Pollard v. Powers

738 N.E.2d 1144, 50 Mass. App. Ct. 515, 2000 Mass. App. LEXIS 992
CourtMassachusetts Appeals Court
DecidedNovember 22, 2000
DocketNo. 98-P-1653
StatusPublished
Cited by6 cases

This text of 738 N.E.2d 1144 (Pollard v. Powers) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pollard v. Powers, 738 N.E.2d 1144, 50 Mass. App. Ct. 515, 2000 Mass. App. LEXIS 992 (Mass. Ct. App. 2000).

Opinion

Brown, J.

This is an appeal by the plaintiff from summary judgment granted in favor of the defendant. The plaintiff seeks damages for his injuries arising out of an assault at a party for which the defendant, Laura Powers, was the host. The plaintiff asserts that the defendant’s liability should be determined by a jury. We agree.

On March 20, 1992, the defendant gave a birthday party for a friend at the house where she and her mother resided. At the time, the defendant was eighteen years of age. On the evening of the party, the defendant’s mother was out of town, visiting relatives in Maine. Prior to her mother’s departure, the defendant asked her for permission to invite “a few” guests over for the [516]*516celebration. The defendant admitted that she intended that her mother assume the number to be four or five, and her mother did so assume.

The defendant in fact invited fifteen people. By word of mouth, the party grew to somewhere between twenty to fifty persons. Most of the attendees were the defendant’s friends and acquaintances from high school, who were eighteen or nineteen years of age. The twenty-six year old plaintiff, John Pollard, was invited by Amy, the defendant’s twenty-one year old sister.

There were two kegs of beer outside on the patio in back of the house, available to all of the guests; the beer was consumed by many of them, even though most were underage. The kegs had been purchased at the defendant’s request. Her deposition indicates that she paid for them and was reimbursed by some of the guests.

During the evening, four uninvited men walked into the house. The defendant did not know three of the men; she recognized the fourth, William Pires, from high school. She did not know Pires personally, but knew him to have a poor reputation in school, notably for being a class clown. When the four arrived they were visibly very intoxicated and appeared to be “high” on drugs. They had “glassy” eyes, deficient motor skills, and were generally loud and obnoxious. In her deposition the defendant stated that she asked the honoree, “Who are these people?” He replied, “They’re guys from Fall River. Don’t worry about it.”

At some point, the plaintiff and another of the defendant’s older friends, a former boyfriend, were about to leave the party when the defendant requested that they stay because she was apprehensive about the four intoxicated men being in her house.1 Both men did stay.

Sometime later, Amy asked Pires to keep the rear door closed, to which he responded by calling her a “fucking c — .” Neither the defendant nor the plaintiff was present at the time. Amy then went upstairs and told the plaintiff what had transpired, at which time he went downstairs to speak to Pires. The plaintiff told Pires that “this is her house[;] you’re the guest,” and that he should either respect Amy or leave the premises. He also insisted on an apology. At that time, Pires’s three companions [517]*517surrounded the plaintiff and told him not to get “in [Pires’s] face.” Because of the physical presence of the four men, the plaintiff backed off and returned upstairs.

The defendant learned of the incident between Amy and Fires, but she declined to call the police at that time because she knew that the party was illegal. She was not told of the verbal exchange between the plaintiff and Fires’s companions.

About twenty minutes later, as the plaintiff was speaking with another guest downstairs, one of the four men approached him from behind and “sucker-punched” him in the face. The plaintiff stated that there had been “no comments prior to me being spun around and hit.” After he got up off the floor, he ran upstairs to tend to his injuries. When the defendant learned that the plaintiff was hurt, she ran downstairs and screamed, “Everybody out!,” and most people left. The police were not called. Shortly thereafter the four men returned to the house, broke in through two different entrances, and attacked the defendant, punching her repeatedly.

The plaintiff brought suit against the defendant and both of her parents for the injuries he sustained.2 A motion for summary judgment was allowed as to all defendants.3 The judge, relying on Husband v. Dubose, 26 Mass. App. Ct. 667 (1988), granted judgment for the defendant against the plaintiff on the basis that as a social host she had no duty to anticipate the sudden “sucker-punch” attack on the plaintiff.

The plaintiff asserts two grounds why summary judgment should not have been granted. The plaintiff first argues that a jury could find the defendant hable because, as a social host, she furnished alcohol to an already intoxicated guest who attacked the plaintiff. The plaintiff further argues that the particular harm that occurred, the “sucker punch,” did not negate liability on the basis of unforeseeability. We address each argument in turn.

1. Duty of social host. The question presented is whether a social host’s duty runs to an invitee who is assaulted at the host’s party. It is in the furnishing of alcohol to a guest that a host knew or should have known was already intoxicated that [518]*518liability may attach. McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 162 (1986). In determining the liability for a social host, “[t]he crucial consideration has been the condition of the guest ... at the time the social host . . . served him or her an alcoholic drink.” Id. at 161. See Cremins v. Clancy, 415 Mass. 289, 293-294 (1993), and cases cited therein. Here, the defendant requested the two beer kegs and paid for them. The kegs were intended for the attendees of the party and made available in such a way that they could all serve themselves. Compare Wallace v. Wilson, 411 Mass. 8, 10 (1991). It is also undisputed that, when the four bad actors arrived, they were visibly very drunk, and the defendant was aware of their condition from tire moment they walked in the door. Unlike in Husband v. Dubose, supra at 667-668, the defendant “furnished” the alcohol.4 See Ulwick v. DeChristopher, 411 Mass. 401, 405 (1991); Makynen v. Mustakangas, 39 Mass. App. Ct. 309, 311 (1995).

Many social host liability cases have involved criminal acts, whether it be unlawfully driving while intoxicated, or criminally assaulting another. “It should make no difference that the plaintiffs, instead of being automobile accident victims, are victims of assault and battery . . . .” Wallace v. Wilson, 411 Mass. at 12. See Carey v. New Yorker of Worcester, Inc., 355 Mass. 450 (1969) (plaintiff shot by drunk patron of defendant). There was a sufficient showing that the defendant did have a duty of reasonable care to the plaintiff and, if the evidence at the trial is to the same effect, it is for the fact finder to determine whether that duty was violated and if the violation of the duty caused the plaintiff’s injury.

2. Foreseeability of harm. The motion judge in this case correctly articulated the duty owed by a social host to an invitee in circumstances such as those presented here. The judge erred, however, in concluding that “[a] social host has no duty to anticipate a sudden and violent attack by one guest upon another.” Here, there is evidence that could have caused a reasonable host to anticipate danger.

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Bluebook (online)
738 N.E.2d 1144, 50 Mass. App. Ct. 515, 2000 Mass. App. LEXIS 992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pollard-v-powers-massappct-2000.