ERIC SALMONSEN v. ERIN HUBBELL & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-793

ERIC SALMONSEN

vs.

ERIN HUBBELL & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from the summary judgment granted in

favor of the defendant Twenty One Corp., doing business as Yong

Shing (Yong Shing), a restaurant in Auburn. The judge concluded

that the plaintiff failed to present evidence establishing a

genuine issue of material fact that Yong Shing served a visibly

intoxicated patron, an essential element of his claims against

the restaurant. We agree and affirm the grant of summary

judgment.

Background. We briefly summarize the critical facts,

viewed in the light most favorable to the plaintiff. See Bulwer

v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016). On March 24,

1 Twenty One Corp., doing business as Yong Shing Restaurant.
2017, the defendant Erin Hubbell and a friend entered Yong Shing

and opened a tab. The tab was open from 8:01 P.M. until

8:44 P.M. Before arriving at the restaurant, Hubbell had a

glass of wine at around 4 P.M. at work. At Yong Shing, Hubbell

and her friend ordered two drinks, a "Mai Tai" and a glass of

wine. Hubbell testified at her deposition that she drank only

the glass of wine and her friend had the "Mai Tai," but,

according to the arrest report, Hubbell told the officer she

consumed both. The bartender working at the restaurant that

evening put six ounces of wine in the glass he gave Hubbell, and

he did not observe her to be intoxicated while she was there.

There is no other evidence of the state of Hubbell's sobriety at

the time she was served. Soon after leaving the restaurant,

Hubbell drove her car across the double yellow lines in the

roadway and collided head-on with the plaintiff's vehicle,

causing him serious injury.

The Auburn police received a call about the collision at

8:55 P.M. The officer who arrived on the scene noticed that

Hubbell had a "strong odor of alcoholic beverage coming from her

breath, slurred speech, blood shot glassy eyes, and appeared

unsteady on her feet." Hubbell admitted to the officer that

"[she] shouldn't have been driving." The police found two

fifty-milliliter bottles of Dr. McGillicuddy's liqueur in her

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car. Hubbell was charged with operating under the influence of

intoxicating liquor and negligent operation of a motor vehicle.

In his second amended complaint, the plaintiff included

claims against Yong Shing for a "dram shop violation" and

negligence. Following discovery, Yong Shing moved for summary

judgment. After a hearing, the judge allowed the motion. A

different Superior Court judge later allowed Yong Shing's motion

for entry of separate and final judgment under Mass. R. Civ.

P. 54 (b), 365 Mass. 820 (1974). Judgment entered in favor of

the restaurant, and the plaintiff appealed.

Discussion. We review an order granting summary judgment

de novo. See Gallagher v. South Shore Hosp., Inc., 101 Mass.

App. Ct. 807, 810 (2022). "Summary judgment is appropriate

where, '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 judgment as a matter of law."

Id., quoting Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234,

237 (2010). As the moving party, Yong Shing has the burden of

demonstrating "the absence of triable issues by showing that the

party opposing the motion has no reasonable expectation of

proving an essential element of its case." Gallagher, supra,

quoting Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012).

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General Laws c. 138, § 69, provides that "[n]o alcoholic

beverage shall be sold or delivered on any premises licensed

under this chapter to an intoxicated person." While a violation

of this statute carries criminal penalties, it does not

"expressly or implicitly grant an independent ground for civil

liability." Bennett v. Eagle Brook Country Store, Inc., 408

Mass. 355, 358 (1990). Rather, "[a]ny liability on the

defendant's part in such a situation must be grounded in the

common law of negligence." Id.

The same legal standard thus applies to the plaintiff's

dram shop liability and negligence claims. "[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." Vickowski v. Polish Am.

Citizens Club of Deerfield, Inc., 422 Mass. 606, 609 (1996),

quoting Cimino v. Milford Keg, Inc., 385 Mass. 323, 327-328

(1982). To survive summary judgment in an action claiming

negligent overservice of a patron who caused injury to another,

a plaintiff must produce "some evidence showing that the

defendant was on notice that it was serving . . . an intoxicated

person." Cimino, supra at 328. See also Vickowski, supra at

610 ("The negligence lies in serving alcohol to a person who

already is showing discernible signs of intoxication").

