Burroughs v. Com.12/9/1996
Agency, Scope of authority or employment. Massachusetts Tort Claims Act. Commonwealth, Liability for tort. Negligence, Serving alcoholic liquors to guest, Social host. Alcoholic Liquors, Liability of host, Motor vehicle.
O'CONNOR, J. The Commonwealth appeals from the denial of its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. We transferred the case from the Appeals Court to this court on our own initiative. We reverse the judgment entered in the Superior Court and order that judgment be entered for the Commonwealth.
The plaintiffs brought this action against the Commonwealth under G. L. c. 258 (1994 ed.), the Massachusetts Tort Claims Act, for the wrongful death of their decedent, Ruth T. Burroughs. The decedent was fatally injured in a motor vehicle accident that involved an automobile driven by an off duty member of the Massachusetts National Guard, Robert LaCasse. On the night of the accident, LaCasse had been served alcoholic beverages by Michael Morgante, another off duty member of the Massachusetts National Guard, at the Braintree National Guard armory, and was operating the automobile while under the influence of that alcohol.
The plaintiffs claimed at the jury trial that the Commonwealth, through its employees, was negligent and its negligence caused the decedent's death. The Judge instructed the jury on two theories of negligence. He told the jury that, if Morgante was acting within the scope of his employment as a public employee while serving LaCasse the alcoholic beverages and was negligent, the jury could find the Commonwealth vicariously liable. The Judge also instructed the jury that, if the National Guard had control over the alcohol served at the armory on the night of the accident, the jury could also find the Commonwealth liable as a social host.
The Judge instructed the jury to answer two questions: (1) "Was the defendant, Commonwealth of Massachusetts, by its employee (s) negligent?" (2) "Was the defendant, Commonwealth of Massachusetts' negligence a substantial contributing cause of the death of the plaintiffs' decedent, Ruth T. Burroughs?" The jury answered both questions, "Yes." The jury did not specify, nor were they asked to specify, whether they found the Commonwealth negligent under the vicarious liability, or under the so-called "social host," theory. Because there was insufficient evidence to support a finding either that Morgante was acting within the scope of his employment by the Commonwealth when he served the alcoholic beverages to LaCasse or that the Commonwealth, through one or more of its employees in the course of employment, negligently permitted the availability of alcohol to LaCasse at the armory on the night of the accident, we reverse the judgment.
In measuring the legal sufficiency of the evidence to warrant a finding that Morgante was acting in the scope of his employment while serving liquor to LaCasse or that the Commonwealth, through its employees, was negligent in its control of the alcohol served at the armory, the test is whether "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff." Poirier v. Plymouth, 374 Mass. 206, 212, 372 N.E.2d 212 (1978), quoting Raunela v. Hertz Corp., 361 Mass. 341, 343, 280 N.E.2d 179 (1972). In order for an inference to be reasonable, it must be based on "probabilities rather than possibilities" and must not be the result of "mere speculation and conjecture." Alholm v. Wareham, 371 Mass. 621, 627, 358 N.E.2d 788 (1976).
Viewing the evidence in the light most favorable to the plaintiffs, the e
Page 1 2 3 Massachusetts DUI Attorneys
DUI Lawyers
|