Read the case Selwyn v. Ward, 879 A.2d 882 (R.I. 2005). The court provides the general rule regarding the law as well as the specific rule regarding the issue. Without quoting from the text, what is the general rule? What is the specific rule? Remember to keep it simple and short. No more than fifty words.

Citation: Selwyn v. Ward, 879 A.2d 882 (R.I. 2005)

Case: https://casetext.com/case/selwyn-v-ward

No. 2002-637-Appeal. the memoranda submitted by the parties, we are July 7, 2005. satisfied that cause has not been shown. Accordingly, we shall decide the appeal at this Appeal from the Superior County, Providence time. 883 County, Netti C. Vogel, J. +983 Facts and Travel Sean Feeney, Esq., Providence, for Plaintiff. In the early morning of August 26, 2000, plaintiff Robert A. Scott, Esq., Westerly, for Defendant RC and several others gathered at the home of Karen 884 Liquors. *$84 Ward (Ward), on Warwick Neck Avenue, in Warwick. The Ward property included an Present: WILLIAMS, CJ., GOLDBERG, outbuilding, referred to as "the barn," in which SUTTELL, and ROBINSON, JJ. Ward's son, Taylor, and his friends often socialized. On the night of the incident, the OPINION gathering at the barn consisted of: Bridget Selwyn, Taylor Ward, Michael A. Buonanno (Buonanno), PER CURIAM. John Cronin (Cronin), Eric Machala, Kathryn A. Marciano (Marciano), Peter Keene, Jason It's an all too familiar scenario - a group of high Petrarca, James Carvalho, and Richard Cole.' school students manage to procure some alcoholic beverages, act irresponsibly, and someone gets On the night of the incident, all those hurt. In this version, however, the injuries did not gathered in the bar were under the age of result from the consumption of illegally obtained twenty-one: Selwyn (do.b.924/1981); alcohol but from a minor igniting it and causing an Taylor (do.b. 12/13/1984) Buonanna explosion. The plaintiff, Bridget Selwyn (Selwyn (dob 2/16/1983); Cronin or plaintiff), is the victim in this tragedy, and she (dob.6/16/1981); Eric Machala (dob V/15/1981); Marciano sought to recover for her injuries from several (d.ob.4/15/1983); Peter Keene named defendants, including RC Liquors, Inc. (dob 5/6/1983); Jason Petrarca (RC Liquors or defendant). It is from a grant of [dob.9/7/1981); James Carvalho summary judgment in favor of that defendant that (d.ob 5/3/1982); Richard Cale the plaintiff appeals. (dob 5/29/1982) This case came before the Supreme Court on May The accounts of the evening's events indicate that 12, 2005, pursuant to an order directing the parties various people were smoking marijuana and/or to appear and show cause why the issues raised in ingesting ecstasy in the barn." There also was a this appeal should not summarily be decided. partially consumed 1.75-liter bottle of 190-proof After hearing arguments of counsel and reviewing grain alcohol or "Everclear" in the barn. At about setext4:30 am. on August 26, 2000, the bottle of "rapid intoxication" and that "adolescents and Everclear became the catalyst for disaster when young adults will typically engage in risky and Buonanno poured some of the grain alcohol onto dangerous behavior when severely impaired." He an open flame, causing an intense explosion that further averred that grain alcohol is extremely burned plaintiff, Marciano, and Cronin. flammable and that "[frequently adolescents and 1 Festasy is a street nime for the young adults who use grain alcohol light it on psychoactive drug fire." Doctor Paolino expressed his opinion that methylenedinsymethamphetamine; it is a "It is very foreseeable that adolescents and young stimulant and hallucinogen adults in the possession of * * * grain alcohol will frequently light it on fire." The plaintiff also It was revealed during discovery that a bottle of supplied a picture of the Everclear bottle, which Everclear had been purchased by another includes a warning about the product's adolescent, Lauren Andrews (Andrews), for a flammability. gathering at the barn the previous month." Andrews said that she purchased the Everclear at The plaintiff argued that defendant breached its RC Liquors and was not asked for proof of age. duty of care when it sold the grain alcohol to Earlier, at that gathering, Andrews mixed up a Andrews with actual or constructive knowledge of batch of "Jungle Juice" - a combination of the "fire play" allegedly linked to Everclear. She "Kool-Aid, Everclear, and vodka" - and left the conceded that there was "no allegation that this 685 remaining grain alcohol in the barn. *365 incident occurred due to the