HELEN M. VICKOWSKI vs. POLISH AMERICAN CITIZENS CLUB OF THE TOWN OF DEERFIELD, 1 INC., & ANOTHER. [Note 1]

GREANEY, J. The plaintiff, Helen M. Vickowski, commenced an action in the Superior Court against the defendant, Frank M. Fydenkevez (Fydenkevez), and the Polish American Citizens Club of the Town of Deerfield, Inc." (club), seeking damages for personal injuries she suffered after she was struck by an automobile operated by Fydenkevez, who had consumed alcoholic beverages at the club. In her amended complaint, the plaintiff asserted that Fydenkevez was negligent because he drove his automobile while under the influence of intoxicating liquor, and that the club was liable for damages because the club had failed to exercise due care in serving alcoholic beverages to Fydenkevez. A judge in the Superior Court allowed a motion by the club for summary judgment, see Mass. R. Civ. P. 56 (b), 365 Mass. 824 (1974), and properly ordered entry of a separate final judgment for the club pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974). The plaintiff appealed to the Appeals Court, and we granted her application for direct appellate review. We conclude that summary judgment was granted correctly, and, consequently, we affirm the judgment for the club.

The record, considered in the light most favorable to the plaintiff (nonmoving party), see Blare v. Husky Injection Molding Sys. Boston. Inc., 419 Mass. 437, 438 (1995), discloses the following undisputed facts. As of 1992, Fydenkevez had been visiting the club, an establishment licensed to sell alcoholic beverages, for about thirteen years, on an average of four to five times a week. Fydenkevez generally went to the club to drink beer. On Saturday, November 28, 1992, between 2:30 P.M. and 4:20 P.M., he consumed four or five twelve-ounce bottles of beer while at the club. He had consumed no alcohol prior to his arrival there. While drinking, he sat alone and quiet on a stool at the bar, watching television. He had nothing to eat.

Fydenkevez's son, Stephen Fydenkevez, was the bartender at the club that afternoon. Stephen, whose training in bartending was limited to a couple of weeks of "on the job" training, was accustomed to serving beer to his father at the club. Stephen indicated, in deposition testimony, that when his father arrived, around 2:30 P.M., he was not obviously intoxicated, that when his father ordered beer in the course of

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the afternoon, there were no indications which led Stephen to believe that his father was intoxicated, and that he did not believe at any time that day that his father was intoxicated. Stephen made no effort to monitor his father's condition on the afternoon in question. He did not have any conversation with his father, and he did not see him get off his stool and walk at any time. Stephen did not refuse to serve his father, and indicated that he would not be concerned about a person's ability to operate a motor vehicle after the consumption of four to five beers. Fydenkevez indicated that four to five beers was an unusually large amount for him to drink during the length of time he was at the club that afternoon. [Note 2] There was no other evidence concerning Fydenkevez's condition or appearance during the relevant two-hour period. Neither Fydenkevez nor Stephen was able to recall the name of any other person present in the club on the day of the, accident.

Fydenkevez was served his last beer around 4 P.M. He left the club sometime before 4:30 P.M., and apparently stopped briefly at a local grocery store. Shortly after 4:30 P.M., his automobile struck and severely injured the plaintiff as she was crossing a street. A Deerfield police officer who was called to the scene of the accident, observed that Fydenkevez smelled of alcoholic beverages, that his gait was unsteady and he swayed when he was standing still, that his movements were slow and deliberate, and that his eyes appeared bloodshot. About one-half hour later, Fydenkevez failed field sobriety tests administered by the officer, who observed at this point that Fydenkevez's speech was somewhat slurred. The officer

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arrested Fydenkevez for operating a motor vehicle while under the influence of intoxicating liquor; Fydenkevez was later convicted on that charge. Two witnesses to the accident also furnished information about Fydenkevez's demeanor at the scene. One of these witnesses indicated that she smelled alcohol on Fydenkevez, and that he was stumbling over his own feet. The other witness also smelled alcohol, observed the stumbling, and described Fydenkevez's speech as babbling. Both witnesses opined that Fydenkevez was obviously intoxicated.

