KATHLEEN M. O'SULLIVAN vs. HEMISPHERE BROADCASTING CORPORATION & another. [Note 1]

NOLAN, J. The plaintiff appeals from the allowance of motions for summary judgment of defendants Hemisphere Broadcasting Corporation (WBCN) and Miller Brewing Company (Miller). [Note 2] We transferred the appeal to this court on our own motion. We affirm.

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In reviewing action on a motion for summary judgment, our inquiry is governed by Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974), and cases decided under that rule, which provides that a motion for summary judgment should be allowed if a party demonstrates that there is no genuine issue of material fact and that such party is entitled to judgment as matter of law. See Community Nat'l Bank v. Dawes, 369 Mass. 550, 554 (1976).

From the pleadings and affidavits filed by the parties, we learn that the plaintiff, while operating her motor vehicle in Quincy on March 14, 1984, was struck and injured by one Wayne Batson. [Note 3] Earlier that day Batson had attended a promotional event known as "WBCN Free Lunch" on the premises of The Metro and drank excessively, becoming intoxicated before operating his motor vehicle.

The Metro, Miller, and WBCN agreed to sponsor this promotional event on the premises of The Metro. WBCN agreed to donate radio advertising time to apprise its listeners of the event and to provide the appearance of some of its radio personalities. Miller agreed to provide "free" beer and, in fact, did provide free beer although the beer which Batson drank excessively was not Miller's. The plaintiff argues that The Metro, WBCN, and Miller were joint venturers and that Miller and WBCN had a right and obligation to control the distribution of free beer. It was negligent, the plaintiff argues, to fail to supervise the distribution of free beer and this negligence resulted in Batson's intoxication, which caused the plaintiff's injuries and emotional distress after he operated his motor vehicle.

Another theory advanced by the plaintiff implicates G. L. c. 138, Section 69 (1986 ed.). The plaintiff argues that Miller and WBCN were engaged in a joint venture to violate the requirements of the statute, which prohibits the sale or distribution of alcoholic beverage to one who is already intoxicated. The plaintiff continues her argument by claiming that a violation

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of G. L. c. 138, Section 69, was a violation of her rights under G. L. c. 93A, Section 2 (1986 ed.).

The fatal weakness in the plaintiff's entire case (both for negligence and for c. 93A violation) is the defendants' total lack of control and right to control the distribution of the free beer. See Buck v. Clauson's Inn at Coonamessett, Inc., 349 Mass. 612, 615 (1965). It is undisputed that neither Miller nor WBCN had a right to control the distribution of the beer. In fact, neither defendant had a license under the very statutes invoked by the plaintiff which would permit them to control the distribution of the beer.

In a word, neither WBCN nor Miller directly or vicariously was authorized to supervise the distribution of beer and hence neither WBCN nor Miller had the right to control its distribution. See Magee v. Landers, 122 Misc. 2d 736 (N.Y. Sup. Ct. 1984). Therefore, neither WBCN nor Miller can be held liable in negligence or for violation of c. 93A.

Judgments affirmed.