intoxication of a minor [or] that [RC Liquors] sold grain alcohol In July 2000, Andrews wins seventeen years that occasioned, in whole or in part, the old (dah621/1983) Andrews was not intoxication of a minor." She instead asserted that present at the barn on August 26, 2000, she the cause of the incident was "horseplay." The with traveling subside the United States. plaintiff argued that "[a] number of drink recipes The plaintiff amended her complaint to include and web sites encourage this fire play" and that RC Liquors as a party defendant. She alleged that purveyors of grain alcohol should be aware that defendant directly and proximately caused her those drinks are lit on fire. The plaintiff also injuries by providing Andrews with the grain argued that defendant's violation of the state law alcohol when it "knew or should have known [(1)] prohibiting sales of liquor to minors' was evidence that [ Andrews] was underage to lawfully possess of its negligence and that the statute is intended and or consume alcoholic beverages[; and (2)] that "In protect minors from injury by alcohol." it was unlawful and dangerous to others to provide Further, plaintiff asserts that the state Dram Shop grain alcohol to minors." RC Liquors moved for Act" "broadens liability." summary judgment. 4 The plaintiff used the term "fire play" te In support of her opposition to defendant's motion, refer to games that involve lighting things plaintiff submitted the affidavit of Thomas J. on fire. According to De. Paolino's Paolino, Jr., M.D. (Dr. Paolino). Doctor Paolino is affidavit: "A number of drink recipes and a physician and psychiatrist who devotes a publications encourage lighting grain substantial portion of his practice to treating doahol on fire." substance abuse issues in adolescents and young General Laws 1956 8 3-8-5 provides, in adults. In the affidavit, he said that "[the pertinent part: possession and use of grain alcohol by adolescents and young adults is extremely dangerous." He explained that consuming grain alcohol can lead to"Penalty for violations relating Judgment entered pursuant to Rule 54(b) of the in underage persons. - Any Superior Court Rules of Civil Procedure, and person who sells or suffers to be plaintiff filed a timely notice of appeal. sold on delivered any beverage to a person who has mid reached his Issues on Appeal or her twenty-first (21sip birthday The plaintiff argues that the trial justice erred by either for his or her own inst or granting summary judgment in favor of RC the use of his or her parents or Liquors because the documents produced illustrate any other person * * * shall fur the first offense be subject to a that defendant negligently caused Selwyn's fine of two hundred fifty dollars injuries by selling the Everclear to Andrews. In (5250); for the second offense, be addition, plaintiff contends that defendant's subject to a fine of five hundred alleged violation of state liquor laws establishes a dollars ($500), and for the third cause of action in negligence against defendant and any subsequent uffeme, be under the Dram Shop Act. Lastly, plaintiff asserts subject to a fine of seven hundred that defendant can be held strictly liable because filly dollars ($750)" selling grain alcohol to a minor is an 6 Rhode Island Liquor Liability Act, G.L. ultrahazardous activity. 1956 chapter 14 of title 3. Standard of Review The trial justice granted defendant's motion. After This Court reviews the grant of a motion for rejecting the testimony of Dr. Paolino on the summary judgment de novo, according to the ground that he was not qualified to give the same standards applicable to the trial justice. Town proficred opinion, the trial justice ruled that of Cumberland v. Rhode Island Interlocal Risk plaintiff's claim failed on the element of Management Trust, Inc., 860 A.2d 1210, 1214 foreseeability. The trial justice reasoned: (R.I. 2004). We consider the evidence presented, without evaluating its weight or credibility, and "There is no nexus, by statute or by will affirm the granting of summary judgment "if, common law, that would find that the after reviewing the admissible evidence in the conduct, if any, of the defendant in selling light most favorable to the nonmoving party, we "856 grain alcohol * * * to the minor, who conclude that no genuine issue of material fact then allegedly gave it to her friend and exists and that the moving party is entitled to went to Italy, would be liable under the judgment as a matter of law." Id. (quoting Romell circumstances of this case where there is