Massachusetts Supreme Judicial / Appeals Courts

NUNEZ v. CARRABBA’S ITALIAN GRILL, SJC-09724 (Mass.
1-9-2007) Robert E. NUNEZ, Second v. CARRABBA’S ITALIAN
GRILL, INC., & another.[fn1] No. SJC-09724. Supreme
Judicial Court of Massachusetts. December 4, 2006. January
9, 2007.

[fn1] Saugus Concessions, Inc., doing business as The
Palace.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin,
Sosman, & Cordy, JJ.

Practice, Civil, Summary judgment. Alcoholic Liquors, Sale
to underage adult. Negligence, Alcoholic liquors, Duty to
prevent harm, Sale of liquor, Standard of care.

CIVIL ACTION commenced in the Superior Court Department on
July 1, 2003.

The case was heard by Ralph D. Gants, J., on motions for
summary judgment.

Leave to prosecute an interlocutory appeal was allowed in
the Appeals Court by Charlotte Anne Perretta, J.

The Supreme Judicial Court granted an application for
direct appellate review.

Richard I. Clayman (John L. Dodge with him) for the
plaintiff.

Roger A. Emanuelson for Carrabba’s Italian Grill, Inc.

Thomas Drechsler for Saugus Concesssions, Inc.

SPINA, J.

In this summary judgment action now before us on direct
appellate review, we answer the following question left
open in Tobin v. Norwood Country Club, Inc., 422 Mass. 126
(1996). What is the legal responsibility of a licensed
commercial establishment for injuries sustained by an
adult, but underage, patron[fn2] as a consequence of that
establishment’s furnishing alcoholic beverages to such
patron? We conclude that in a civil action against the
licensed commercial establishment, the injured plaintiff
need not prove wilful, wanton, or reckless conduct on the
part of the establishment, but may prevail on a showing
that the establishment was negligent in serving alcoholic
beverages to the underage patron.

1. Background. We set forth the facts in the light most
favorable to the plaintiff. At approximately 7 P.M. on May
10, 2002, the plaintiff, who was eighteen years old at the
time, went to Carrabba’s Italian Grill, Inc., a restaurant
in Peabody, with a friend. He had previously worked there
as a waiter and knew many of the employees. During the next
two hours, the plaintiff ate dinner and drank six alcoholic
beverages, which were served to him by a bartender who had
known the plaintiff since high school. Because the
plaintiff was friendly with the staff at Carrabba’s, he was
not asked to pay for his drinks or dinner.

Around 9:30 P.M., the plaintiff left Carrabba’s and drove
home. He did not recall having any difficulty walking or
driving, but the plaintiff vomited after he arrived home.
Nonetheless, after taking a shower, the plaintiff left his
house to go to the Palace, a nightclub in Saugus, arriving
around 11:30 P.M. He had previously done promotional work
for the nightclub and knew many of the employees, including
the bartender on duty that night, whom the plaintiff had
been going to see. The plaintiff later testified at a
deposition that he had been to the Palace on more than
thirty prior occasions. On the first several occasions, he
had presented a false identification to the bouncer to gain
entry, but once he became familiar to the employees, he no
longer did so. Thus, when the plaintiff entered the Palace
on May 10, 2002, he greeted the bouncer and proceeded
inside without showing his false identification. The
plaintiff also had a plastic bracelet that the nightclub
gave to customers who were at least twenty-one years old
and could legally drink alcoholic beverages. While at the
nightclub that evening, the plaintiff consumed one or two
alcoholic beverages that were served to him by the
bartender.