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In this case, the plaintiff has not identified any direct

evidence that Hubbell was visibly intoxicated at the time of her

service at Yong Shing. Nor is there sufficient circumstantial

evidence to establish that the restaurant otherwise knew or

should have known that she was intoxicated. In Cimino, 385

Mass. at 328, the Supreme Judicial Court found that a customer's

"loud and vulgar conduct and the defendant's service to [the

customer] of a large number of strong alcoholic drinks was each

sufficient to put the defendant on notice that it was serving a

[person] who could potentially endanger others." Because it is

undisputed that Hubbell and her friend were served only a glass

of wine and a "Mai Tai," and there is no evidence that Hubbell

acted in a disruptive or inebriated manner at the restaurant,

such an inference cannot be drawn here. Compare Kirby v. Le

Disco, Inc., 34 Mass. App. Ct. 630, 632 (1993) (consumption of

eight beers over two hours insufficient to allow jury to infer

that individual visibly intoxicated), with O'Hanley v. Ninety-

Nine Inc., 12 Mass. App. Ct. 64, 69 (1981) (consumption of

fifteen beers and six martinis sufficient to infer that

individual "would have displayed some outward manifestation of

intoxication"). Nor can the plaintiff rely on evidence of

Hubbell's intoxication at the time of her arrest to prove that

the restaurant was on notice of her intoxication when she was

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served. "Evidence of apparent intoxication, or of elevated

blood alcohol levels, at some later point in time does not, by

itself, suffice to show that the patron's intoxication was

evident at the time the last drink was served." Douillard v.

LMR, Inc., 433 Mass. 162, 165-166 (2001).

Arguing that the "visibly intoxicated" standard "provides a

safe harbor for offending bars to escape liability," the

plaintiff seeks instead to prove the restaurant's negligence by

showing that it violated its own policies against serving

intoxicated patrons or allowing them to leave the restaurant in

an impaired condition. We decline to depart from established

precedent that proof of "apparent intoxication at the time of

service" is required to establish such a negligence claim.

Douillard, 433 Mass. at 165. Furthermore, even if we were to

entertain the plaintiff's theory of liability, there is no

genuine dispute of material fact that Yong Shing violated its

policies, since it is undisputed that Hubbell did not show any

visible sign of intoxication before she left.

In the alternative, the plaintiff argues that he should be

allowed to prove the restaurant's negligence by showing that its

"mode of operation" of serving alcoholic beverages was

negligent. In support of this theory, the plaintiff submitted a

report on Yong Shing's "operations and practices surrounding the

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service of alcohol," based on observations made by a private

investigator at the restaurant in 2019. However, no

Massachusetts court has recognized an establishment's mode of

operation as substitute evidence for visible signs of

intoxication at the time of service. See Phoung Luc v. Wyndham

Mgt. Corp., 496 F.3d 85, 89-91 (1st Cir. 2007) (surveying

Massachusetts law). Although the plaintiff cites Sarkisian v.

Concept Restaurants, Inc., 471 Mass. 679 (2015), as support for

his theory, that case involved a claim by a patron who slipped

and fell on a nightclub's dance floor, not the alleged negligent

overservice of a patron who caused injury to another. See

Sarkisian, 471 Mass. at 682-687. Furthermore, as the motion

judge noted, the "contention that observations made of

bartenders at the Yong Shing two years after the evening that

Hubbell visited the establishment suffice to prove Hubbell was

served while exhibiting signs of intoxication is not

convincing."

Because there is no genuine dispute of material fact

regarding whether Yong Shing knew or reasonably should have

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known that Hubbell was intoxicated at time of service, we affirm

the entry of summary judgment in its favor.

Judgment dated May 30, 2023,
affirmed.

By the Court (Neyman,
Brennan & Toone, JJ.2),

Assistant Clerk

Entered: May 31, 2024.

2 The panelists are listed in order of seniority.

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