v. Catanzaro, 686 A.2d 91, 93 (R.I. 1996)); see no allegation that the injury occurred also Weaver 1 American Power Conversion because any minor - or adult, for that Corp., 863 A.2d 193, 200 (R.I. 2004). matter - imbibing the alcohol, which caused, in whole or in part, that Did Defendant Owe a Duty of individual's intoxication. It would seem Reasonable Care to Plaintiff? that there's no statutory authority for this To prevail on a claim of negligence, "a plaintiff cause of action [and] that the misconduct, must establish a legally cognizable duty owed by a if any, of the defendant was rendered defendant to a plaintiff, a breach of that duty, remote by intervening independent acts of proximate causation between the conduct and the others." resulting injury, and the actual loss or damage." Mills v. State Sales, Inc., 824 A. 2d 461, 467-68 (R.I. 2003) (quoting Jeward v. Halpin, 567 A.2d368, 370 (R.I. 1989)). The crux of this appeal is a duty must be based on conduct "sufficiently whether defendant owed plaintiff a legal duty, likely to result in the kind of harm" suffered by the which is a question of law. Martin v. Marciano, plaintiff, Falpe, 821 A.2d at 705, or that "in order 871 A.2d 911, 915 (R.I. 2005) (citing Folpe v to temper foreseeability * * * an adequate nexus Gallagher, 821 A.2d 699, 705 (R.I. 2003)). If no must exist between the foreseeability of such duty exists, then plaintiff's claim must fail, as [plaintiff's] harm and the actions of the a matter of law. If the evidence establishes that a defendant." Marchen v. Parsons, 638 A.2d 1047, duty did run from defendant to plaintiff, them 1051 (R.I. 1994). plaintiff is entitled to a determination of the remaining factual questions - did defendant The plaintiff argues that the risk of the type of breach the duty of care, and if so, was that breach harm she suffered was within defendant's range of the proximate cause of plaintiff's harm? See Terry apprehension because it knew or should have v. Central Auto Radiators, loc., 732 A 2d 713, 718 known that grain alcohol is commonly used by (R.I. 1999) ("Whether [defendant's] inaction minors to engage in fire play. The only evidence amounted to a breach of the duty owed to plaintiff presented to support this contention was [plaintiff] was a question of fact which should the opinion of Dr. Paolino. However, the trial have been put to the trial jury."); Splendorio v justice rejected his opinion, saying: "THe] may Bray Demolition Co., 682 A.2d 461, 467 (R.I. well be qualified as an expert in psychiatry, in 1996) ("Ordinarily the determination of proximate pharmacology, perhaps in treating those who cause * * * is a question of fact that should not be suffer from substance abuse," but he is not decided by summary judgment. "). "RAT qualified to give an opinion on whether it is foreseeable that adolescents would light grain This Court determines whether a duty exists on a alcohol on fire. "case-by-case basis," considering "all relevant factors, including the relationship between the The admissibility of a proffered expert opinion is a parties, the scope and burden of the obligation to matter left to the sound discretion of the trial be imposed upon the defendant, public policy justice; absent an abuse of that discretion, this considerations,* + + + and the "foreseeability of Court will not disturb the trial justice's ruling harm to the plaintiff."" Martin, 871 A.2d at 915 Becon v. Malowin, 845 A.2d 298, 301 (R.I. 2004); (quoting Folpe, 821 A.2d at 705, and Banks v. Geloso v. Kenny, 812 A 2d 814, 817 (R.I. 2002) Bowen's Landing Corp., 522 A.2d 1222, 1225 Having carefully reviewed the record, we are (R.I. 1987)). The linchpin in the analysis of satisfied that the trial justice did not abuse her whether a duty flows from a defendant to a discretion by disregarding Dr. Paolino's opinion. plaintiff is foreseeability. Splendorio, 682 A.2d at From Dr. Paolino's education and experience, one 466; see Pope, 821 A.2d at 705. As Justice could reasonably conclude that he was not Cardozo of the New York Court of Appeals said: qualified to give an opinion on a liquor store "The risk reasonably to be perceived defines the owner's actual or constructive knowledge about an duty to be obeyed, and risk imports relation; it is adolescent's tendency to ignite grain alcohol for risk to another or to others within the range of sport. See Geloso, 812 A.2d at 817 ("A review for apprehension." Palsgraf v. Long Island Railroad abuse of discretion requires us to examine the Co., 248 N.Y. 339, 162 N.E. 99, 100 (1928), see ruling to ensure that the trial justice's discretion also Hennessey v. Pyne, 694 A.2d 691, 697 (R.I. has been soundly and judicially exercised, " + . 