequence of the defendant's negligence. [Note 7] See Rappaport v. Nichols, 31 N.J. 188, 202 (1959), cited by Adamian v. Three Sons, Inc., supra at 500; 15 Ann. Survey Mass. Law, supra at 77-78; Comment, 48 B.U.L. Rev., supra at 511.

Since the evidence was insufficient to warrant a conclusion that the illegal sale of alcoholic beverages by the Club to Nikiel was the actual or proximate cause of the plaintiffs' injuries, the Club's motion for a directed verdict was properly granted.

2. The counts against General Motors Corporation. We construe the various counts (fifteen in all) against GMC in the plaintiffs' complaint, in light of the evidence presented at trial, as raising issues of negligent design of the 1964 Pontiac windshield, negligent failure to warn users of the dangerous characteristics of the windshield, and

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strict liability. The court was correct in directing verdicts for the defendant on all counts.

Through their expert witness, an automotive consulting engineer, the plaintiffs attempted to introduce evidence showing that GMC's 1964 Pontiac windshield was unreasonably dangerous to users because of its characteristic mode of rupturing in long, jagged fragments. Alternatively, they attempted to show that GMC negligently failed to warn users that a safer windshield glass which when ruptured did so in smaller fragments had come into use in the industry in 1966, and that the 1964 windshield was unreasonably dangerous without the use of seat restraints. Much of the witness's testimony was excluded or limited by the judge on the ground that the witness was not qualified to give expert testimony on these issues. We find no error in any of the judge's evidentiary rulings at trial. The judge did not err in denying the plaintiffs' request to amend their complaint on the third day of trial to include allegations on the issue of seat restraints since, as the record indicates, the plaintiffs had more than once amended their pleadings and had had ample opportunity to include all necessary allegations. This is a case in which the judge's exercise of discretion under Mass.R.Civ.P. 15, 365 Mass. 761 (1974), should be respected. See Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288 , 289-290 (1977), citing Foman v. Davis, 371 U.S. 178 (1962). Contrast Evans Prod. Co. v. D.J. Dev. Corp., 6 Mass. App. Ct. 306 , 309 (1978).

The judge did not abuse his discretion in refusing to allow the expert to offer an opinion on whether the 1964 Pontiac windshield was dangerous to occupants in collisions at velocities over twelve miles per hour, or on what precautions a reasonable manufacturer would have taken to prevent injuries to users. The witness was properly allowed to testify as to his personal observations in conducting approximately 200 motor vehicle accident investigations, four percent of which had involved the 1964

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type of glass windshield impacted from inside the vehicle. The witness' testimony on fracture characteristics of 1964 and 1966 glass windshields and their comparative injury-producing effects was properly limited to the question of common knowledge in the automotive industry that a safer glass had been developed for use in automobiles after 1966 which would fracture in small particles on impact at velocities of twenty-two to twenty-nine miles per hour, whereas 1964 glass was known to fracture in larger fragments at a velocity of twelve miles per hour.

The judge properly found that the witness was not qualified to offer a medical opinion regarding any causal relationship between the plaintiffs' injuries and the properties of the 1964 Pontiac windshield.

A judge has broad discretion to determine whether an expert has the requisite qualifications and knowledge to render an opinion, and his decision will not be reversed unless it was clearly erroneous. See Louise Caroline Nursing Home, Inc. v. Dix Constr. Corp., 362 Mass. 306 , 309 (1972); Campbell v. Thornton, 368 Mass. 528 , 539-541 (1975). Contrast Venini v. Dias, 5 Mass. App. Ct. 695 , 697-699 (1977). Here, the witness was a consulting automotive and mechanical safety engineer. At the time of the trial he was a technical consultant to the Vehicle Equipment Safety Commission, a governmental body which formulates proposed safety standards for motor vehicles in all the States. He had not inspected the automobile involved in the accident, nor had he personally conducted any tests or studies or been involved in any design work on automobile windshields. The judge found that the witness' expertise was based on the tests, reports and studies of others. We conclude that the judge was well within the proper exercise of his discretion in excluding portions of the witness' testimony, based on his determination that the expert was not qualified to offer an opinion on the matters in issue, involving analysis and evaluation of comparative design of automobile windshields.

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Since this was not a case in which the jury could find of their own lay knowledge that there existed a design defect in the 1964 Pontiac windshield exposing users to an unreasonable risk of injury (contrast Smith v. Ariens Co., 375 Mass. 620 , 625 (1978), the plaintiffs' failure to adduce expert testimony on the issues of design negligence or failure to warn on the part of GMC was fatal to their case. The evidence presented at trial failed to establish that the 1964 Pontiac windshield constituted a defect attributable to the defendant presenting an unreasonable risk of harm to users. Here, as in Schaeffer v. General Motors Corp., 372 Mass. 171 , 173 (1977), the plaintiffs' expert's testimony did not raise an issue of fact regarding a design defect making GMC's windshield unsafe or regarding available design modifications which would have reduced the risk. See Swartz v. General Motors Corp., 375 Mass. 628 , 632 (1978). Contrast Uloth v. City Tank Corp., 376 Mass. 874 , 877-878 (1978). On the contrary, the evidence showed that the type of windshield installed in the 1964 Pontiac conformed to the state of the art [Note 8] existing in 1963, the time of manufacture, and met all safety standards required in 1964. The plaintiffs' expert testified that in 1968, the time of the collision, there was no safer glass available for use in 1964 automobiles. There was no evidence upon which the jury could base a conclusion, even with all reasonable inferences, that GMC had breached a duty to design with resonable care, nor was there any evidence, apropos of GMC's duty to warn, of alternative design improvements available prior to 1968 which GMC could or should have made with regard to 1964 automobiles.

Additionally, the plaintiffs' counts against GMC predicated on a theory of strict liability must fail. It has been held that "there is no `strict liability in tort' apart from

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liability for breach of warranty under the Uniform Commercial Code, G. L. c. 106, Sections 2-314 - 2-318." See Swartz v. General Motors Corp., supra at 629-631; Back v. Wickes Corp., 375 Mass. 633 , 640 (1978).

For the reasons stated above, the motion of the defendant GMC for directed verdicts was properly allowed. Judgments are to be entered for both defendants.

So ordered.