News
Disclaimer: Past results do not indicate future results, which are dependent upon the particular facts and circumstances surrounding each client’s case.
G&B ATTORNEYS PRESENT LIABILITY AND EMPLOYMENT SEMINAR TO PROMINENT BOSTON BASED RESTAURANT GROUP
Attorneys Sharmili P. Das and Matthew E. Mantalos of G&B’s Burlington office recently conducted a seminar/discussion session for one of New England’s finest restaurant groups. Ms. Das and Mr. Mantalos addressed the franchise’s management from all of its restaurants throughout Massachusetts and Connecticut on emerging issues in Massachusetts wage law, sexual harassment/hostile work environment, incident report writing, and premises liability actions arising from alcohol service.
The focus of the discussion was aimed at preventive measures for the management to employ to shield the business from potential liability. The presentation provided simple, inexpensive and effective strategies through which management can best protect the business.
G&B’S CONNECTICUT OFFICE PREVAILS IN WORKERS’ COMPENSATION CASE
Attorneys Elycia Solimene and Dominic Secondo of G&B’s Connecticut office recently obtained a favorable finding for an employer in a workers’ compensation claim that went to formal hearings. The claimant alleged that he was working at a nursery when he tripped and dropped a flower pot onto his left big toe. The injury to his toe became infected and part of his big toe was subsequently amputated. He filed a workers’ compensation claim alleging that his toe amputation arose out of a work-related injury.
During the course of the three formal hearing sessions, Attorneys Solimene and Secondo were able to elicit testimony from the claimant that he was wearing new boots when the alleged incident occurred. Employees of the respondent testified that the claimant was breaking in new boots at the time of the incident, and that dropping the plant on his foot had caused a blister on his left big toe to pop. Through medical records it was shown that the claimant did not seek treatment for two days and also had pre-existing diabetes, which would have contributed to the severity of the infection to his toe and resulted in the need for amputation.
After hearing testimony and considering submitted findings, the Commissioner found that the claimant had not met his burden in proving that his toe injury arose out of and in the scope of his employment. He found reports that his injury was work-related to be “at best, speculative.” The Commissioner dismissed all of the claims related to the big toe injury.
GIBSON & BEHMAN PREVAILS ON MOTION TO INTERVENE AND DEPOSIT POLICY LIMIT WITH THE COURT
Attorney Brian Dougan of G&B’s Providence office recently argued and prevailed on a motion to intervene in order to deposit policy limits on behalf of an insurance company in a personal injury claim stemming from a motor vehicle accident. This motion was the first of its kind in Rhode Island. The plaintiff allegedly sustained injuries in a five car motor vehicle accident on Interstate 295 in Smithfield, Rhode Island. The plaintiff sued the other drivers involved, and the insurance company for the driver G&B represented tendered its policy limits in an effort to resolve the case. The policy limit was not accepted by the plaintiff.
Under Rule 24 of the Rhode Island Rules of Civil Procedure, upon timely application anyone shall be permitted to intervene in an action: (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest, unless the applicant’s interest is adequately represented by existing parties. Attorney Dougan argued that the policy was offered but not been accepted and no release has been signed which would relieve the insurance company from any further obligations.
As evidence of why the company should be allowed to tender the policy limit and be relieved of its duty to defend, Attorney Dougan offered the full insurance policy, which in pertinent part states:
We have the right to defend any lawsuit brought against anyone covered under this policy for damages which might be payable under this policy. We also have a duty to defend any such lawsuit, even if it is without merit, but our duty to defend ends when we tender, or pay to any claimant or to a Court of competent jurisdiction, with the Court permission, the maximum limits of coverage under this policy. We may end out duty to defend at any time during the course of the lawsuit, by tendering, or paying the maximum limits of coverage under the policy, without the need for a judgment or settlement of the lawsuit or a release by the Claimant.
Based on the policy language, Attorney Dougan argued that should the Plaintiff wish to continue its lawsuit against the insured, the company should not be forced to undergo the expense of defending its insured when it has already tendered its full policy.