1997). This Court has expressed this concept of with just regard to what is right and equitable limiting the scope of a defendant's duty according under the circumstances and the law.") (quoting to risks he or she reasonably perceived, saying that Debar v. Women Infants Hospital, 762 A 2d 1182, 1185-86 (R.I. 2000)).Further, we are not convinced that this type of excites the tempers, emotions and actions of those harm is a foreseeable consequence of the sale of who indulge in them." I'd at 917 (quoting Fisher v alcohol to minors. The plaintiff asserts that Robbins, 78 Wyo. 50, 319 P.2d 116, 126 (1957)). defendant owed her a duty arising out of G.L. 1956 8 3-8-5. She contends that her injuries were The present case is distinguishable from Marow in foreseeable by RC Liquors by virtue of the sheer two crucial ways. First, the minors in Martin were quantity and volatile nature of the grain alcohol it guests at the defendant's home and under her allegedly sold to seventeen-year-old Andrews, in supervision while illegally consuming alcohol, violation of $ 1-8-5. According to plaintiff, the whereas Buonanno, Selwyn, and the others size of the bottle of Everclear and the label gathered at the bam were neither on RC Liquors' warning of the product's flammability put property nor under its supervision when the fire defendant on notice that Andrews intended to injuring plaintiff occurred. Second, the evidence in Martin suggested that the defendant made alcohol 683 share the grain alcohol with other minors "gas and that one of those minors might get burned. available for consumption by the guests gathered at her house, giving rise to a special duty to In Martin, 871 A 2d at 913, we held that a protect those guests, but there has been no defendant-homeowner was not entitled to suggestion that RC Liquors sold grain alcohol to summary judgment in a suit to recover damages Andrews for the purpose of igniting it. suffered by a minor who consumed alcohol on her The public policy considerations that shaped the property. The plaintiff was a guest at a party the duty of care in Martin are not present in this case. defendant hosted for her daughter, with two keys of beer and a port-a-john available; he admitted to At issue here is whether a purveyor of alcohol drinking approximately six beers from the kegs. owes a duty to protect minors, to whom he or she Ad. at 914. There was an altercation, and the allegedly supplied alcoholic beverages, from plaintiff was struck in the head by a baseball bat another person's deliberate act of pouring the wielded by a third person, causing the injuries for alcohol over an open flame. The statutes which he sued the defendant and others. Id. The regulating alcohol and minors reflect a public Superior Court granted the defendant's motion for policy against underage drinking and not summary judgment, finding that she had no duty incendiary behavior. Martin, 871 A.2d at 916, see to protect the plaintiff from the attack because it also G.L. 1956 $ 3-14-6(a) ("A defendant * * was unforeseeable. Id. This Court vacated the who negligently serves liquor to a minor is liable judgment, holding that a social host owes a special for damages proximately caused by the minor's duty to his or her underage guests when he or she consumption of the liquor. "). (Emphasis added.) provides those guests with intoxicants. I'd. at 915- Moreover, as in Martin, 871 A.2d at 915, 917, 16. We reasoned that holding social hosts to such a public policy is not the sole factor, foreseeability duty furthered the public policy reflected in our limits the scope of duty. Even if we assume, as we state laws banning underage drinking and are required to do for purposes of our review, that prohibiting adults from supplying alcohol to RC Liquors sold the grain alcohol to Andrews, a minors. Id. at 916. Furthermore, we concluded that minor, we are satisfied that defendant could not it was foreseeable that when upwards of fifty reasonably perceive the risk that several weeks young people are at a party where alcohol is later, while the minor was out of the country, some available, a violent altercation is foreseeable, other youth would pour the substance onto an because "the use of intoxicants frequently unduly open flame, causing flames to engulf Selwyn. Selwyn was not injured as a result of consumption of the grain alcohol nor was she vulnerable to adangerous condition created by defendant No