Flood v. Southland Corp.

O’Connor, J.

(concurring in part and dissenting in part, with whom Lynch, J., joins). I agree that the trial judge erred in not putting to the jury the question whether Darcy intentionally stabbed the plaintiff. Also, I agree that, if the case against Southland Corporation (Southland) is retried, Darcy’s guilty pleas should be admitted in evidence against the plaintiff and Darcy. However, I do not agree that the case against Southland ought to be remanded for a new trial. In my view, the judge erred in denying Southland’s motions *74for a directed verdict and for judgment notwithstanding the verdict. The judgment against Southland should be reversed and the court should order the entry of a judgment in South-land’s favor.

Surely, as the court states, ante at 72, “Southland owed a duty of reasonable care to the plaintiff ... to prevent injury by third persons whether their acts were accidental, negligent, or intentional.” The question raised by Southland’s motions for a directed verdict and judgment notwithstanding the verdict and this appeal, though, is whether the evidence most favorable to the plaintiff warranted the jury’s finding that Southland had violated that duty either by doing something that in all the circumstances a reasonably prudent storekeeper would not have done, or by failing to do something that in all the circumstances a reasonably prudent storekeeper would have done, thereby proximately causing the plaintiff’s injuries. In support of its determination that the judge correctly denied Southland’s motions, the court says little more than that the Appeals Court conducted a proper analysis and reached the right result. The court refrains from discussing the evidence except for noting that the plaintiff’s injuries were sustained when the defendant Darcy stabbed the plaintiff outside the Wakefield 7-Eleven store operated by Southland, ante at 63, and Southland’s employee knew that Darcy and the plaintiff were “pretty high” and that Darcy had a knife. The court also notes that, when the stabbing occurred, Darcy, the plaintiff, and two other boys were gathered just outside the store where the clerk could not see them.

The following is a more complete recitation of the relevant evidence. The plaintiff and Darcy, both seventeen years old, had been friends for a long time. On the evening that Darcy stabbed the plaintiff, the two boys had attended a party at which they had drunk a considerablé amount of beer and Darcy had smoked marihuana. Darcy normally carried a buck knife in a sheath on his belt and he had the knife with him when he went to the party. He gave it to someone at the *75party for use in connection with a beer keg. Darcy did not see the knife again until he was at the 7-Eleven store.

Darcy, the plaintiff, and two other boys left the party and they entered the 7-Eleven store shortly before midnight. The store clerk, Southland’s employee Thomas Conomackos, testified in a deposition as follows: The boys “fanned out. So I figured they were up to some shinnanegans. They were walking around the store. I was trying to keep an eye on everybody. They made a few small purchases. One of the guys bought a sandwich. I think it was Darcy. Initially there was no real incident or anything. I just thought they were — basically I thought someone was going to try and grab something. So I watched them. And off they went outside.” According to Conomackos, the boys “seemed like they were pretty high.” Conomackos testified that, about fifteen minutes after the boys first went into the store, Darcy returned to complain about the sandwich he had bought. “He said he didn’t like the sandwich. It was cold. It was a frozen sandwich to begin with. He had eaten over half of it. I said I can’t give you your money back. I just had the feeling he was just trying to get his money back. He ate what he wanted. He just had an attitude. So I told him he’d better leave. He said something. He wasn’t really quite confronting me, but he was muttering some things. I said to watch what you say and get out of the store.” Conomackos testified that a few minutes after Darcy left the store, Conomackos had a conversation with the plaintiff: “Basically he was telling me — he was giving me a warning that this kid, that Darcy was pretty upset about the sandwich. And he had a knife. And he was intimating to me that there may be some trouble and for me to be careful. I told him don’t worry about it, I can handle myself and tell his cohort there not to do anything foolish.” Then, according to Conomackos, the plaintiff went outside the store to an area called the “blind spot” that could not be seen from inside the store. About ten or twelve minutes later, one of the boys came into the store and told Conomackos that the plaintiff had been stabbed.

