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A jury will decide whether a host is liable for injuries that a guest suffered at the hands of party crashers who arrived at a keg bash already drunk, the Massachusetts Appeals Court ruled last week. In finding that a Superior Court judge erred in granting summary judgment to the defendant host, Appeals Court Judge Frederick L. Brown ruled on Nov. 21 that there was “sufficient showing that the defendant did have a duty of reasonable care to the plaintiff.” Pollard v. Powers, No. 98-P-1653. John Pollard sued Laura Powers, who was 18 years old at the time, after he was “sucker-punched” by one of the uninvited guests at a birthday party she hosted on March 20, 1992. In reaching its decision, the court said that Powers requested and paid for two beer kegs, made the kegs available to the attendees, failed to monitor consumption and permitted the assailants to continue serving themselves even though they appeared intoxicated. The Appeals Court affirmed the notion that when a social host anticipates a violent act and does nothing, there may be liability, according to New Bedford, Mass., lawyer Michael Franco, who represents Pollard. At a deposition, Powers conceded that she had had concerns about the uninvited guests, he says. “This is the first time a set of facts had shown that a violent act should have been reasonably foreseen,” said Franco of the firm Beauregard & Burke. “This case cries for a trial.” In granting summary judgment in December 1994, Superior Court Judge Richard J. Chin relied on Husband v. Dubose, 26 Mass. App. Ct. 667 (1988), on the basis that as a social host, Powers had no duty to anticipate the sudden sucker-punch attack on Pollard. The Appeals Court disagreed and sent the case back to Superior Court for trial. DRUNK ON ARRIVAL According to the decision, four uninvited men who were unknown to Powers arrived at the party. At some point during the party, she became apprehensive about the four intoxicated men being in her house. Pollard exchanged words with one of the men and insisted on an apology for remarks that the man had made about one of the female guests. About 20 minutes later, one of the four men approached Pollard from behind and sucker-punched him in the face. After Powers learned of the attack, she cleared the house of guests. She did not call police because she knew the party was illegal. Boston personal injury plaintiff’s lawyer Marc L. Breakstone said the linchpin of the decision is that the assailants arrived at the party intoxicated and were served alcohol there. The liability in this case is akin to a dram shop case in which a bartender served a visibly intoxicated person, he said. While the Superior Court judge, in finding summary judgment for the defendant, indicated there was no warning that the unexpected punch would be thrown, the Appeals Court did find that the “boisterous and threatening conduct” of the assailants provided foreseeability that some harm might come to a guest, said Breakstone, a partner at Breakstone, White-Lief & Gluck. “This decision reinforces the notion that a social host who serves alcohol could be responsible to a third party who was harmed,” he said. Boston attorney Kimberly H. Kelley, who represents Powers, could not be reached for comment before press time. On the issue of foreseeability of harm, Judge Chin erred when he concluded a “social host has no duty to anticipate a sudden and violent attack by one guest upon another,” the Appeals Court found, noting there is “evidence that could have caused a reasonable host to anticipate danger.” The fact that the assault in this case was a sucker-punch, rather than some other type of assault, is not dispositive, the Appeals Court said. “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,” the Appeals Court’s opinion said, citing Carey v. New Yorker of Worcester Inc., 355 Mass. at 454.

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