Counsel for the insured argued that in the State of Rhode Island there is a duty to defend even if the policy limits are tendered and he cited to the case of Employer’s Fire Insurance Company v. Chester Beals, 103 R.R. 623 (1968), which holds that the insurer's duty to defend a suit brought against one of its policyholders is determined by the allegations contained in the complaint. If the allegations in the complaint fall within the risk insured against in the policy, the insurer is said to be duty-bound to provide a defense for the insured, regardless of the actual details of the injury or the ultimate grounds on which the insured's liability to the injured party may be predicated. Beals further holds that the duty to defend is broader in its scope than the duty of an insurer to indemnify, and its existence does not depend on whether the injured party will ultimately prevail against the insured.
Attorney Dougan countered this argument by stating that the duty to defend is contractual in nature between the insured and its insurance company. In this case the insured is a Massachusetts resident, insured by a policy written in Massachusetts through a Massachusetts insurance company. The case law in Massachusetts and the policy itself are clear that the duty to defend ends when the policy has been tendered or delivered to the Court registry.
The judge agreed with Attorney Dougan’s arguments and ruled that the Motion to Intervene to deposit its insurance policy limits into the Court registry was allowed.
GIBSON & BEHMAN, P.C. PROUD TO SPONSOR 18TH ANNUAL SAINT AUGUSTINE SISTER MARY ROSALIE MEMORIAL GOLF TOURNAMENT
Gibson & Behman was once again proud to sponsor the 18th Annual Saint Augustine Sister Mary Rosalie Memorial Golf Tournament, a fundraiser for the St. Augustine School in Andover, Massachusetts. The Tournament was held on May 27, 2008 at Andover Country Club. Christopher Cifra participated on behalf of the firm and his team finished third in the Mixed Division. This is the eighteenth year that Gibson & Behman, P.C. has sponsored this worthwhile event and school.
Gibson & Behman Grows Its Healthcare Practice
Gibson & Behman, P.C., general counsel for the Massachusetts Ambulance Association, met with Lieutenant Governor Tim Murray to discuss industry issues in May. Dan Gibson and Chris Cifra met with Lt. Governor Tim Murray to discuss issues such as ambulance safety and rate issues. The meeting was attended by 80% of the privately owned ambulance companies in Massachusetts.
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Connecticut Supreme Court Eases Plaintiffs’ Burden in Self-Service Premise Liability Cases
The Connecticut Supreme Court recently upheld the application of the “mode of operation” rule in the context of a premises liability claim involving a self-service salad bar. This rule, previously adopted by sister state courts, including Massachusetts, relieves a premises liability plaintiff, under certain circumstances, from proving that a defendant business had either actual or constructive notice of the condition that caused the plaintiff’s injury. Rather, in this limited subset of premises liability cases, the plaintiff’s burden is altered such that he or she must show that (1) “the business’ chosen mode of operation creates a foreseeable risk that the condition regularly will occur” and, (2) “the business fails to take reasonable measures to discover and remove it.”
The plaintiff in this particular matter brought a lawsuit against Stop and Shop, Incorporated, after she slipped and fell on piece of lettuce on the floor immediately surrounding a self-service salad bar. The trial court, following a bench trial, entered a defense verdict, finding that the plaintiff failed to meet her burden of proof in establishing that the defendant had either actual or constructive knowledge of the piece of lettuce that had fallen to the floor of the store and allegedly caused the plaintiff’s fall. The plaintiff appealed, arguing that the trial court should have considered her claim pursuant to the mode of operation rule, thereby relieving her of the burden of proving either actual or constructive notice.
The plaintiff relied, in large part, on the physical structure of the salad bar and the adopted store policies in regard to the salad bar to demonstrate that the defendant store was aware of the potential risks associated with its self-service salad bar and that, at the time of the plaintiff’s slip and fall, the defendant store was non-compliant with its own policies intended to protect against such incidents. The Court noted that “[t]he salad bar had no railings and was framed by a four inch ledge that was too narrow to accommodate trays or containers. As a result, patrons customarily would hold their containers aloft, over the floor area, while serving themselves from the salad bar.” The floor below the salad bar was made of tile or linoleum, with only narrow runners, leaving the tile surface exposed. The store manager conceded that the salad bar, as a result of these conditions, was “an area where people used to let . . . salads fall. It was precarious.” Because of these “precarious” conditions, the store adopted specific policies, requiring the stationing of salad bar attendants, the use of sweeping logs to document preventative maintenance and cleaning of the salad bar, and the use of special accident report forms.