1. The question of the club's liability is "grounded in the common law of negligence." Bennett v. Eagle Brook Country Store, Inc., 408 Mass. 355, 358 (1990). The well-established governing rule is "that a tavern keeper does not owe a duty to refuse to serve liquor to an intoxicated patron unless the tavern keeper knows or reasonably should have known that the patron is intoxicated... [T]he plaintiff [must] introduce some evidence showing that the defendant was on notice that it was serving . . . an intoxicated patron." Cimino v. Milford Keg, Inc., 385 Mass. 323, 327-328 (1982).

Summary judgment is appropriate when the moving party demonstrates, by reference to materials listed in Mass. R. Civ. P. 56 (c), that the nonmoving party, who will have the burden of proof at trial, lacks sufficient evidence to establish an essential element of his or her claim. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 715 (1991). The defendant contends (and the Superior Court judge agreed) that the materials presented by the plaintiff in opposition to the club's motion fail to sustain her burden, see id. at 715-716, in the sense that these materials fail to demonstrate that there is a genuine issue of fact that could be resolved by a jury in her favor on an essential element of her claim: that the club (through its employee) knew or should have known it was furnishing alcohol to an intoxicated patron.

In support of her claim, the plaintiff does not rely on direct evidence of Fydenkevez's conduct or demeanor at the club. Lacking such evidence, she contends that a jury properly could infer, from the evidence of Fydenkevez's demeanor and behavior furnished by the three witnesses at the scene of the accident, that he must have been showing similar apparent signs of intoxication "a half-hour and one beer earlier." Therefore, she reasons, a jury could conclude that the club

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violated its duty to the plaintiff and failed to exercise "that degree of care for the safety [of pedestrians] that ought to be exercised by a tavern keeper of ordinary prudence in the same or similar circumstances" (footnote omitted). Cimino v. Milford Keg, Inc., supra at 331. We think this particular leap, unsupported by additional probative evidence, direct or circumstantial, bearing on Fydenkevez's conduct or demeanor at the club, would not permit a reasonable inference to a sufficient degree of probability and would, in effect, impose liability on the basis of unacceptable speculation on the part of a jury.

As has been previously noted, "a tavern keeper does not ow a duty to refuse to serve liquor to an intoxicated patron unless the tavern keeper knows or reasonably should have known that the patron is intoxicated." Id. at 327. The negligence lies in serving alcohol to a person who already is showing discernible signs of intoxication. See McGuiggan v. New England Tel. & Tel Co., 398 Mass. 152, 161 (1986). A plaintiff's evidence must be sufficient to establish that, more probably than not, the patron in question was exhibiting signs of intoxication before he or she was served a last alcoholic drink (or drinks).

The imposition of liability on a commercial establishment for the service of alcohol to an intoxicated person who subsequently causes injury to another, often has turned, in large part, on evidence of obvious intoxication at the time a patron was served. See Cimino v. Milford Keg, Inc., supra at 325, 328 (patron was "totally drunk"; "loud and vulgar"); Gottlin v. Graves, 40 Mass. App. Ct. 155, 158 (1996) (acquaintance testified patron who had accident displayed obvious intoxication one hour and twenty minutes before leaving bar); Hopping v. Whirlaway, Inc., 37 Mass. App. Ct. 121, 124 (1994) (sufficient evidence for jury where acquaintance described patron who later had accident as appearing to feel "pretty good"). Contrast Makynen v. Mustakangas, 39 Mass. App. Ct. 309, 314 (1995) (commercial establishment could not be liable when there was no evidence of obvious intoxication while patron was at bar); Kirby v. Le Disco, Inc., 34 Mass. App. Ct. 630, 632 (1993) (affirming summary judgment for defendant in absence of any evidence of obvious intoxication); Wiska v. St. Stanislaus Social Club. Inc., 7 Mass. App. Ct. 813, 816-817 (1979) (directed verdict in favor of com-

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mercial establishment affirmed when there was no evidence that patron was served alcohol after he began exhibiting obvious signs of intoxication).