Sometime between midnight and 1 A.M., the plaintiff left
the Palace, drove to a friend’s house to see whether she
was home, did not see her car parked outside, and then
decided to drive home. As the plaintiff’s vehicle
approached the intersection of Broadway and Elwell Street
in Malden, he saw a green traffic light and accelerated to
fifty-five or sixty miles an hour to get through the light
before it turned red. When the plaintiff entered the
intersection, his vehicle was struck by another car that
had failed to stop at the red light for the opposite
direction. The impact caused the plaintiff’s vehicle to spin
and then roll over, the plaintiff was thrown out of the
vehicle because he had failed to fasten his seat belt, and
he sustained serious injuries. Tests performed when the
plaintiff was admitted to a hospital indicated a blood
alcohol level of .13, considerably above the allowable limit
of .08, as set forth in G.L. c. 90, § 24(1) (e ). An
accident reconstruction team of the State police concluded
that, at the time of impact, the plaintiff had been
traveling at forty-seven miles per hour, and the vehicle
that hit him had been traveling at eleven miles per hour.
The speed limit in the vicinity of the intersection was
thirty miles per hour. The report from the State police
concluded that, although the plaintiff was not the cause of
the accident, his excessive speed at the time of the
collision may have contributed to the seriousness of his
injuries.

The plaintiff commenced an action against Carrabba’s and
the Palace (collectively, defendants), claiming that these
two establishments were negligent in serving alcoholic
beverages to him, an intoxicated underage adult, and that
their negligence was a contributing cause of his
injuries.[fn3] The defendants moved for summary judgment,
contending that the plaintiff had presented no evidence
that they had engaged in wilful, wanton, or reckless
conduct, as set forth by G.L. c. 231, § 85T,[fn4]
requiring proof of such conduct for personal injury claims
based on negligent serving of alcohol to intoxicated
persons. In response, the plaintiff asserted that this
statute was not applicable to an adult, but underage,
drinker like himself, and that the evidence was sufficient
to raise a genuine issue of material fact as to the
negligence of the defendants.

In a thorough and well-reasoned opinion examining the
evolution of “dram shop liability” in the Commonwealth, a
judge in the Superior Court allowed in part and denied in
part the motions for summary judgment. With respect to the
plaintiff’s claim that the defendants breached their duty
not to serve an intoxicated person, the judge opined that
G.L. c. 231, § 85T, was controlling and that the
plaintiff was required to prove that these establishments
had served him alcohol with wilful, wanton, or reckless
disregard for whether he was intoxicated. The judge
concluded, as a matter of law, that the evidence, viewed in
the light most favorable to the plaintiff, fell short of
meeting this demanding standard and, therefore, the
defendants were entitled to summary judgment with respect
to this alleged breach of duty. We agree with the judge’s
analysis.

With respect to the plaintiff’s claim that the defendants
breached their duty not to serve an underage adult, the
judge opined that G.L. c. 231, § 85T, was not
applicable and that the plaintiff could prevail if he
proved that these establishments served him alcohol when
they knew, or reasonably should have known, that he was
under twenty-one years of age and, therefore, under the
legal age for drinking alcoholic beverages. Viewing the
evidence in the light most favorable to the plaintiff, the
judge concluded that there was a genuine issue of material
fact as to the defendants’ knowledge, and, therefore, the
defendants were not entitled to summary judgment with
respect to this alleged breach of duty.

Following the issuance of the judge’s order allowing in
part and denying in part the motions for summary judgment
filed by the defendants, each petitioned for interlocutory
relief, G.L. c. 231, § 118, first par., and a single
justice of the Appeals Court granted leave to pursue an
interlocutory appeal from the judge’s order. Carrabba’s
then filed an application for direct appellate review with
this court, which was granted. We now consider what duty of
care a licensed commercial establishment selling alcoholic
beverages owes to an adult, but underage, patron.

2. Standard of review. We begin with the familiar principle
that the standard of review on summary judgment “is
whether, viewing the evidence in the light most favorable
to the nonmoving party, all material facts have been
established and the moving party is entitled to a judgment
as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co.,
410 Mass. 117, 120 (1991). See Mass. R. Civ. P. 56(c), as
amended, 436 Mass. 1404 (2002). All evidentiary inferences
must be resolved in favor of the plaintiff. See Simplex
Techs., Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197
(1999). Summary judgment is seldom granted in a cause of
action alleging reckless or negligent conduct, but this is
not an absolute rule. See Manning v. Nobile, 411 Mass. 382,
388 (1991).

