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Pollard v. Powers11/22/2000
ented here. The judge erred, however, in concluding that " 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. "It is in this context that the sufficiency of the plaintiff's evidence must be assessed." Husband v. Dubose, 26 Mass. App. Ct. at 670.
The trial judge relied on Husband v. Dubose, supra, in holding, as matter of law, that the defendant owed no duty to the plaintiff because he was "sucker-punched." In essence, the motion judge concluded that, as matter of law, the harm was not foreseeable. The fact that the assault here was a "sucker-punch" rather than a different type of assault is not dispositive. "The specific kind of harm need not be foreseeable as long as it was foreseeable that there would be harm from the act which constituted the negligence, provided it was foreseeable that there would be violence toward others." Carey v. New Yorker of Worcester, Inc., 355 Mass. at 454. As in Carey, it is for a jury to determine whether the assault was such a remote possibility that it was an intervening cause of harm. See ibid. Contrast Poskus v. Lombardo's of Randolph, Inc., 423 Mass. 637, 640 (1996) (specific harm that occurred to third party not a reasonably foreseeable consequence of defendant's negligence as matter of law).
In reviewing the summary judgment materials in a light most favorable to the nonmoving party, there was a sufficient showing from which a jury could find that a reasonable host should have foreseen danger. The uninvited assailants were very drunk, and "loud and obnoxious" when they arrived at the party. The assailants drank from the kegs made readily available by the defendant. The defendant knew that, except for these four men, everyone at the party was a friend or an acquaintance. The presence of the four made her uneasy, yet they were not asked to leave and were allowed to remain at the party. As evidence of her concern about these four men, she requested that the plaintiff remain at the party. Even though she was apprehensive, the defendant did not monitor these men, nor did she ever speak with them. She spent a good portion of time talking to her ex-boyfriend in another part of the house. One member of the group verbally assaulted the defendant's sister and, even when told of this, the defendant took no action. Her admitted reason for not calling the police was that she was engaged in illegal behavior, i.e., giving an illegal, underage drinking party.
Based on the circumstances presented here, it is appropriate for a jury to determine whether the defendant neglected her duty to her guests and failed to protect the plaintiff from foreseeable harm. Contrast O'Flynn v. Powers, 38 Mass. App. Ct. 936, 937 (1995). The judgment is accordingly reversed, and the case is remanded to the Superior Court for further proceedings.
So ordered.
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