Despite these policies and preventative measures in place by virtue of store policy, the plaintiff testified that, at the time of her fall, there were no salad bar attendants present. Further, the plaintiff argued, the fact finder was permitted to infer from the defendant’s failure to produce documentation of cleaning of the area in accordance with its own guidelines, that the area surrounding the salad bar had not been maintained in accordance with store policy. Thus, the Supreme Court of Connecticut held that “[u]nder the circumstances . . . a fact finder reasonably could have concluded that the plaintiff had slipped and fallen due to the defendant’s failure to take adequate precautions in connection with its operation of the salad bar.”
As a policy matter, the Court supported its holding with three observations of the modern self-service practice employed by retailers. First, the Court found that retailers should bear the economic risk resulting from cost-cutting measures, including the employment of self-service operations. Citing Meek v. Walmart Stores, Incorporated, a prior Connecticut Court of Appeals decision, the Court noted that “[t]he measures taken by large, self-service retail merchandising establishments to protect their invitees must be commensurate with the risks inherent in that method of store operation . . .” Second, the Court found that the traditional prima facie case for premises liability claims is incompatible with self-service operations. Rather, “[s]elf-service businesses . . . are aware that some customers will be injured due to the conduct of other customers because such injuries are a likely, and therefore foreseeable, consequence of the self-service method of operation.” Third, the Court found that “the requirement of actual or constructive notice places a difficult-- and frequently insuperable-- burden on injured customers to establish when the unsafe condition arose.” Frequently, the physical condition of the injured party following the incident at issue will prevent him or her from performing any immediate investigation of the scene and the cause of the accident. Finally, the Court reasoned, the application of the mode of operation rule is most likely to promote the use of reasonable care in maintaining self-service operations.
As a practical matter, and contrary to the outcry against the implementation of the mode of operation rule, this analytical paradigm is not tantamount to strict liability for defendants employing a self-service operation. Rather, it is a reminder to business owners that they must take reasonable measures to ensure the safety of their patrons and, further, they must ensure actual implementation of policies intended to protect the safety of their patrons.
In order to avoid the fate of the defendant in Kelly v. Stop and Shop, Incorporated, business owners employing self-service operations must not only adopt sufficient procedures and practices to ensure the safety of their customers, but they must actually employ and document these measures. Thus, Kelly stands as a cautionary tale in which the defendant store adopted arguably sufficient measures to protect the safety of customers, but failed to implement these measures in a manner that was consistent in practice and further failed to document their efforts in a manner designed to rebut the presumption of liability that arises under the mode of operation rule.
Subrogation action – doing your homework counts
By Daniel P. Gibson, President and Managing Director
Jorge Solis, Chairman, National Subrogation Practice
Today, the practice of subrogation law is seeing considerable growth, owing to insurance companies’ desire and need to recover as much financial restitution as possible in the aftermath of paying out a claim – only to discover that a third party was more than 50 percent at fault.
The act of subrogation, which in a nutshell translates into transferring the right to collect from a third party, allows insurance carriers the potential to recover what is rightfully theirs. It is an equitable remedy under the law. Failure to utilize this fundamental action for recovery in effect translates into paying a claim twice.
Naturally, the likelihood of recovery increases significantly if subrogation action is taken against a party who has insurance coverage; however, within the realm of motor vehicle subrogation, an alarming number of uninsured drivers exist. Many reasons exist for the failure of people to obtain insurance, but financial constraints are certainly one of them. Without the proper amount of advance “homework” an insurance company may find itself in an uphill battle trying to recover from one of the uninsured masses with little ability to pay. Therefore it is in both an insurance company’s and a law firm’s best interests to conduct prompt and thorough research upfront to avoid spending valuable time, effort and money on an unrecoverable action.
It is paramount to first determine whether a paid out claim is worth subrogating. Increasingly, insurance companies are becoming more aggressive with subrogation measures, but they should always weigh the cost of hiring an attorney, filing a law suit and incurring costs associated with litigation against the likelihood and amount for recovery. There are obviously times when it is in a company’s best interest to pursue a subrogation claim; as there are also times where an insurance company’s best interests is to simply write off the claim.
The more information an insurance company has before calling in an attorney, the better, as this will no doubt expedite the recovery process. And time is of the essence to guarantee maximum recovery. It is critical that an investigation is initiated as early as possible for a number of reasons. Recollection of the incident will still be fresh in the affected parties’ minds; the chance for availability of all witnesses is increased; and perhaps most importantly, crucial evidence will not yet have been altered or destroyed. Generally speaking, the more time that elapses from an accident, the more time and effort will be required to build a sound case for recovery.