3. Liability of licensed commercial establishment. In Tobin
v. Norwood Country Club, Inc., 422 Mass. 126, 127-129
(1996), a seventeen year old girl who was a guest at a
family reunion at the Norwood Country Club consumed many
alcoholic beverages at the party, had an argument with her
date, left the premises on foot, and was killed when she was
struck by a car on the highway where she had been walking.
In the civil action brought by the decedent’s parents, the
Norwood Country Club argued that “no duty had been
triggered by its provision of alcohol to the deceased on
the night of her death.” Id. at 132. This court disagreed,
concluding that the Norwood Country Club, a commercial
establishment licensed to serve alcoholic beverages to the
general public, “owed the deceased minor a duty of care to
refrain from making alcohol available to her, an act that
unreasonably increased the risk of harm to her.” Id. at 135.

We pointed out that an establishment licensed to sell
alcohol owed separate and distinct duties to two classes of
patrons: intoxicated persons and minors. Id. at 136. To
intoxicated persons, the licensed establishment owed a
duty, limited by G.L. c. 231, § 85T, to refrain from
wilful, wanton, or reckless conduct, whereby the
intoxicated patron’s condition would be prolonged or
worsened. Id. To minors, the licensed establishment owed a
duty to refrain from serving them any alcohol, regardless
whether they were intoxicated, because of the Legislature’s
strongly paternalistic concern about the effects of alcohol
on young adults. Id. We further stated that G.L. c. 231,
§ 85T, “reflects the Legislature’s unwillingness to
allow a person who has voluntarily and responsibly put
himself into a condition where his judgment and functioning
are impaired to cast the blame on others, when he suffers
injury as a result of that condition. That is a moral and a
policy judgment that does not extend to furnishing alcohol
to minors” (emphasis added). Id. In effect, while §
85T narrowed the duty owed to an intoxicated patron, it did
not affect the duty owed to a minor. Id. Because the
decedent in Tobin was a seventeen year old minor, we did
not consider the duty of care owed by a licensed commercial
establishment to an adult, but underage, patron, namely one
between the ages of eighteen and twenty-one years. We
consider that issue now.

The Legislature has consistently recognized the dangers of
furnishing alcohol to young adults who have not reached the
legal drinking age of twenty-one years. See, e.g., G.L. c.
138, § 12 (duly licensed common victualler not
authorized to sell alcoholic beverages to patrons under
twenty-one years of age); G.L. c. 138, § 34
(penalties shall be imposed for delivery of alcoholic
beverages to patrons of licensed establishments who are
under twenty-one years of age); G.L. c. 138, § 34A
(persons under twenty-one years of age who attempt to
purchase alcohol by misrepresenting their age shall be
fined $300); G.L. c. 138, § 34B (persons who have
reached age of twenty-one years may apply for liquor
purchase identification card); G.L. c. 138, § 34C
(persons between ages of eighteen and twenty-one years
shall be fined for knowingly possessing, transporting, or
carrying alcoholic beverages on their persons, except in
course of employment); G.L. c. 90, § 24(1) (e )
(where blood alcohol level of person under age of twenty-one
years operating motor vehicle is .02 or higher, person’s
license or permit shall be suspended).

In light of these clear legislative concerns, we conclude
that the duty of care that was owed to the deceased minor
in the Tobin case should apply with equal force when the
person to whom the alcohol is served is between the ages of
eighteen and twenty-one years. In each instance, the person
is under the legal drinking age, as clearly and plainly
established by the Legislature. The statutory provision
regulating the serving of liquor, G.L. c. 138, § 34,
forbids the serving of alcoholic beverages to anyone under
the age of twenty-one years because “they are thought to be
peculiarly susceptible to the effects of alcohol and less
able to make decisions about what amount of alcohol they
may safely consume in various situations.” Tobin v. Norwood
Country Club, Inc., supra at 136. See Michnik-Zilberman v.
Gordon’s Liquor, Inc., 390 Mass. 6, 10 (1983). If the
Legislature had deemed these concerns less significant for
individuals between the ages of eighteen and twenty-one
years, then it could have lowered the legal drinking
age.[fn5] Since 1984, the legal drinking age has remained at
twenty-one years, reflecting the Legislature’s ongoing
concerns about the effects of alcohol on young adults. The
alleged facts in this case amply illustrate the seriousness
and validity of those concerns.