*76Darcy,' too, testified that there was no problem when the boys were in the store. He also testified that, outside the store the plaintiff said “something to the effect ‘[Y]ou want to fight?’ kiddingly, and showed me my knife.” That was the first time Darcy had seen it since giving it to someone at the party. When the plaintiff asked Darcy if he wanted to fight, Darcy testified that he “[j]ust went over to [the plaintiff], and kind of grabbed him, just tried to get [the knife] away from him.” He testified, “[W]e just kind of wrestled around, and I don’t know how I got it back, but I got the knife back.” The next thing Darcy knew, he “was against the wall, and [the plaintiff] was holding [Darcy] up against the wall with his arm up against in front of [Darcy’s] neck, and his other hand up. . . . [The plaintiff] said that he was going to hit [Darcy]” and Darcy said “that if he hit [Darcy] that [Darcy would] stab him.” According to Darcy’s testimony, the plaintiff “just slapped [him] across the face,” and then Darcy stabbed the plaintiff. When he realized what he had done, Darcy testified, he said something like, “Oh, my God,” and he hugged the plaintiff. Then, the plaintiff told Darcy to run.

Paul Scott, who was one of the four boys in the 7-Eleven store, testified that there were no problems in the store; that it was “pretty quiet.” He testified that, after buying some things, the boys went outside, sat down, ate their sandwiches, talked and “nothing was going on,” until the plaintiff and Darcy scuffled. When the plaintiff said, “I’m going to punch you,” and Darcy said, “If you do, I’m going to stab you,” the boys “didn’t think anything about it, because it was sort of horseplay.”

The recitation of evidence set forth above fairly states in the light most favorable to the plaintiff all the eyewitness testimony concerning the events surrounding the plaintiff’s injury. In addition to that testimony, the plaintiff “introduced in evidence numerous internal documents of Southland concerning security and loss prevention due to robbery. Included in the robbery prevention material designed for employees was a directive that clerks ‘know what’s happening outside *77the store.’ ” 33 Mass. App. Ct. at 292. The plaintiff also introduced the deposition testimony of Southland’s northeast division loss prevention manager that “Southland was concerned about gang unruliness as well as robbery. He stated that from the point of view of safety it was important that the store clerk have a clear view outside the store.” Id.

In addition, the plaintiff introduced the testimony of a security expert who “testified that the design of the Wakefield 7-Eleven was inadequate because there was a blind spot which blocked the clerk’s view of activity outside the front of the store. It was [the expert’s] opinion that there was a ‘negligent situation’ at the Wakefield 7-Eleven because the store personnel were not adequately trained in security and the store lacked security officers and security hardware such as closed-circuit television and direct alarm systems to a central station or the police. [The expert] also testified that Co-nomackos should have called the police when he noticed that the boys were intoxicated and presented an inflammatory situation. He should have been aware of the activities outside the store, and he should have called the police when he learned that Darcy had a knife.

“Wakefield police reports were introduced showing that between January 1, 1978, and August 31, 1979, forty-two calls had been made requesting police assistance at or about the 7-Eleven store’s premises for reasons including ‘kids causing trouble,’ ‘youths causing disturbance’ and ‘youths fighting.’ ” Id. at 292-293.

Relying not only on the evidence that bore on the events leading up to the stabbing,1 but also on the aforementioned police reports about “youth disturbances” and the testimony of Southland’s loss prevention manager and the plaintiff’s ex*78pert, the Appeals Court concluded, 33 Mass. App. Ct. at 298, that “[i]t is not necessary that Southland have foreseen precisely the manner in which [the plaintiff’s] injuries were inflicted. See Luz v. Shop & Shop, Inc. of Peabody, 348 Mass. 198, 204 (1964). It is enough that Southland should have realized that there was preventable real danger to its patrons. See Carey v. New Yorker of Worcester, Inc., [355 Mass. 450, 452 (1969)].”

Today, the Supreme Judicial Court agrees with the Appeals Court’s holding and rationale, stating that “[a] jury would be warranted in [the] circumstances in determining that a risk of harm, the stabbing of someone, was reasonably foreseeable. See Carey v. New Yorker of Worcester, Inc., supra at 451-453. The way in which the stabbing occurred and the fact that the plaintiff might be the one to be harmed need not have been reasonably foreseeable. That these events occurred within the reasonably foreseeable risk of harm was enough to present a jury question.” Ante at 73.

