JAMES F. O'GORMAN & others [Note 1] vs. ANTONIO RUBINACCIO & SONS, INC.

GREANEY, J. The plaintiffs, James F. O'Gorman and the executors of the estate of Sylvia S. McKinney, commenced an action in the Superior Court against the defendant, Antonio Rubinaccio & Sons, Inc., asserting claims of negligence, wrongful death, and loss of consortium and services.

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The case raises the issue whether the defendant, a licensed bar, owed a duty to the general public to prevent an intoxicated person from driving his car. This issue arises under facts which indicate that the defendant had not served the intoxicated person any liquor but had taken his car keys, attempted to sober him up, and then, upon the person's request, returned the keys, allowing him to drive while still intoxicated. A judge in the Superior Court allowed the defendant's motion for summary judgment pursuant to Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). The plaintiffs appealed and we transferred the case to this court on our own motion. We agree with the judge that the defendant has demonstrated that it is entitled to judgment as a matter of law, see Anthony's Pier Four, Inc. v. Crandall Dry Dock Eng'rs, Inc., 396 Mass. 818, 822 (1986), and, consequently, we affirm the judgment.

In passing upon the defendant's motion for summary judgment, the judge properly assumed that all of the facts favorable to the plaintiffs were to be taken as true, and that the plaintiffs were to have the benefit of any favorable inferences. See Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17 (1983). Considered under this standard, the summary judgment record discloses the following.

On January 19, 1986, Grover Greenleaf entered the defendant's establishment, T.J.'s Lounge & Pizza. Greenleaf had arrived by car and was obviously drunk. One month before, Greenleaf had been thrown out of an athletic club because of obnoxious and drunken conduct. Greenleaf ordered an alcoholic drink from the bartender and, upon being refused, asked to see the defendant's owner, Antonio Rubinaccio (Rubinaccio). Rubinaccio knew Greenleaf personally, as Greenleaf had been to the bar once or twice a week during the preceding months. It is unclear whether Rubinaccio knew that Greenleaf had been ejected from the athletic club or whether he had seen Greenleaf drunk before January 19.

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Rubinaccio convinced Greenleaf to stay at the bar and served him some food. He also took Greenleaf's car keys, telling him that he would return them when Greenleaf was ready. In taking this action, Rubinaccio was attempting to be "a good Samaritan trying to straighten [Greenleaf] up." A police officer was present in the parking lot during this time in order to investigate a hit and run accident. Although the officer was notified that there was an intoxicated person in the bar, the officer was never asked to enter the bar and never did enter the bar.

After a space of two hours Greenleaf, who was still drunk, wanted to leave. Rubinaccio offered him a ride, but Greenleaf refused it because he said he was only going a few miles. Greenleaf asked for his keys, and Rubinaccio returned them. Rubinaccio did not feel he had a right to keep Greenleaf's keys at this point, and noted that Greenleaf looked a lot better anyway.

T.J.'s Lounge & Pizza is located on a dangerous stretch of Route 2 in the town of Erving. At about 6 P.M., Greenleaf drove onto Route 2 in the fog and rain and lost control of his vehicle, crossing the center line and hitting another car headon. The accident took place within minutes of his leaving T.J.'s Lounge & Pizza. The driver of the other car, Sylvia S. McKinney, was killed, and a passenger, James F. O'Gorman, was seriously injured. Greenleaf was also killed. At an autopsy Greenleaf's blood alcohol level was found to be .16, which is sixty per cent over the legal intoxication limit.

In order for the plaintiffs to prevail, it must appear that Rubinaccio had a duty of care to prevent Greenleaf from harming travelers who were using the highway. See Dhimos v. Cormier, 400 Mass. 504, 506 (1987); Theriault v. Pierce, 307 Mass. 532, 533 (1940). Whether he owed such a duty is a question of law. Monadnock Display Fireworks, Inc. v. Andover, 388 Mass. 153, 156 (1983). We disagree with the plaintiffs' contention that the requisite duty should be found to exist in this case.

Several decisions have recognized a duty owed by a defendant to the driving public resulting from a defendant's act

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of selling or serving alcoholic beverages to someone who the defendant knew, or reasonably should have known, was intoxicated or underage. See McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 162 (1986) (social host); Michnik-Zilberman v. Gordon's Liquor, Inc., 390 Mass. 6 (1983) (package store selling liquor to a minor); Cimino v. Milford Keg, Inc., 385 Mass. 323 (1982) (tavern). See also G. L. c. 138, Sections 34, 69 (1988 ed.); Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 632-633 (1989). Because Rubinaccio furnished no alcohol to Greenleaf no liability can arise under these authorities. [Note 2]

We reject the plaintiffs' contention that a duty should be imposed here because the circumstances of Rubinaccio's contact with Greenleaf somehow created a "special relationship" with the driving public. For this contention, the plaintiffs rely essentially on the discussion in Irwin v. Ware, 392 Mass. 745, 754-763 (1984). Reliance on the Irwin decision is misplaced.

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That decision, and others like it, see Ribeiro v. Granby, 395 Mass. 608 (1985); Nickerson v. Commonwealth, 397 Mass. 476 (1986); Appleton v. Hudson, 397 Mass. 812 (1986); A.L. v. Commonwealth, 402 Mass. 234 (1988), concern the alleged failure of public employees to perform tasks required of them by the terms of their employment, with the result that indirect harm is caused to an individual. See also the most recent discussion of this subject in Onofrio v. Department of Mental Health, ante 605, 608-610 (1990). Liability in Irwin was predicated on the public employees' awareness of the motorist's intoxicated condition, in circumstances which posed an immediate and foreseeable threat of harm to a third person, and a complete failure by the employees to do their jobs. This rule obviously has no application to this case.

Rubinaccio had nothing to do with Greenleaf's intoxication, assumed no duty with respect to Greenleaf, and had no right to control Greenleaf's conduct or the use of his motor vehicle. [Note 3] Rubinaccio, therefore, owed no duty to intervene on behalf of anyone at risk because of Greenleaf's actions, because he did not create or contribute to the danger. See Black v. New York, N.H. & H.R.R., 193 Mass. 448, 450 (1907); J.R. Nolan & L.J. Sartorio, Tort Law Section 206, at 342 (2d ed. 1989). See also Yakubowicz v. Paramount Pictures Corp., supra at 632-633. See Sports, Inc. v. Gilbert, 431 N.E.2d 534 (Ind. Ct. App. 1982) (racetrack owner had no duty to prevent an intoxicated patron from driving when it had no right to do so); Bahm v. Dormanen, 168 Mont. 408 (1975) (defendant had neither right nor duty to prevent drunken friend from driving a truck which belonged to third party); Congini v. Portersville Valve Co., 504 Pa. 157 (1983)

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(employer had no duty to withhold drunken employee's keys at company Christmas party because employer had no right to control employee's car). See also Smith v. Shaffer, 395 N.W.2d 853 (Iowa 1986) (bar owners had no duty to telephone police when intoxicated minors were on their premises in violation of curfew). [Note 4]

This case was a proper one for entry of summary judgment.

Judgment affirmed.