Direct evidence of obvious intoxication is not necessarily an essential part of a plaintiff's proof. This court has observed that "service [to a patron] of a large number of strong alcoholic drinks [would be] sufficient to put [a licensee] on notice that it was serving a [patron] who could potentially endanger others." Cimino v. Milford Keg. Inc., supra at 328. In other words, a jury confronted with evidence of a patron's excessive consumption of alcohol, properly could infer, on the basis of common sense and experience, that the patron would have displayed obvious outward signs of intoxication while continuing to receive service from the licensee. See P.J. Liacos, Massachusetts Evidence s. 4.2, at 118-119; s. 5.8.6, at 242-244 (6th ed. 1994 & Supp. 1994). In the Cimino case, the evidence was that the patron had been served six or more "'White Russians' (an intoxicating beverage containing vodka and coffee- brandy liqueur)." Id. at 325. See O'Hanley v. Ninety-Nine, Inc., 12 Mass. App. Ct. 64, 65 (1981) (inference of obvious intoxication could be drawn from evidence that patron consumed at least fifteen beers and six martinis). [Note 3] When evidence of excessive consumption is lacking, as matter of common sense and experience, the inference may not be drawn. See Kirby v. Le Disco, Inc., supra at 632 (consumption of eight beers insufficient to support inference of obvious intoxication); Makynen v. Mustakangas, supra at 312 (same, as to consumption of five to six cans of beer). The evidence in this case -- Fydenkevez, who was in the habit of drinking beer, "sipped" four to five bottles over the course of approximately two hours -- clearly would not warrant an inference of obvious intoxication based on excessive consumption.

We agree with the plaintiff that other forms of circumstantial evidence also might be sufficient to create a jury question on whether a licensee had served alcoholic beverages to a

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patron displaying obvious signs of intoxication. Nonetheless, we have been reluctant to accept evidence of subsequent, obvious intoxication as a surrogate for evidence of a patron's demeanor at the relevant time. In McGuiggan v. New England Tel. & Tel. Co., supra at 162, [Note 4] we held that an affidavit that might have been thought to prove a condition of obvious intoxication in a guest just before he left his host's home, was not sufficient to support liability on the host's part. In the absence of other evidence of obvious intoxication, we said that the evidence (expert testimony based on the results of a breathalyzer test) had "no bearing on what [the guest's] apparent condition was at the time he took his last drink." Id. Our reluctance to accept such evidence as sufficient stems from the uncertainties of the situation, including the possible delayed impact of the consumption of alcohol, and the unknown effect on a patron of the last drink served to him by a licensee. "Cases of this character must be decided one by one, applying common law principles." McGuiggan v. New England Tel. & Tel. Co., supra at 161. We conclude, that, in the circumstances of this case, a jury could not draw an inference of obvious intoxication with the requisite degree of certainty. [Note 5]

2. We briefly address the other arguments made by the plaintiff. The plaintiff appears to contend that the judge erred by concluding that, to prevail on a common law claim of negligence, a plaintiff must establish that a tavern has violated G.L.c. 138, s. 69 (1994 ed.). [Note 6] The judge correctly noted that proof of a violation of s. 69 was "merely evidence of

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negligence," see Bennett v. Eagle Brook Country Store, Inc., supra at 358-359, a point that was of more moment when the statute also prohibited service to a person known to be a drunkard, or known to have been intoxicated within the last six months. See id. at 357. To the extent the plaintiff contends that the judge erred in concluding that a plaintiff is required to demonstrate proof of discernible intoxication, she has ignored that this is what our cases have required.

We also reject the plaintiff's contention that the doctrine of res ipsa loquitur should be applied to.diminish the plaintiff's burden of proof. First, it cannot be concluded, on this record, that evidence of Fydenkevez's behavior or demeanor was in the exclusive control of the club. [Note 7] More to the point, application of the doctrine in cases like this one would create a presumption of liability whenever the patron of licensed premises causes injury to a third party while under the influence of intoxicating liquor, thus shifting to the defendant the burden of proving, at a minimum, that the patron had not exhibited obvious signs of intoxication while in the tavern. We decline to alter the law on this point.

Judgment affirmed.