Saturday, December 7, 2013
The Associated Press
(Continued from page 1)
But the bar owners said the stairs were off-limits to customers. They also said Freeman's heavy alcohol consumption that night contributed to his fall.
Freeman drank at a party and another bar before arriving at Our House East. He had a blood-alcohol level of 0.208, more than twice the legal limit for drivers in Massachusetts.
The judge found that while Freeman was under the influence of alcohol at the time of his fall, he was an experienced drinker who had built up a "serious tolerance" to alcohol and did not exhibit the usual deficiencies caused by drinking, including impaired walking.
"I accept that, until he began to fall, he had no knowledge of the presence of the staircase directly behind the vinyl strips," Fahey wrote.
Aylward said the judge should not have awarded damages under the consumer protection law because Freeman's death occurred in a private part of the business.
"The stairway was in a private part of the restaurant. It's in the very back of the kitchen. It's not meant for customers to use," Aylward said. "He wasn't there to use the stairs. He was there to stand at the bar and visit friends. The condition of the stairs had nothing to do with the consumer relationship between Mr. Freeman and Our House East restaurant."
During the trial, the bar owners presented evidence that the stairs had never been cited by any building inspector as a code violation, despite having been built more than two decades before Freeman's fall.
"My clients had no reason to believe that they had done anything wrong," Aylward said.