Once a decision has been made to pursue a subrogation action, an initial matter to consider prior to filing suit is venue. In small claims court, the venue of choice for many motor vehicle accidents, recovery is usually much quicker, as there is little or no discovery (presentation of documents, witnesses called). A judgment in small claims court can be delivered in as little as a couple months, but if the suit is lost there is no right to appeal for the Plaintiff. Should the case go to District or Superior court, recovery can take as long as a year or even two, primarily if the suit is contested. The particulars of each case will best determine in which court it should be heard.
The ultimate goal of subrogation is to move the case as quickly as possible, not only for the aforementioned reasons, but also because of applicable statutes of limitations. At times, insurance companies don’t decide to file a subrogation suit until close to the statute in an effort to save costs. But savings are typically not achieved if it’s more difficult for an attorney to perform the proper due diligence. Determinations should be made as early as possible on whether or not a claim is worth subrogating. And insurance companies should not hesitate to engage attorneys with whom they have working relationships with in their assistance with making these determinations early on.
The bottom line is that subrogation can be a profitable venture for both the insurance company and law firms if managed properly. An insurance carrier that aggressively and successfully pursues subrogation can save itself and its clients a significant amount of money annually. Recovery costs for insurance companies translate in lower premiums for clients – and isn’t that the ultimate goal
Daniel Friedman named Co-Director of Gibson & Behman’s New York City office
Daniel Friedman, a highly-respected litigation attorney with extensive insurance industry litigation experience, has been named Co-Director of the New York City office of Gibson & Behman, a leading national law firm known for providing progressive and economical solutions to its clients since 1987.
Friedman joins Gibson & Behman after having served the last 17 years as in-house general litigation counsel at the Madison Avenue-based American European Group. American European Group is the parent company of a group of insurance companies that includes Rutgers Casualty Insurance Company. While there, Attorney Friedman provided defense litigation to the insurance industry with significant, successful jury trial experience in New York and New Jersey.
Friedman made the move as American European Group elected to outsource all its legal work effective June 1. Friedman will bring his case load to Gibson & Behman and will be on a preferred list for future insurance litigation. He said that he plans to continue to maintain a close working relationship with American European Group.
“Gibson & Behman is an excellent match for me,” said Friedman, who added, “I am very happy to be joining this premier firm in this leadership role.”
Friedman earned his Juris Doctor from New York Law School and was Associate Editor of the Law Review. His legal work prior to American European Group included serving as an Associate Attorney for the New York law firms of Rubin Gross Harris Fischl & Roth, and Flower & Plotka. From December 1989 to May 1991 he was Associate Attorney for Blodnick Abramowitz Newman & Bass P.C., Lake Success, NY.
Friedman’s appointment to the Co-Director position was announced by Daniel P. Gibson. In making the announcement he said, “when American European Group made the strategic decision to outsource its legal work rather than continue with in-house counsel, we knew that Daniel could opt to continue to handle his extensive case load independently or join another firm. We feel strongly that he is an excellent fit for our firm and our vision for growth.”
Gibson continued, “Daniel is highly-respected and extremely capable. His track record, and his reputation for excellence, both speak for themselves. We are fortunate to have him as part of our family.”
Harold Graham appointed to Director’s position at Gibson & Behman’s Boca Raton office
Harold Graham of Boynton Beach, FL has been named to the position of Director of the Boca Raton offices of Gibson & Behman. Graham, the first non-attorney selected by this firm to head one of its offices, is a well-renowned veteran of the insurance industry. He will oversee the day-to-day operations of the growing law firm’s newest office, located at 4400 North Federal Highway.
Daniel P. Gibson explained, “our firm has developed a number of niche markets, and working in the insurance industry space is one of them. We believe that Harold’s impressive and extensive insurance industry experience will help us expand our marketshare in this fast-growing region.”
Graham has served in a number of leadership roles with Kemper Insurance Group. He joined the industry giant in 1967 serving as a Claims Adjuster in their Newburgh, NY office. From 1970 to 1971 he was Liability Supervisor for the New York City Claims Department, where he was responsible for the front-line supervision of five adjusters. He later served in Kemper’s home office in Long Grove, IL where he assisted the Vice President in Claim Administration. He also served as the company’s Claims Department Manager at their Houston, Tampa and New York City locations.
