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The owner of a tavern in Lowell, Mass., was not liable for the rape of a highly intoxicated customer because the crime was committed off premises and it could not have been foreseen by the owner, the Massachusetts Appeals Court has ruled. In the case of Westerback v. LeClair Co., Inc. (98-P-481), the Appeals Court last week found that Superior Court Judge Carol S. Ball had correctly ruled in her 1997 decision that this was not a case in which the rape was “reasonably foreseeable” by the proprietor of the tavern. As such, Ball was correct in granting LeClair Co., the owner of Gus and Paul’s tavern, its motion for summary judgment, the court stated. “We are aware of no Massachusetts appellate decision holding that a tavern owner may be found liable for an intoxicated patron’s injuries that were caused by a criminal act perpetrated off the tavern’s premises by individuals who had no connection to the tavern,” wrote Appeals Court Chief Justice Christopher J. Armstrong for the court in the Sept. 27 decision. Newburyport, Mass., lawyer Mark W. Griffin, who along with North Andover, Mass., attorney H. Ernest Stone, represented the plaintiff, Carol Westerback, said they are considering an appeal of the decision. Although they have not yet narrowed down on which grounds they would appeal, it’s their contention that the issue of “foreseeability” should have gone in front of a jury, Griffin said. North Andover lawyer Andrew D. Myers, who represented the tavern with Lowell attorney Robert J. Carnevale, said while they have empathy for what happened to Westerback, the case went beyond the scope of a dramshop case. “This case is so remote in terms of time and place,” said Myers, who noted that Westerback was brought to a location away from the tavern where she was raped and beaten. In addition, the two men had no connection to the tavern, he said. In arguing the defendant’s position, Myers said there are only two groups of cases in which certain behavior was considered foreseeable so that a seller of alcoholic beverages could be held liable. In one group, sellers of alcohol have been found liable in situations where injuries result from the acts of drunken patrons on the premises, whether they injure themselves or others, he said, citing the cases Wood v. Ra-Al Caf� Inc., 349 Mass. 766 (1965) and O’Hanley v. Ninety-Nine Inc., 12 Mass. App. Ct. 64, 68-69 (1981). The other group of cases, Myers noted, is in situations where a drunken patron inflicts injuries on others by negligent driving after leaving the premises, citing the case Adamian v. Three Sons Inc., 353 Mass. 498, 499-501 (1968). The issue for the Appeals Court was whether Ball was correct in ruling that Westerback’s injuries were not caused by Gus and Paul’s serving her alcohol while she was intoxicated. Westerback sued the tavern for negligence and negligent infliction of emotional distress, contending that her injuries resulted from its having served her alcohol knowing she was intoxicated. According to the Appeals Court decision, in 1992, Westerback, before arriving at Gus and Paul’s, drank about a dozen beers during the day. That evening she bought and drank two more beers at a liquor store before going to the tavern. She arrived at the tavern highly intoxicated and stayed for about four more hours, drinking two hard-liquor drinks and five more beers. She left the bar at about 11:30 p.m., visibly drunk, and was even helped to the door. Two men saw her staggering down the street and offered her a ride home. The two men drove her to a friend’s trailer where they beat and raped her and left her in the woods nude and injured. Although questions of reasonable foreseeability are usually left for a jury to decide, the Appeals Court ruled that a judge may properly decide them as a question of law “where the harm suffered, although within the range of human experience, is sufficiently remote in everyday life as not to require special precautions for the protection of patrons,” citing the case of Barnes v. Geiger, 15 Mass. App. Ct. 365, 367-369 (1983). There is nothing in the evidence in the case to suggest that the rape was reasonably foreseeable (see Whitaker v. Saraceno, 418, Mass. at 200-201) “unless one can draw the inference, simply from the general vulnerability of drunks that they will likely be targeted by criminals — perhaps muggers or, as here, a rapist. A real difficulty with permitting a jury to draw such an inference is that most persons who drink alcoholic beverages are, to some extent, temporarily impaired, even if only slightly; the question of how impaired would inevitably be one for the jury; and owners and managers of taverns and licensed restaurants and clubs would in effect become the insurers of their patrons against criminal attacks,” the Appeals Court wrote.

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