caused by some ultrahazardous or abnormally $81 special duty arises from RC *359 Liquors' alleged dangerous activity of the defendant but not when illegal sale of the Everclear to protect those placed they are caused by an ultrahazardous or in harm's way by the deliberate ignition of the abnormally dangerous material. Id. at 465-66. To alcohol by a third person determine whether an activity is ultrahazardous or This case is also distinguishable from abnormally dangerous, courts in this jurisdiction Midpe v. Gallagher, 821 A24 619 (R.L. consider the following factors: 2003). In Helper, the defendant's mentally- "(a) existence of high degree of risk of ill adel son resided with her in a small some han to the person, land or chattels ranch house and kept a shotgun, pistol, of others; ammunition, and sundry gun paraphernalia in the basement. M. al 701-13. One day, "(bj likelihood that the harm that results defendant's son surfaced from the basement from it will be great; and, unprovoked, shot a neighbor three times in the head and body. Id al 703. A "(c) inability to eliminate the risk by the jury held defendant liable for the wringful exercise of reasonable care; death of the neighlis, but the trial justice "(dj extent to which the activity is not a granted the defendant's motion for a new trial. M. at 704. On appeal, we concluded matter of common usage, that the jury could properly infer that "(e) inappropriateness of the activity to the defendant was present when her son place where it is carried on; and engaged in the unreasonably dangerous behavior giving rise to the neighbor's "(f) extent to which its value to the untimely death and had the shility to community is outweighed by its dangerous control her son's use of her house. M. at attributes." N. at 466 (quoting 706-07. We held that, under premises Restatement (Second) Torts $ 520 (1977)) liability principles, the defendant owed a duty to protect third persons "within the To give our analysis some perspective, the drafters zone of danger" from the urreasonible risk explained that: "The harm threatened must be posed by her sun's arsenal Id at 709-10 major in degree, and sufficiently serious in its The present case is mol a premises liability possible consequences to justify holding the cine, Selwyn does mol assert that her defendant strictly responsible for subjecting others injuries resulted from an unreasonably to an unusual risk." 3 Restatement (Second) Farts dangerous condition on or within close 4 520, cut g at 38. They provided the following proximity In BC Liquors' property. examples of the type of harm: Does Plaintiff Have a Cause of Action Under a Strict Liability Theory? The plaintiff asserts that selling grain alcohol in a minor is an ultrahazardous activity, warranting application of strict liability. Whether a defendant has engaged in an ultrahazardous or abnormally dangerous activity is a question of law. Splendorio, 682 A.2d at 465. Strict liability attaches when a plaintiff's injuries are proximately"Some activities, such as the use of atomic Moreover, as the drafters commented, abnormally energy, necessarily and inevitably involve dangerous activities are those that cannot be made major risks of harm to others, no matter safe by the use of due care. 3 Restatement how or where they are carried on. Others, (Second) Forts $ 520, crit. h ("Most ordinary such as the storage of explosives, activities can be made entirely safe by the taking necessarily involve major risks unless they of all reasonable precautions; and when safety are conducted in a remote place or to a cannot be attained by the exercise of due care very limited extent. Still others, such as the there is reason to regard the danger as an abnormal operation of a ten-ton traction engine on one."). We are satisfied that, although selling grain the public highway, which crushes alcohol or alcoholic beverages to a minor is a conduits beneath it, involve such a risk crime and may pose serious risks to the purchaser only because of the place where they are and others, it is not an ultrahazardous or carried on." Id. abnormally dangerous activity as those terms are recognized With these benchmarks in mind, while we do not mean to trivialize the risks associated with Conclusion providing minors with alcoholic beverages, For the reasons set forth herein, the judgment is flammable or otherwise, such activity does not rise affirmed, and the papers in the case are remanded to the level addressed by $ 520 of the restatement. to the Superior Court. Justice FLAHERTY did not participate