In New York, he was responsible for the administrative and technical operation of Kemper’s largest claim office, and ultimately oversaw Kemper’s New York City Division of Kemper Group’s one and five year plans.
He also served two years on the Claim Committee for the New York State Motor Vehicle Accident Indemnification Corporation. In addition to insurance, he has worked with a retail credit company. The New York City native was also a Lieutenant in the Middletown, NY Fire Department.
“We are delighted to welcome Harold to our family,” said Gibson, who added, “With the growing demand for legal representation in the insurance industry, we felt that having someone with Harold’s credentials will serve our clients and our firm very well. Harold is a bright, experienced individual and we are confident that he will be invaluable to our practice and our new location.”
Daniel P. Gibson authors review of “Entertainment Litigation” for Massachusetts Lawyers Weekly
GIBSON & BEHMAN WINS DEFENSE VERDICT IN BRAIN INJURY CASE
Attorneys Dan Shanahan and Charlie Hambelton of Gibson & Behman’s Burlington office recently obtained a defense verdict in a premise liability case involving a serious brain injury. The plaintiff alleged that during the afternoon of “Marathon Monday” in April, 1998, he and his three companions arrived at Copperfield’s, a lounge/bar located next to Fenway Park, after attending a Red Sox game. While attempting to leave Copperfield’s, the plaintiff was stopped by an employee, who directed the group out of a rear emergency exit, where a loading dock type structure was located. As the plaintiff and his group exited the premises, the plaintiff fell from a two foot drop off the loading dock into the alley behind Copperfield’s, striking his head on the pavement. As a result, the plaintiff alleged he suffered a subdural hematoma, which was later discovered and surgically evacuated at a local hospital. The plaintiff claimed he was permanently and totally disabled, and the brain injury exacerbated his pre-existing seizure disorder.
The defense argued that Copperfield’s reasonably maintained the loading dock area, it was not unreasonably dangerous, and the condition was “open and obvious”. The defense also argued that the subdural hematoma, which was discovered three weeks after the alleged fall, was not causally related. The defense presented evidence that the plaintiff had treated at two Boston hospitals between the time of the alleged fall and the discovery of the subdural hematoma, and there was no mention of head trauma in either hospital record. The defense also presented medical expert testimony from a neurologist and neuroradiologist, who testified that the subdural hematoma was, at a maximum, seven days old, and could not have occurred three weeks earlier as alleged by the plaintiff. The case was further complicated by the fact that the plaintiff had a pre-existing seizure disorder as a result of head trauma sustained in the same general area that the subdural hematoma formed.
After seven days of trial and evidence, a Suffolk County jury found that Copperfield’s was not negligent. The case was filed in 2001, and there was approximately eighty-five percent pre-judgment interest that had accrued up to the time of trial. The plaintiff’s original demand was $600,000. At time of trial, the plaintiff lowered his demand to $300,000.
Gibson & Behman, P.C. sponsors team in Pelham Fritz Basketball League
G&B is proud to be a sponsor of The Suns, a Pro-Am basketball team and member of the Pelham Fritz Basketball League.
Named in memory of the former assistant recreation commissioner of New York City, the Pelham Fritz Basketball League is a charitable organization and overseer of a scholarship fund that since 1998 has awarded scholarships to deserving high school seniors who have achieved academic excellence and demonstrated dedication to community service.
The league showcases veteran basketball stars, including ex-NCAA Division 1 standouts, former NBA greats, Rucker Pros and playground legends, all of whom still demonstrate “hoops” prowess during highly attended and regularly scheduled games played at the Harlem Square Garden.
Among team members of The Suns are Ken Bantam, formerly of the New York Knicks; the Atlanta Hawks Steve Berrt; Kevin Williams formerly of the Milwaukee Bucks; and Gibson & Behman’s own Eugene Poston, the firm’s Manager of Office Services and a former College Division 1 star in his own right.
“My NBA dream didn’t come true but I’m proud to say that I have played with some of the best,” said Poston. “But being a member of The Suns is not about individual achievement – it’s about a team effort to give back to the community and assisting deserving youth in getting a helping start in life.”
“We take great pleasure in sponsoring The Suns as members of the highly distinguished and entertaining Pelham Fritz Basketball League,” said Daniel P. Gibson, co-founder and Chairman of Gibson & Behman, P.C. “Through the continuing efforts of League members and their sponsors, young men and women have been granted opportunities to pursue academic goals and achievements.”