We recognize that the Legislature has conferred significant
rights on young adults who are between the ages of eighteen
and twenty-one years. In Hamilton v. Ganias, 417 Mass. 666,
667-668 (1994), this court considered the duty owed by a
social host to a nineteen year old guest who injured
himself in a motor vehicle accident after becoming
intoxicated at the social host’s party. We concluded that a
social host owes no duty to an adult, but underage, drinker
who becomes intoxicated by the voluntary consumption of
alcohol and subsequently injures himself.[fn6] Id. at 667.
We pointed out that “[t]he Legislature has granted
substantial rights to and has placed substantial obligations
on people who are nineteen years old,” including the right
“to vote (art. 3 of the Amendments to the Massachusetts
Constitution), to make a valid will (G.L. c. 191, §
1 [1992 ed.] ), to enter into valid contracts (G.L. c. 231,
§ 85O [1992 ed.] ), to get married without parental
consent (G.L. c. 207, §§ 7, 24, and 25 [1992
ed.] ), to serve on a jury (G.L. c. 234, § 1 [1992
ed.] ), to work on any job (G.L. c. 149, § 63 [1992
ed.] ), for as many hours as he wished (G.L. c. 149,
§ 65 [1992 ed.] ), to buy and carry a firearm (G.L.
c. 140, §§ 131 and 131E [1992 ed.] ),[fn7]
and to be treated as an adult in the criminal justice system
(G.L. c. 119, §§ 52 and 74 [1992 ed.] ).”

Notwithstanding the breadth and importance of these
particular responsibilities, the Legislature has still
concluded that adults between the ages of eighteen and
twenty-one years, like minors, do not yet have the maturity
and judgment to drink alcohol responsibly. The fact that
the legal drinking age in this Commonwealth remains at
twenty-one years is a clear indication that the consumption
of alcohol is a right that is to be treated differently,
and more stringently, than other rights afforded to young
adults by the Legislature. Moreover, a social host like the
one in Hamilton v. Ganias, supra, does not stand on the
same legal footing as a commercial establishment licensed to
sell alcoholic beverages to the public.[fn8] See Manning v.
Nobile, 411 Mass. 382, 391 (1991) (setting forth reasons
for refusing to impose same duty of care on social host as
is imposed on licensed establishment). See also Tobin v.
Norwood Country Club, Inc., supra at 135-137.

Because the plaintiff here was under the legal drinking
age, he need only establish that the actions of the
defendants were negligent. In other words, the plaintiff
must present evidence to show that those establishments
served him alcoholic beverages knowing, or having reason to
know, that he was under twenty-one years of age and, as a
consequence, he was injured. See Tobin v. Norwood Country
Club, Inc., supra at 141 (“Negligence is based . . . on
reasonable foreseeability of harm, the availability of
reasonable measures to avoid that harm, and the failure to
take those measures”). “Unlike the duty of taverns to
refrain from serving obviously intoxicated adults, the duty
to refrain from serving alcohol to youths does not depend
on whether they are or appear to be intoxicated.”
Christopher v. Father’s Huddle Caf?©, Inc., 57 Mass.App.Ct.
217, 223 (2003). A breach of such duty occurs “when the
establishment knew or reasonably should have known that it
was furnishing alcohol to [a person under the age of
twenty-one years].” Tobin v. Norwood Country Club, Inc.,
supra at 135. Here, we conclude that the plaintiff has
marshaled sufficient facts to withstand the defendants’
motions for summary judgment on his claim that they
breached their duty not to serve alcoholic beverages to an
underage adult.

4. Conclusion. The order of the Superior Court granting in
part and denying in part the motions for summary judgment
filed by the defendants is affirmed. This case is remanded
to the Superior Court for further proceedings consistent
with this opinion.[fn9]

So ordered.