I disagree. Perhaps it is fairly arguable that the evidence warranted a finding that operation of the type of store that was involved in this case without the store clerk having a full view of the premises outside the store and without security officers, closed-circuit television, and a direct alarm system constituted negligence. I need not discuss that point because, in any event, the evidence was clearly insufficient to prove that any such negligence was the proximate cause of the plaintiff’s injuries.

This case bears little resemblance to Carey v. New Yorker of Worcester, Inc., supra, on which the Appeals Court and this court rely. In Carey, the plaintiff, a patron in the defendant’s bar and restaurant, was shot by another patron. The assailant was “ ‘[absolutely drunk,’ and for some time had been staggering up and down the aisle going back and forth to the entrance to the bar, and yelling toward someone at the bar or for the waitress. He was loud and very noisy, ‘just a fresh kid.’ On two previous occasions he had been made to leave the premises by the police, and had twice been refused service. He was known to be a troublemaker by the *79defendant’s employees. He looked young and was under age. On [the occasion of the shooting] his group of four was served two rounds of whiskey and beer by the waitress. Of this he drank whiskey. He had been drinking elsewhere before he arrived at the defendant’s premises.” Id. at 451. In concluding that the evidence was sufficient to impose liability, the court reasoned: “It was open to the jury to find that the defendant’s employees had general knowledge of [the assailant’s] previous experience as a patron and should have realized on the occasion [there] considered the need for repressing him. . . . The defendant [was] in error in claiming that there were no warnings of trouble. There had been commotion and boisterous behavior and continued drinking. That there had been no express threat to any patron is not conclusive. The jury in their judgment could find that the defendant’s agents should have realized that there was real danger to others. ... In the case at bar [the assailant] was an ac-. tive participant in a steady disorder.” Id. at 452. In Carey, the court held that that case fell “within the authority of McFadden v. Bancroft Hotel Corp. 313 Mass. 56 [1943], Quigley v. Wilson Line of Mass. Inc. 338 Mass. 125 [1958], and Kane v. Fields Corner Grille, Inc. 341 Mass. 640 [1961].” Id. at 452-453. In each of those cases, as in Carey, the evidence showed that the plaintiff, a patron of the defendant, was assaulted by another patron who was not only drunk but also had been boisterous and causing commotion prior to the assault. Those facts are significantly different from the facts of this case. Here the evidence did not suggest that Darcy was boisterous or generally disposed to aggression until immediately before the stabbing. The uncontradicted evidence was that there were no “problems” while the boys were in the store and there were no problems afterward, when they were outside the store, until the plaintiff asked Darcy if he wanted to fight. For all that appears, the stabbing took place immediately, or almost immediately, after the plaintiff spoke those words, much too soon for Co-nomackos, even if he had seen and heard everything that happened, to take preventive measures. Thus, if the negli*80gence the court has in mind is the lack of visibility of the premises outside the store from within, that negligence cannot properly be considered a cause, proximate or otherwise, of the plaintiffs injuries.

There is some suggestion in the opinion of the Appeals Court, apparently accepted by this court, that, apart from the design of the store, the jury also could have found the defendant negligent based on the plaintiffs expert’s testimony that, when Conomackos learned that Darcy had a knife (not “displayed” a knife — see note 1, supra), Co-nomackos should have called the police, which he did not do. If it be assumed that the jury would have been warranted in finding Southland negligent on the strength of that evidence alone, or on the strength of that evidence together with the police reports, which is a dubious proposition, it does not follow that Southland’s motions for a directed verdict and judgment notwithstanding the verdict were properly denied. The evidence was insufficient to show causation because the jury could only have speculated with regard to whether, had Co-nomackos notified the police that there was a boy outside the store, who was “high” and had a knife in his possession (and did not enjoy his sandwich), the police would have responded soon enough to have prevented the stabbing. The fact that the police arrived at the store five minutes after they were told that a stabbing had occurred sheds no light on that very different question. Also, as to causation, no help to the plaintiff is provided by the police reports, the testimony of South-land’s loss prevention manager, or the testimony of the plaintiffs expert. That evidence bore only on the question of negligence, not causation.