GIBSON & BEHMAN, P.C. ONE OF TWO FIRMS RECENTLY ASKED TO GIVE OPINION TO TOWN COMMITTEE
Gibson & Behman, P.C. was one of two firms who were recently hired as special counsel by the Town of Burlington to render an opinion regarding the interpretation and application of zoning bylaws. The Immigration and Customs Enforcement Agency (ICE), part of Homeland Security, has entered into a 10 year lease for a building in Burlington. This ICE office will be the New England headquarters and will employ approximately 120 workers whose jobs are to find and deport illegal aliens.
As part of that job function, ICE would bring illegal aliens to the building and put them in holding cells while they are being processed. The issue was whether this activity was in violation of the zoning bylaw governing the uses that could take place in the building. Significantly, when the permits were initially issued, the building was zoned for office use.
As part of the opinion, Gibson & Behman, P.C. had to review the zoning bylaws for the Town of Burlington, local and national court opinions regarding rescission of a building or occupancy permit, as well as the issue of federal preemption. Gibson & Behman presented its opinion to the Committee on January 17, 2008.
Gibson & Behman Successfully Defends Town By Winning Motion for Summary Judgment
G&B’s Burlington office recently prevailed for the City of New Bedford on a motion for summary judgment, vitiating plaintiff’s claim against the city. This case arose out of a motor vehicle accident, which plaintiff alleged was caused by the City’s negligent maintenance of an allegedly obstructed stop sign.
G&B argued that an obstructed stop sign qualifies as a defect under M.G.L. c. 84 and as such, is subject to strict notice requirements which the Plaintiff failed to meet. M.G.L. c. 84 provides the exclusive remedy for persons who are injured as a result of “a defect or want of repair” on a public way.
Plaintiff argued that the obstructed stop sign properly falls under the Massachusetts Torts Claims Act under G.L. c. 258. Plaintiff additionally argued that whether the defect fell under G.L. c. 84 was a question of fact to be left for the jury. To support said arguments, plaintiff relied on cases such as Mamulski v. Easthampton, where a missing stop sign was the proximate cause of a motor vehicle accident. G&B countered that Mamulski was a wrongful death action, which is distinguishable from the case at hand.
Judge Nickerson agreed with the firm’s assertion that G.L. c. 84 applied to the facts of this case. As such, plaintiff’s failure to give timely notice to the Town, pursuant to the statute, vitiated her cause of action. Co-defendant, owner of the tree obstructing the stop sign, was found to have no right of contribution or indemnification from the Town as the Town was not directly liable to the plaintiff.
GIBSON & BEHMAN OBTAINS SUMMARY JUDGMENT IN LIQUOR LIABILITY CLAIM
Daniel J. Shanahan, Esq., from Gibson & Behman’s Burlington office, successfully argued a summary judgment motion in Essex Superior Court where the question was whether the defendant bar recklessly served alcohol to the plaintiff, who was involved in a one-car motor vehicle accident wherein he seriously injured himself.
On October 18, 2002, the plaintiff and three co-workers patronized the defendant’s bar located in Boston. They arrived at approximately 5:00 p.m., after each had consumed an alcoholic beverage at a nearby establishment. The plaintiff and his friends remained at the defendant’s bar for approximately one and one-half hours, during which time the plaintiff consumed between five and seven drinks containing vodka and cranberry juice. Upon leaving the bar, the plaintiff believed he was capable of driving home without incident. However, as plaintiff was walking to his car, he felt intoxicated. Upon reaching his car, plaintiff began his fifty minute drive home. Approximately forty-five minutes later, while driving, the plaintiff briefly lost consciousness. The vehicle traveled across several lanes, off the road, and rolled several times. No other vehicles were involved in the accident. As a result, the plaintiff suffered serious injuries, including several fractured cervical vertebrae.
In Massachusetts, under General Laws Chapter 231, section 85T, in a situation where an intoxicated person injures himself, the plaintiff must show “willful, wanton, or reckless conduct on the part of” the person who furnished the alcoholic beverages. Willful, wanton or reckless conduct has been described as intentional conduct, by way of either commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another. Willful, wanton, or reckless conduct is distinguishable from negligence in that the defendant must knowingly or intentionally disregard an unreasonable risk.