[fn2] Pursuant to G.L. c. 4, § 7, Fiftieth, an
“adult” is defined as “any person who has attained the age
of eighteen.” A “[m]inor” is defined as “any person under
eighteen years of age.” G.L. c. 4, § 7,
Forty-eighth. The legal drinking age in Massachusetts is
twenty-one years. See G.L. c. 138, § 34.

[fn3] Count I of the plaintiff’s amended complaint set forth
a claim for negligence and Count II was predicated on
strict statutory liability for the defendants’ alleged
violation of G.L. c. 138, § 34.

[fn4] General Laws c. 231, § 85T, provides: “In any
action for personal injuries . . . caused by or arising out
of the negligent serving of alcohol to an intoxicated
person by a licensee . . . no such intoxicated person who
causes injuries to himself, may maintain an action against
the said licensee . . . in the absence of wilful, wanton, or
reckless conduct on the part of the licensee. . . .”

[fn5] In 1973, the legal drinking age was lowered from
twenty-one to eighteen years. See St.1973, c. 241. However,
in 1979, the legal drinking age was raised to twenty years,
see St.1979, c. 15, § 2, and, in 1984, it was raised
again to twenty-one years. See St.1984, c. 312,
§§ 1-3.

[fn6] After Hamilton v. Ganias, 417 Mass. 666 (1994), was
decided, the Legislature revised G.L. c. 138, § 34,
to make it a crime for anyone, including a social host, to
furnish alcohol to anyone under the age of twenty-one
years, subject to certain specified exceptions. See G.L. c.
138, § 34, as amended by St.2000, c. 175 (“whoever
furnishes . . . alcohol for a person under 21 years of age
shall be punished by a fine of not more than $2,000 or by
imprisonment for not more than one year or both”). This
legislative enactment did not change the common-law
principle enunciated in Hamilton v. Ganias, supra at 667,
that a social host is not liable in a civil action to an
underage drinker who injures himself as a result of
intoxication. See Sampson v. MacDougall, 60 Mass.App.Ct.
394, 395, 398 (2004) (social host owed no duty to eighteen
year old party guest who became intoxicated, jumped off
fence, and was rendered quadriplegic). Contrast Keene v.
Brigham & Women’s Hosp., Inc., 439 Mass. 223, 228 n. 11,
238-239 n. 25 (2003) (enactment of G.L. c. 231, §
85K, abrogated common-law doctrine of charitable immunity
and imposed statutory cap on tort liability of charitable
corporations); Kerins v. Lima, 425 Mass. 108, 111 (1997)
(enactment of G.L. c. 231, § 85G, changed common law
and imposed strict liability on parent for intentional acts
of child); Commonwealth v. Wilkinson, 415 Mass. 402, 407
(1993) (enactment of G.L. c. 276, §§ 11-20R,
Uniform Criminal Extradition Act, abrogated common-law
right of bail bondsman to seize principal for surrender).

[fn7] At the time of our decision in Hamilton v. Ganias,
supra, G.L. c. 140, § 131 (license to carry
firearm), permitted persons eighteen years of age and older
to carry a firearm. In 1998, the statute was amended to
increase the age from eighteen to twenty-one years. See
St.1998, c. 180, § 41. See also Commonwealth v.
Barros, 435 Mass. 171, 179 n. 1 (2001) (Sosman, J.,
concurring).

[fn8] In Tobin v. Norwood Country Club, Inc., 422 Mass. 126,
133 n. 6 (1996), this court pointed out that “[t]he
circumstances surrounding social host liability, as
explained in McGuiggan v. New England Tel. & Tel. Co., 398
Mass. 152, 157-158 (1986), are different from the
considerations we take into account in the case of a
commercial establishment. Thus, our holding . . . does not
disturb any aspect of our law of social host liability.”
The same is true here.

[fn9] On remand, the judge or jury may consider the question
whether the plaintiff was comparatively negligent in
causing his own injuries such that any liability on the
part of the defendants should be correspondingly reduced.
See G.L. c. 231, § 85; Tobin v. Norwood Country
Club, Inc., supra at 138.