The evidence does not warrant a finding that negligence of Southland caused the plaintiffs injuries. Southland’s motions challenging the sufficiency of the plaintiffs evidence to warrant a verdict for the plaintiff should have been allowed. The motions should have been allowed for another reason, too. There was insufficient evidence, as a matter of law, to prove proximate causation. The absence of such evidence should be fatal to the plaintiffs case.

*81“Where as here the original negligence of the defendant is followed by the independent act of third persons which directly results in injurious consequences to the plaintiff, the defendant’s earlier negligence may be found to be the direct and proximate cause of those injurious consequences, if according to human experience and in the natural and ordinary course of events the defendant ought to have seen that the intervening act was likely to happen. But if this is not the case, if the intervening act which was the immediate cause of the injury complained of was one which it was not incumbent upon the defendant to have anticipated as reasonably likely to happen, even though a high degree of caution would have shown him that it was possible, then he owed no duty to the plaintiff to anticipate such further acts, the chain of causation is broken and the original negligence cannot be said to have been the proximate cause of the final injury. Lane v. Atlantic Works, 111 Mass. 136 [1872], Stone v. Boston & Albany Railroad, 171 Mass. 536 [1898]. Glassey v. Worcester Consolidated Street Railway, 185 Mass. 315 [1904]. Jacobs v. New York, New Haven, & Hartford Railroad, 212 Mass. 96 [1912]. In these cases the earlier decisions are so fully cited that we need not refer to them.”

Horan v. Watertown, 217 Mass. 185, 186 (1914). See Jesionek v. Massachusetts Port Auth., 376 Mass. 101, 105-106 (1978); Addison v. Green Cafe, Inc., 323 Mass. 620, 622-623 (1949); Morrison v. Medaglia, 287 Mass. 46, 49-50 (1934); Falk v. Finkelman, 268 Mass. 524, 527 (1929); Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 517 (1929).

Any negligence of Southland in this case was followed by the independent act of Darcy — stabbing the plaintiff — and the evidence did not warrant a finding that, “according to human experience and in the natural and ordinary course of events the defendant [or its servant, Conomackos] ought to have seen that the intervening act was likely to happen.” Horan v. Watertown, supra at 186. It is indeed foreseeable *82that a drunken, boisterous patron, if not controlled, will ultimately harm anyone within his reach, as was the case in Carey v. New Yorker of Worcester, Inc., 355 Mass. 450 (1969), and the cases relied on by the Carey court, but it is not foreseeable “as reasonably likely to happen,” Horan, supra at 186, that an intoxicated customer known to be in possession of an undisplayed knife while at a store with three friends, who is neither boisterous, nor aggressive, nor displaying hostility toward anyone other than the store clerk, would turn on one of his friends and stab him. The case of Foley v. Boston Hous. Auth., 407 Mass. 640 (1990), is instructive. There, the plaintiff was assaulted by a fellow employee of the defendant housing authority. The court concluded that, despite the fact that the defendant could have foreseen that a tenant might assault the plaintiff, id. at 645, there was no evidence that a fellow employee might attack him, and therefore the attack was “outside the scope of the risk of foreseeable harm.” Id. at 646. Here, too, even if the jury would have been warranted in finding that Darcy might assault Conomackos, there was not the slightest hint in the evidence that South-land or its employee should have foreseen that Darcy would stab his friend.

I would reverse the judgment and order the entry of judgment for the defendant.

The Appeals Court states that Conomackos, the store clerk (night manager), “knew that Darcy was displaying a knife,” and that “[t]he stabbing took place about ten to twelve minutes after Conomackos was told of the knife.” Flood v. Southland Corp., 33 Mass. App. Ct. 287, 298 (1992). See also supra at 75-76. There is no evidence in the record that Darcy “displayed” a knife before he wrested his knife from the plaintiff and immediately stabbed him.