Here, the plaintiff claimed that the defendant failed to observe him properly, failed to track how many drinks he consumed, and that they should have refused to serve him. The plaintiff further alleged that the defendant continued to serve him after he was intoxicated. The defense argued in support of its summary judgment motion that there was no evidence that the defendant served alcohol to the plaintiff when it knew or should have known he was intoxicated. The defense also argued that as a matter of law, the service of five to seven alcoholic drinks in one and one-half hours did not constitute willful, wanton, or reckless conduct.
The Court agreed, ruling that the plaintiff was unable to show that the defendant acted willfully, wantonly, or recklessly. To do so, the Court explained, the plaintiff would have to establish that the defendant knew the plaintiff was intoxicated and made a conscious decision to continue providing him with alcoholic beverages. Since the plaintiff would not be able to prove an essential element of his claim at trial, the Court entered summary judgment in favor of the defendant.
REJECTION OF CERTAIN SPECIAL DEFENSES IN DRAM SHOP CASES INCREASE POTENTIAL LIABILITY FOR BARS IN CONNECTICUT
Wylie v. Trio’s Bar and Grille, LLC, 43 CLR 275
In Wylie v. Trio’s Bar and Grille, LLC, the plaintiff claimed that she suffered injuries while a passenger in a motor vehicle operated by a driver who was intoxicated after the bar served him alcohol while he was in an intoxicated condition. The plaintiff alleged that the bar engaged in reckless conduct in serving alcoholic beverages to a driver. She also sought recovery pursuant to Conn. Gen. Stat. § 30-102, the Dram Shop Act.
One of the bar’s special defenses alleged that the plaintiff’s injuries and losses were a result of her own reckless conduct in that she agreed to get into the motor vehicle of an individual who she believed to be intoxicated, and that said conduct barred her from recovery. Another of the bar’s special defenses alleged that the plaintiff assumed the risk that she would sustain serious injury when she agreed to be a passenger while knowing the driver was intoxicated. The plaintiff thereafter moved to strike the special defenses of participation and assumption of the risk.
Although a split of authority existed on the issue, the court ultimately rejected both special defenses, recognizing that there was no sound policy reason for allowing an establishment that had willingly engaged in conduct potentially injurious to the public and itself, in disregard to the consequences of such conduct, to absolve itself of such responsibility. This decision is significant in that it increases the potential liability of a liquor establishment in actions involving reckless service of alcohol or dram shop actions.
FOUR-PRONGED REASONABLE FORESEEABILITY TEST MANDATORY FOR RECOVERY IN NIED CASES IN CONNECTICUT
Wastel v. Kosloff , 43 CLR 277
In Wastel v. Kosloff, the plaintiff driver alleged that liquor establishments served alcohol to a customer while he was intoxicated. Subsequently, the customer, as a pedestrian, was struck and killed by the plaintiff driver. Although the plaintiff did not have any relationship with the customer, he sued the liquor establishments for mental and emotional pain and suffering as a result of his contemporaneous sensory perception of injury to the customer upon impact.
The driver alleged a claim pursuant to Conn. Gen. Stat. § 30-102, the Dram Shop Act. The defendants moved to strike the claim, contending that “injures the person” under Conn. Gen. Stat. § 30-102 should be limited to only bodily injuries. The court found that the term “personal injury” was broader than “bodily injury” and should effectively encompass damages for emotional distress. The court then went on to acknowledge that the plaintiff failed to meet the four-pronged reasonable foreseeability test that governed bystander recovery for emotional distress in these types of circumstances. The test requires:
- The plaintiff must be closely related to the injury victim.
- The emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter, but before substantial change has occurred to the victim’s condition or location.
- The injury of the victim must be substantial, resulting in death or serious physical injury.
- The bystander’s emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response.
The court recognized that the plaintiff failed to meet the first prong of this test because there was no allegation of any relationship between the plaintiff and the victim. The issue was raised as to whether the first prong of the test could be waived because the plaintiff was not merely a bystander, but rather an “unwitting instrument” or “participant” in the victim’s death. The court ultimately declined to accept unwitting instrument status as a substitute for the existing requirement of close personal relationship for two reasons: first, unwitting instrument status, or mere innocent presence in the causal chain, is a factor so variable that it does not meaningfully distinguish between claims that should be allowed and claims that should not; second, the court recognized the prongs of the reasonable foreseeability test were not mere factors to consider, but mandatory conditions that must be satisfied in order to recover in these types of situations.
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